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Nebraska Supreme Court Advance S

302 Nebraska Report

STATE v. CHAIREZ

Cite as 302 Neb. 731

State of Nebraska, appellee, v. Hab

Quintero Chairez, appellan

___ N.W.2d ___

Filed March 29, 2019. No. S-18-646.

1. Effectiveness of Counsel: Appeal and Error. Appellate review of a 

claim of ineffective assistance of counsel is a mixed question of law and 

fact. When reviewing a claim of ineffective assistance of counsel, an 

appellate court reviews the factual findings of the lower court for clear 

error. With regard to the questions of counsel’s performance or prejudice 

to the defendant as part of the two-pronged test articulated in Strickland 

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 

an appellate court reviews such legal determinations independently of 

the lower court’s decision.

2. ____: ____. In reviewing claims of ineffective assistance of counsel on 

direct appeal, an appellate court decides only whether the undisputed 

facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and 

whether the defendant was or was not prejudiced by counsel’s alleged 

deficient performance.

3. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

4. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial 

counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective 

performance which is known to the defendant or is apparent from the 

record, in order to preserve such claim. Once raised, the appellate court 

will determine whether the record on appeal is sufficient to review the 

merits of the ineffective performance claims.

5. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An 

ineffective assistance of counsel claim will not be addressed on direct 

appeal if it requires an evidentiary hearing.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/03/2019 08:06 AM CDT
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STATE v. CHAIREZ

Cite as 302 Neb. 731

6. Sentences. When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or 

record of law-abiding conduct, and (6) motivation for the offense, as 

well as (7) the nature of the offense and (8) the violence involved in the 

commission of the crime.

Appeal from the District Court for Lancaster County: Darl

S. Ideus, Judge. Affirme

Timothy S. Noerrlinger for appellant.

Douglas J. Peterson, Attorney General, Erin E. Tangeman, 

and, on brief, Joe Meyer for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Freudenberg, 

I. NATURE OF CASE

Pursuant to a plea agreement with the State, the defendant 

entered no contest pleas and was subsequently convicted of 

possession of a firearm by a prohibited person, a Class ID 

felony, in violation of Neb. Rev. Stat. § 28-1206(3) (Supp. 

2017); attempted first degree assault, a Class IIA felony, in 

violation of Neb. Rev. Stat. §§ 28-201 and 28-308 (Reissue 

2016); and use of a firearm to commit a felony, a Class IC 

felony, in violation of Neb. Rev. Stat. § 28-1205(1) (Reissue 

2016). The lower court imposed an aggregate sentence of 42 to 

55 years in prison. The central issues on appeal are whether the 

defendant’s sentences were excessive and whether his assistance of trial counsel was ineffective for failing to meet with 

the defendant with an interpreter present, investigate witnesses 

and exculpatory evidence, and file a motion to suppress the 

defendant’s statements to law enforcement officers.

II. FACTS

On June 11, 2017, at approximately 12:20 p.m., Habacuc 

Quintero Chairez, while driving on Interstate 80 in Lancaster 
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STATE v. CHAIREZ

Cite as 302 Neb. 731

County, Nebraska, used a firearm to shoot at another vehicle 

four times, hitting the targeted vehicle at least twice. The 

vehicle was occupied by Nicholas Pearson and his 15-yearold son; however, no one was injured. Pearson called the 911 

emergency dispatch service and provided an account of the 

incident, including a description of the vehicle that Chairez 

was driving.

State troopers located Chairez in his vehicle on Interstate 80, 

partially blocking one lane of traffic. When the state troopers 

initiated contact with Chairez, he displayed a handgun outside 

of the driver’s-side window. He was then ordered out of his 

vehicle at gunpoint and taken into custody.

Chairez was eventually advised of his Miranda rights and 

interviewed by a member of the Nebraska State Patrol with the 

assistance of an interpreter. Chairez admitted to having fired 

the gun at Pearson’s vehicle, stating that he thought the vehicle 

was following him. During the interview, he further admitted 

that he purchased the firearm and acknowledged that he was a 

convicted felon on federal parole.

Chairez was originally charged with possession of a firearm by a prohibited person under § 28-1206(3), discharge of 

a firearm near a vehicle under Neb. Rev. Stat. § 28-1212.04 

(Reissue 2016), attempted first degree assault under §§ 28-201 

and 28-308, and use of a firearm to commit a felony under 

§ 28-1205(1). Pursuant to a plea agreement with the State, 

Chairez appeared with counsel and entered pleas of no contest to the charges of possession of a firearm by a prohibited 

person, attempted first degree assault, and use of a firearm to 

commit a felony. In exchange for the pleas, the State agreed to 

dismiss the charge of discharge of a firearm near a vehicle. The 

State also agreed to not file additional charges in the matter or 

seek any habitual criminal enhancements, which would have 

exposed Chairez to several significant mandatory minimum 

sentences if he were convicted.

During Chairez’ plea hearing, the district court judge and 

Chairez engaged in a thorough colloquy in assessing the 
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Cite as 302 Neb. 731

validity of his pleas. When questioned by the judge, he admitted, among other things, that (1) he had no difficulty understanding the proceedings before him, (2) he understood that 

he was waiving his right to present witnesses in his case, (3) 

his attorney spoke to him and he understood the immigration 

consequences of his pleas and convictions, (4) his counsel 

was competent, and (5) his counsel did not refuse or fail to do 

anything Chairez asked of him throughout his representation 

during this case.

Although an interpreter was present throughout the proceeding, Chairez chose not to utilize the interpreter at all, 

immediately answering each question in English when asked 

in English by the judge. The judge further inquired regarding 

Chairez’ responding in English without the use of the interpreter. Chairez indicated that when he answered in English, he 

was doing so because he understood and was comfortable communicating with the judge in English. In an abundance of caution, the judge encouraged Chairez to use the interpreter if he 

needed to as they continued through the proceedings. Chairez 

acknowledged the judge’s statement that interpretive service 

would continue to be available and then continued through the 

remainder of the proceedings using English.

Based on the evidence presented and the answers provided 

by Chairez in the assessment of his pleas, the district court 

found that Chairez had entered his pleas freely, knowingly, 

voluntarily, and intelligently, and found Chairez guilty beyond 

a reasonable doubt on all charges in the amended information. 

After a subsequent sentencing hearing, the court sentenced 

Chairez to an aggregate sentence of 42 to 55 years in prison, 

with credit for 368 days served.

Chairez appeals. He is represented by different counsel 

on appeal.

III. ASSIGNMENTS OF ERROR

Chairez assigns that the district court erred in affirming the 

county court’s excessive sentences. Chairez also assigns on 

appeal that he received ineffective assistance of trial counsel.
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Cite as 302 Neb. 731

IV. STANDARD OF REVIEW

[1] Appellate review of a claim of ineffective assistance of 

counsel is a mixed question of law and fact.1 When reviewing a claim of ineffective assistance of counsel, an appellate 

court reviews the factual findings of the lower court for clear 

error.2 With regard to the questions of counsel’s performance 

or prejudice to the defendant as part of the two-pronged test 

articulated in Strickland v. Washington,

3

 an appellate court 

reviews such legal determinations independently of the lower 

court’s decision.4

[2] In reviewing claims of ineffective assistance of counsel 

on direct appeal, an appellate court decides only whether the 

undisputed facts contained within the record are sufficient to 

conclusively determine whether counsel did or did not provide 

effective assistance and whether the defendant was or was not 

prejudiced by counsel’s alleged deficient performance.5

[3] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court.6

V. ANALYSIS

1. Ineffective Assistance of 

We first address Chairez’ arguments that he received ineffective assistance of trial counsel. Chairez argues that his trial 

counsel was ineffective because counsel failed to (1) utilize an 

interpreter when meeting with Chairez; (2) investigate, collect 

evidence from, and meet with Chairez’ wife and mother, who 

allegedly had digital evidence to corroborate that Chairez had 

1 State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

2 Id.

3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

4 State v. Filholm, supra note 1.

5 State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017).

6 State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
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been recently threatened by members of a Mexican drug cartel; and (3) file a motion to suppress Chairez’ statements made 

to state troopers when he was under the influence of methamphetamine. We find that the record is sufficient on direct 

appeal to address Chairez’ first two contentions. However, the 

record is insufficient to address his third claim.

[4] When a defendant’s trial counsel is different from his or 

her counsel on direct appeal, the defendant must raise on direct 

appeal any issue of trial counsel’s ineffective performance 

which is known to the defendant or is apparent from the record, 

in order to preserve such claim.7 Once raised, the appellate 

court will determine whether the record on appeal is sufficient 

to review the merits of the ineffective performance claims.8

[5] We have said that the fact that an ineffective assistance 

of counsel claim is raised on direct appeal does not necessarily 

mean that it can be resolved.9 This is because the trial record 

reviewed on appeal is generally “‘devoted to issues of guilt or 

innocence’” and does not usually address issues of counsel’s 

performance.10 The determining factor is whether the record is 

sufficient to adequately review the question.11 An ineffective 

assistance of counsel claim will not be addressed on direct 

appeal if it requires an evidentiary hearing.12

If the record is sufficient to address the ineffective assistance of counsel claim, an appellate court reviews the factual 

findings of the lower court for clear error.13 With regard to the 

questions of counsel’s performance or prejudice to the defendant 

7 See, State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014); State 

v. Williams, 259 Neb. 234, 609 N.W.2d 313 (2000). See, also, State v. 

Filholm, supra note 1.

8 State v. Abdullah, supra note 7.

9 State v. Filholm, supra note 1.

10 Id. at 769, 848 N.W.2d at 578.

11 State v. Filholm, supra note 1.

12 State v. Abdullah, supra note 7.

13 See State v. Filholm, supra note 1.
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as part of the two-pronged test articulated in Strickland,

14 an 

appellate court reviews such legal determinations independently of the lower court’s decision.15 To show deficient performance, a defendant must show that counsel’s performance 

did not equal that of a lawyer with ordinary training and skill 

in criminal law in the area.16 To show prejudice, the defendant 

must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would 

have been different.17

(a) Failure to Use Interpreter During 

Meetings With Trial Counsel

First, Chairez argues that his trial counsel was ineffective 

because he neglected to utilize an interpreter when meeting with Chairez. He contends that although he speaks some 

English, his native language is Spanish. Chairez further contends that he did not understand many of the legal terms that 

his trial counsel used during their conferences prior to Chairez’ 

pleas. In addition, Chairez argues that because of the language barrier, Chairez’ trial counsel failed to comprehend that 

Chairez was asking him to investigate a potential affirmative 

defense and Chairez was not properly advised as to the mandatory minimum charges and immigration consequences of his 

crimes prior to entering his pleas.

These assertions lack merit. During the plea colloquy, 

Chairez, answering in English, admitted that he had no difficulty understanding the judge or the proceedings before him. 

He also admitted that the judge did not use any word or phrase 

that he did not understand throughout the colloquy. Chairez 

expressly acknowledged during the plea colloquy that his 

counsel did not neglect or refuse to do anything that Chairez 

requested him to do during counsel’s representation of Chairez. 

14 Strickland v. Washington, supra note 3.

15 State v. Filholm, supra note 1.

16 State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013).

17 Id.
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Cite as 302 Neb. 731

He further expressly acknowledged to the judge that his trial 

counsel performed competently and advised him of all of his 

rights, including his immigration consequences, as well as the 

mandatory minimum sentence requirements of his charges. 

Even further, the court advised Chairez of both the immigration 

consequences of his pleas, as well as the mandatory minimum 

sentences associated with Chairez’ charges.

Throughout his plea hearing, Chairez clearly stated that 

counsel did not (1) act incompetently, (2) fail to investigate 

anything that Chairez requested of him, or (3) fail to properly 

advise Chairez as to the mandatory minimum charges and 

immigration consequences of his crimes prior to entering his 

pleas. Because these statements in the record affirmatively 

refute Chairez’ claim that his counsel’s performance did not 

equal that of a lawyer with ordinary training and skill in criminal law in the area, we find trial counsel’s performance was 

not deficient for failing to utilize an interpreter during Chairez’ 

attorney-client meetings. Chairez does not challenge the knowingness and voluntariness of his admissions and responses during his colloquy with the district court. We conclude the record 

on direct appeal sufficiently shows that Chairez’ counsel’s failure to utilize an interpreter during their meetings did not render 

counsel’s performance deficient.

(b) Failure to Collect Evidence and 

Interview Exculpatory Witnesses

Second, Chairez contends that trial counsel was ineffective 

because counsel failed to investigate, collect evidence from, 

and meet with exculpatory witnesses regarding an affirmative 

defense. Specifically, Chairez asserts that though he indicated 

to counsel that his wife and mother had digital evidence to corroborate that a recent threat on Chairez’ life had been made by 

a Mexican drug cartel, counsel failed to investigate this assertion and interview these witnesses as related to this affirmative defense. As a result, Chairez was prejudiced because this 

defense could have been used at trial or as a mitigating factor 

in sentencing to explain why he fired into the vehicle.
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STATE v. CHAIREZ

Cite as 302 Neb. 731

The record on appeal refutes this contention. As stated 

above, Chairez explicitly stated during his plea colloquy that 

he had told his attorney everything he knew about the cases, 

there was nothing that could help him in connection with the 

case that he had not shared with his attorney, he was satisfied 

with the job of his counsel, and there was nothing that Chairez 

asked him to do that counsel failed or refused to do. Again, 

Chairez does not challenge the knowingness and voluntariness 

of his responses in his plea colloquy. Based on his admission that counsel did not neglect or refuse to do anything that 

Chairez asked of him, we must find that Chairez’ counsel was 

not ineffective, because based on Chairez’ clear and unchallenged admissions in the record, his counsel’s performance was 

not deficient as a matter of law.

(c) Failure to File Motion to Suppress

Lastly, Chairez argues that trial counsel was ineffective 

by failing to file a motion to suppress his statements made 

to state troopers. Chairez contends that his Miranda waiver 

was involuntarily made because he was under the influence 

of methamphetamine at the time and that he had informed 

counsel of that fact. The State concedes that the record is not 

sufficient to make a determination on this claim. The record 

on appeal provides no indication of the circumstances and 

facts surrounding Chairez’ Miranda waiver on the day of his 

arrest. Nor is the record indicative of any potential trial strategy utilized by trial counsel by rejecting to file a motion to 

suppress Chairez’ statements to the state troopers on the day 

of his arrest. In similar circumstances, we have found the trial 

record insufficient to determine the merits of a claim on direct 

appeal that counsel was ineffective for failing to file a motion 

to suppress.18 We find that the record is insufficient to make 

18 See, State v. Wabashaw, 274 Neb. 394, 740 N.W.2d 583 (2007); State v. 

Dawn, 246 Neb. 384, 519 N.W.2d 249 (1994); State v. Balvin, 18 Neb. 

App. 690, 791 N.W.2d 352 (2010); State v. Heslep, 17 Neb. App. 236, 

757 N.W.2d 386 (2008); State v. Greer, 7 Neb. App. 770, 586 N.W.2d 654 

(1998).
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a determination as to whether trial counsel was ineffective for 

failing to file a motion to suppress.

2. Excessive Sen

We turn next to Chairez’ contention that the district court 

erred by imposing excessive sentences. When a trial court’s 

sentence is within the statutory guidelines, the sentence will be 

disturbed by an appellate court only when an abuse of discretion is shown.19

Chairez admits that the sentences he received were within 

the statutory limits. Therefore, Chairez’ sentences will be disturbed only upon a finding of abuse of discretion. An abuse of 

discretion occurs when a trial court’s decision is based upon 

reasons that are untenable or unreasonable or if its action is 

clearly against justice or conscience, reason, and evidence.20

[6] Chairez argues that the court abused its discretion 

because it failed to fashion sentences that fit Chairez, “given 

[his] history, character, and condition.”21 When imposing a 

sentence, a sentencing judge should consider the defendant’s 

(1) age, (2) mentality, (3) education and experience, (4) social 

and cultural background, (5) past criminal record or record 

of law-abiding conduct, and (6) motivation for the offense, 

as well as (7) the nature of the offense and (8) the violence 

involved in the commission of the crime.22 The appropriateness 

of a sentence is necessarily a subjective judgment and includes 

the sentencing judge’s observation of the defendant’s demeanor 

and attitude and all the facts and circumstances surrounding the 

defendant’s life.23

Based on the record before us, the sentencing court did 

not consider any inappropriate or unreasonable factors in 

19 State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).

20 State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).

21 Brief for appellant at 15.

22 State v. Huff, supra note 19.

23 State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).
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determining the sentences. The presentence investigation 

revealed that Chairez had a “troubling, violent criminal history,” including charges of attempted murder, murder, and 

kidnapping. We find that the court did not make its decision 

based upon reasons that are untenable or unreasonable, nor 

was its action clearly against justice or conscience, reason, 

and evidence.

VI. CONCLUSION

For the foregoing reasons, we find that Chairez’ ineffective assistance of counsel assertions regarding his counsel’s 

failure to utilize an interpreter when meeting with Chairez and 

counsel’s failure to investigate, collect evidence, and interview 

witnesses are meritless. However, we find that the record is 

insufficient to address whether Chairez’ assistance of trial 

counsel was ineffective for failing to file a motion to suppress 

regarding Chairez’ statements. Lastly, we find that the district 

court did not abuse its discretion when sentencing Chairez. 

Therefore, we affirm the decision of the district court.

Affirmed