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Cite as 295 Neb. 170

State of Nebraska, appellee, v. Rosario

Betancourt-Garcia, appellant.

___ N.W.2d ___

Filed December 2, 2016. No. S-15-1001.

1. Appeal and Error. An appellate court does not consider errors which 

are argued but not assigned.

2. Judgments: Pleadings: Plea in Abatement: Appeal and Error. 

Regarding questions of law presented by a motion to quash or plea in 

abatement, an appellate court is obligated to reach a conclusion independent of the determinations reached by the trial court.

3. Convictions: Evidence: Appeal and Error. Regardless of whether 

the evidence is direct, circumstantial, or a combination thereof, and 

regardless of whether the issue is labeled as a failure to direct a verdict, 

insufficiency of the evidence, or failure to prove a prima facie case, the 

standard is the same: In reviewing a criminal conviction, an appellate 

court does not resolve conflicts in the evidence, pass on the credibility 

of witnesses, or reweigh the evidence; such matters are for the finder 

of fact, and a conviction will be affirmed, in the absence of prejudicial 

error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

4. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is 

a question of law.

5. Courts: Appeal and Error. Appellate review is limited to those errors 

specifically assigned as error in an appeal to a higher appellate court.

6. Criminal Law: Limitations of Actions: Indictments and Informations. 

It is generally sufficient in an information to describe the crime charged 

in the language of the statute and it is not ordinarily necessary to negative the exceptions contained in a statute defining a crime if they are not 

descriptive of the offense. The statute of limitations is not descriptive of 

the offense, and it is not necessary to plead an exception which makes 

it inoperative.

Nebraska Supreme Court Online Library

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

12/02/2016 09:10 AM CST
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7. Criminal Law: Limitations of Actions: Pleadings: Pleas. Statutes of 

limitations, as applied to criminal procedure, need not be pleaded and 

may be raised under the general plea of not guilty.

8. Criminal Law: Indictments and Informations: Proof. The State, 

within the information, has the burden to set forth all of the elements of 

the crime charged.

9. Criminal Law: Limitations of Actions: Words and Phrases. For the 

purposes of Neb. Rev. Stat. § 29-110(1) (Reissue 1995), the phrase 

“fleeing from justice” means leaving one’s usual abode or leaving the 

jurisdiction where an offense has been committed, with intent to avoid 

detection, prosecution, or punishment for some public offense.

10. Convictions: Evidence: Appeal and Error. An appellate court does not 

resolve conflicts in the evidence, pass on the credibility of the witnesses, 

or reweigh the evidence; such matters are for the finder of fact, and a 

conviction will be affirmed, in the absence of prejudicial error, if the 

properly admitted evidence, viewed and construed most favorably to the 

State, is sufficient to support the conviction.

11. Criminal Law: Directed Verdict. In a criminal case, the court can 

direct a verdict only when (1) there is a complete failure of evidence 

to establish an essential element of the crime charged or (2) evidence is 

so doubtful in character and lacking in probative value that a finding of 

guilt based on such evidence cannot be sustained.

12. Effectiveness of Counsel: Records: Appeal and Error. The fact that 

an ineffective assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved. The determining factor is 

whether the record is sufficient to adequately review the question.

13. Effectiveness of Counsel: Proof: Appeal and Error. An appellant must 

make specific allegations of the conduct that he or she claims constitutes 

deficient performance by trial counsel when raising an ineffective assistance claim on direct appeal.

14. ____: ____: ____. To prevail on a claim of ineffective assistance of 

counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 

80 L. Ed. 2d 674 (1984), the defendant must show that his or her counsel’s performance was deficient and that this deficient performance 

actually prejudiced the defendant’s defense. An appellate court may 

address the two prongs of this test, deficient performance and prejudice, 

in either order.

15. Effectiveness of Counsel: Proof. To show prejudice on a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result 

of the proceeding would have been different.

16. Effectiveness of Counsel: Speedy Trial: Appeal and Error. When a 

defendant alleges he or she was prejudiced by trial counsel’s failure to 
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properly assert the defendant’s speedy trial rights on appeal, the court 

must consider the merits of the defendant’s speedy trial rights under 

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

674 (1984).

17. Effectiveness of Counsel: Speedy Trial. Only if a motion for discharge on speedy trial grounds should have resulted in the defendant’s 

absolute discharge, thus barring a subsequent trial and conviction, 

could a failure by counsel to make the motion for discharge be deemed 

prejudicial.

18. Speedy Trial. Nebraska’s speedy trial statutes require that those who are 

charged with crimes be brought to trial within 6 months, as calculated 

by the applicable statute. To calculate the deadline for trial under the 

speedy trial statutes, a court must exclude the day the State filed the 

information, count forward 6 months, back up 1 day, and then add any 

time excluded under Neb. Rev. Stat. § 29-1207(4) (Cum. Supp. 2014).

19. ____. If the State does not bring the defendant to trial within the permissible time, the court must order an absolute discharge from the 

offense charged.

20. Speedy Trial: Indictments and Informations. For a felony, the 

speedy trial clock begins to run on the date that the indictment is 

returned or the information is filed, not on the date on which the complaint is filed.

21. Constitutional Law: Speedy Trial. Determining whether a defendant’s 

constitutional right to a speedy trial has been violated requires a balancing test in which the courts must approach each case on an ad hoc basis. 

This balancing test involves four factors: (1) length of delay, (2) the 

reason for the delay, (3) the defendant’s assertion of the right, and (4) 

prejudice to the defendant. None of these four factors standing alone is 

a necessary or sufficient condition to the finding of a deprivation of the 

right to speedy trial. Rather, the factors are related and must be considered together with other circumstances as may be relevant.

22. ____: ____. In analyzing the prejudice factor of the four-factor test 

to determine whether constitutional speedy trial rights have been violated, the U.S. Supreme Court enumerated three aspects: (1) preventing 

oppressive pretrial incarceration, (2) minimizing anxiety and concern of 

the defendant, and (3) limiting the possibility that the defense will be 

impaired by dimming memories and loss of exculpatory evidence.

23. Constitutional Law: Speedy Trial: Presumptions. Until there is some 

delay which is presumptively prejudicial, there is no necessity for 

inquiry into the other factors that go into the balance when determining 

whether constitutional speedy trial rights have been violated.

24. Constitutional Law: Speedy Trial. A showing of actual prejudice to 

a defendant alleging violation of constitutional speedy trial rights is 
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required if the government exercised reasonable diligence in pursuing 

the defendant.

25. Kidnapping: Sentences. The provisions of Neb. Rev. Stat. § 28-313(3) 

(Reissue 1995) are mitigating circumstances which may reduce the penalty for kidnapping and are therefore a matter for the court at sentencing, 

not the jury.

26. Kidnapping. Rescue is not a voluntary release of a kidnapping victim.

27. Appeal and Error: Words and Phrases. Plain error exists where there 

is error, plainly evident from the record but not complained of at trial, 

which prejudicially affects a substantial right of a litigant and is of such 

a nature that to leave it uncorrected would cause a miscarriage of justice 

or result in damage to the integrity, reputation, and fairness of the judicial process.

28. Constitutional Law: Criminal Law: Pleas. The considerations 

involved in determining whether one freely, intelligently, voluntarily, 

and understandingly pleads guilty have no application where a criminal 

defendant pleads not guilty, for in such a circumstance, the defendant 

does not surrender the constitutional rights inherent in a trial.

Appeal from the District Court for Madison County: Mark

A. Johnson, Judge. Affirmed in part, and in part vacated and 

remanded for resentencing.

Mark D. Albin for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Kelch, J.

I. INTRODUCTION

Following a jury trial, Rosario Betancourt-Garcia 

(Betancourt) appeals his convictions and sentences for kidnapping, use of a firearm to commit kidnapping, and conspiracy to 

commit kidnapping. On appeal, Betancourt alleges that the district court for Madison County erred in overruling his motion 

to quash, in overruling his motion for directed verdict, and in 

sentencing him for kidnapping. Further, Betancourt contends 
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that he received ineffective assistance of counsel. We reject 

Betancourt’s claims, but we find plain error in the sentencing 

for the conspiracy conviction. Therefore, we affirm in part and 

in part vacate and remand for resentencing.

II. FACTS

On November 15, 2003, officers of the Madison Police 

Department responded to a call and found a young man who 

had been bound and gagged. After the young man related that 

Betancourt had kidnapped him, the Madison Police Department 

conducted an immediate search for Betancourt, but did not 

find him.

On November 17, 2003, the Madison County Court issued 

warrants for the arrest of Betancourt and another suspect. That 

day, the State filed an information in county court, charging 

Betancourt with kidnapping and use of a deadly weapon to 

commit a felony.

On May 7, 2004, Texas authorities arrested Betancourt in 

Plano, Texas, based on the Nebraska warrant. On May 11, 

Betancourt signed a waiver of extradition proceedings.

On May 17, 2004, the Madison County sherriff’s office 

dispatched transport personnel to Texas to extradite Betancourt 

back to Nebraska. At that time, the Madison County sherriff’s office withdrew the warrant from a national notification 

system which was termed at trial the “teletype system” and 

placed a “hold” on Betancourt in Texas, but the warrant itself 

remained active. That day, Texas authorities mistakenly transferred Betancourt to the custody of the “immigration services,” 

and subsequently, he was deported to Mexico.

On May 17, 2004, the Madison County sherriff’s office 

directed its transport personnel, then en route to Texas, to 

return to Nebraska. On May 25, the Madison County sherriff’s 

office reentered Betancourt’s still-active warrant on the teletype system.

On July 1, 2013, nearly a decade later, Betancourt was 

arrested once more in Texas, based on the Nebraska warrant, 

and extradited to Nebraska.
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The case was bound over to district court, and on August 

21, 2013, the State filed an information charging Betancourt 

with kidnapping and use of a deadly weapon to commit a 

felony. Betancourt pled not guilty, and on November 14, he 

filed a motion for absolute discharge on speedy trial grounds. 

After hearing the foregoing evidence surrounding the events 

leading up to Betancourt’s ultimate arrest and extradition to 

Nebraska, the district court overruled the motion. Betancourt’s 

counsel appealed on his behalf, but then subsequently moved 

to dismiss that appeal, which motion the Nebraska Court of 

Appeals granted.

On May 21, 2014, the State filed an amended information. 

It again charged Betancourt with kidnapping (count I) and use 

of a deadly weapon to commit a felony (count II) and added a 

third charge, conspiracy to commit kidnapping (count III).

In response to the amended information, Betancourt filed 

a motion to quash count III as barred by the statute of limitations. His motion to quash stated:

1. That the State filed an Amended Information charging [Betancourt] in Count III with Conspiracy to Commit 

Kidnapping on May 21st, 2014;

2. That the State has not previously filed any information charging [Betancourt] with Conspiracy to Commit 

Kidnapping;

3. That the alleged events are to have occurred on 

November 15th, 2003, and

4. That the time for filing an Information for Conspiracy 

to Commit Kidnapping has lapsed.

The district court conducted a hearing, wherein it again 

heard the evidence recounted above regarding the events preceding Betancourt’s ultimate arrest and extradition to Nebraska. 

The district court overruled Betancourt’s motion to quash.

Betancourt later pled not guilty to all three charges.

At trial, the jury heard evidence that on November 15, 2003, 

officers with the Madison Police Department responded to a 

report of a man who had been found bound and gagged. When 
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officers arrived, they discovered a young Hispanic man on 

the front porch of a residence, with duct tape tightly wrapped 

around his face, ankles, and wrists, along with a “shoestring 

type cord” around his ankles and wrists, the latter of which 

were bound behind his back. The man was later identified as 

Pedro Jesus Rayon-Piza (Pedro). Pedro appeared “terrified” 

and, once freed, explained through a translator that he had been 

kidnapped at gunpoint by two people, one of whom he identified as his uncle, Betancourt.

Pedro testified that on November 15, 2003, Leonel TorresGarcia (Torres) came to the house Pedro shared with his 

brother Jose Rayon-Piza (Jose) and asked for help with his 

car, which Torres said was stranded several miles away. Pedro 

stated that Torres requested Jose’s help, but because Jose was 

unavailable, Pedro offered to help.

Pedro testified that he left with Torres in Pedro’s car and 

drove several miles to Torres’ car. According to Pedro, when 

he exited his car to help “jump-start” Torres’ car, Betancourt 

appeared with a gun, put the gun to Pedro’s head, and threatened to kill him. Pedro testified that Torres also produced a gun 

and pointed it at his head. Pedro stated that the men bound and 

gagged him and that Betancourt repeatedly asked him about 

the whereabouts of Betancourt’s wife, from whom Betancourt 

was separated. Betancourt told Pedro that he believed Jose was 

“going out” with Betancourt’s wife.

Pedro testified that Betancourt and Torres put him in a car 

and drove him to Betancourt’s house. According to Pedro, 

Betancourt continued to threaten him with a gun and told him 

that Betancourt and Torres would put Pedro in a bag with stones 

and throw him in a river. When they arrived, the men put Pedro 

in a shed behind the house. Pedro testified that Betancourt told 

him that he was going to leave Pedro there, bring Jose to the 

same location, and then kill them both. Betancourt and Torres 

then left.

Pedro testified that Betancourt and Torres had not injured 

him. He testified that the doorway to the shed was open and 
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that he was not tethered to anything inside the shed. Pedro, 

still bound, managed to stand and jumped to the nearest house, 

where officers found him.

Torres testified that he and Betancourt had kidnapped Pedro. 

He generally minimized his involvement and denied participating in any plan. Torres admitted that he and Betancourt 

threatened Pedro with guns, took him to the shed, and left him 

there while they sought out Jose. Torres stated that Betancourt 

spoke to Jose on the telephone that evening.

Torres testified that when they could not find Jose, they 

returned to the area of the shed but saw officers everywhere. 

Torres testified that when Betancourt realized that Pedro had 

likely escaped, he appeared furious. Eventually, Betancourt and 

Torres decided to flee and drove all night to Houston, Texas. 

According to Torres, they threw the guns out of the car along 

the highway.

Jose testified similarly to his brother Pedro concerning the 

events preceding the abduction. He stated that sometime after 

Pedro departed with Torres, Jose went out looking for Pedro, 

but could not find him. Jose testified that after he returned from 

his search, Betancourt called him, threatened to “gut [him] like 

a deer,” and made several more threatening calls throughout 

the night. Jose testified that Betancourt was angry because 

he believed Jose was in a relationship with Betancourt’s wife 

and had accused Jose of having such a relationship sometime 

before Betancourt’s wife had left Betancourt.

Betancourt’s wife testified that a few months before she left 

Betancourt, Betancourt had accused Jose of having a relationship with her.

After Betancourt’s wife testified, the State rested. 

Subsequently, Betancourt moved for directed verdict, claiming 

that “[t]he State’s failed to present a prima facie case.” The 

district court overruled the motion.

Next, Betancourt testified that he was not in Nebraska on 

or about the day of the offenses. He stated that at that time, he 

was working 6 days a week or more in Houston.
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The jury heard Betancourt’s testimony and other evidence 

concerning the search for Betancourt, his initial arrest in Texas, 

his deportation, his second arrest, and his ultimate extradition 

to Nebraska. At trial, the parties essentially established the 

same facts on these topics as they did at previous hearings.

Betancourt testified that due to his deportation in 2004, 

he assumed there was no longer a warrant for his arrest in 

Nebraska at that time. Betancourt admitted that shortly after 

being deported, he returned to Texas illegally and lived there 

for almost a decade. He testified that had he been aware of the 

Nebraska warrant, he did not think he would have returned 

from Mexico.

After Betancourt rested his case, he made another motion for 

directed verdict, asserting that no reasonable jury could find 

him guilty based on the evidence presented. The district court 

overruled the motion.

The district court held a jury instruction conference. Only 

the instruction for the conspiracy charge directed the jury to 

consider whether Betancourt had fled from justice during the 

period between the offenses and the second arrest, excluding the time Betancourt was incarcerated in Texas prior to 

being deported. The instructions defined the phrase “fleeing 

from justice” as “leav[ing] one’s usual abode or . . . leav[ing] 

the jurisdiction where an offense has been [committed], with 

intent to avoid detection, prosecution, or punishment for some 

public offense.” They advised the jury to find Betancourt 

not guilty of count III if it concluded that he had not fled 

from justice.

The jury found Betancourt guilty on all three charges.

Following the verdicts, the district court conducted a mitigation hearing to determine whether mitigating factors existed 

under Neb. Rev. Stat. § 28-313(3) (Reissue 2016), the presence 

of which would render the kidnapping conviction a Class II 

felony rather than a Class IA felony. The district court found 

that mitigating factors did not exist and that the kidnapping 

conviction was a Class IA felony.
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The district court sentenced Betancourt to life imprisonment 

for the kidnapping conviction and 10 to 30 years’ imprisonment for the use of a weapon to commit a felony conviction, 

to be served consecutively. Further, the district court treated 

the conspiracy conviction as a Class II felony and sentenced 

Betancourt to 30 to 50 years’ imprisonment, to be served concurrently with the other sentences.

Betancourt now appeals.

III. ASSIGNMENTS OF ERROR

Betancourt assigns, rephrased, (1) that the district court 

erred in failing to quash the amended information because 

it showed on its face that the 3-year statute of limitations 

set forth in Neb. Rev. Stat. § 29-l10 (Reissue 1995) barred 

the State’s prosecution; (2) that the district court erred in 

failing to direct a verdict of acquittal because the State 

failed to produce evidence sufficient to sustain a jury verdict that Betancourt was “fleeing from justice” as provided 

in § 29-110(1); (3) that his trial counsel provided ineffective assistance by moving for dismissal of his appeal of the 

district court’s denial of his motion for absolute discharge, 

thereby waiving his right to challenge counts I and II on 

speedy trial grounds; and (4) that the district court erred in 

failing to take into account any mitigating factors in sentencing Betancourt.

[1] Further, Betancourt argues, but does not assign, that his 

counsel was ineffective in failing to investigate, develop, and 

present exculpatory evidence to support his alibi defense. But 

an appellate court does not consider errors which are argued 

but not assigned. State v. Sellers, 290 Neb. 18, 858 N.W.2d 

577 (2015).

IV. STANDARD OF REVIEW

[2] Regarding questions of law presented by a motion to 

quash or plea in abatement, an appellate court is obligated to 

reach a conclusion independent of the determinations reached 

by the trial court. See, State v. Gozzola, 273 Neb. 309, 729 
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N.W.2d 87 (2007) (motion to quash); State v. Bottolfson, 259 

Neb. 470, 610 N.W.2d 378 (2000) (plea in abatement).

[3] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether 

the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, 

the standard is the same: In reviewing a criminal conviction, 

an appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact, and a conviction will 

be affirmed, in the absence of prejudicial error, if the evidence 

admitted at trial, viewed and construed most favorably to the 

State, is sufficient to support the conviction. State v. Duncan, 

293 Neb. 359, 878 N.W.2d 363 (2016).

[4] Whether a claim of ineffective assistance of trial counsel 

may be determined on direct appeal is a question of law. State 

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

V. ANALYSIS

1. Motion to Quash

Betancourt contends that the district court erred in overruling his motion to quash the amended information. He argues 

that the amended information showed on its face that the 

3-year statute of limitations set forth in § 29-110 barred the 

State’s prosecution. However, as the State correctly points 

out, Betancourt’s motion to quash was limited to only count 

III, the conspiracy charge. Because Betancourt’s motion to 

quash references only count III, we shall limit our discussion accordingly.

[5] In addition, Betancourt specifically assigns that the 

amended information showed on its face that the 3-year statute of limitations barred any prosecution. Appellate review 

is limited to those errors specifically assigned as error in an 

appeal to a higher appellate court. State v. Hays, 253 Neb. 

467, 570 N.W.2d 823 (1997). Therefore, we shall treat his 

motion as one to quash count III based upon the face of the 

amended information.
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[6-8] In Betancourt’s challenge to the amended information, 

he points out that because all relevant events were alleged 

to have taken place in 2003, the amended information was 

required to set forth facts that tolled the 3-year statute of limitations. He quotes a civil case, Broekemeier Ford v. Clatanoff, 

240 Neb. 265, 272, 481 N.W.2d 416, 421 (1992): “‘If a petition alleges a cause of action ostensibly barred by the statute 

of limitations, such petition, in order to state a cause of action, 

must show some excuse tolling the operation and bar of the 

statute.’” Quoting S.I.D. No. 145 v. Nye, 216 Neb. 354, 343 

N.W.2d 753 (1984). However, the controlling criminal case is 

Emery v. State, 138 Neb. 776, 777, 295 N.W. 417, 418 (1940), 

wherein this court held:

It is generally sufficient in an information to describe the 

crime charged in the language of the statute and it is not 

ordinarily necessary to negative the exceptions contained 

in a statute defining a crime if they are not descriptive of the offense. . . . The statute of limitations is not 

descriptive of the offense and it is not necessary to plead 

an exception which makes it inoperative. . . . We think 

the better rule is that statutes of limitation, as applied 

to criminal procedure, need not be pleaded and may be 

raised under the general plea of not guilty.

(Citations omitted.) Therefore, the State is not required to 

plead an exception to the statute of limitations in a criminal 

case. But the State, within the information, has the burden to 

set forth all of the elements of the crime charged. See State 

v. Jost, 219 Neb. 162, 361 N.W.2d 526 (1985). Certainly, 

that burden required the State to allege that the crime had 

been committed within the time fixed by law. The amended 

information in this instance fulfilled these requirements; thus, 

we conclude that the district court did not err in overruling 

Betancourt’s motion to quash.

2. Directed Verdict

[9] Betancourt assigns that the district court erred in not 

directing a verdict of acquittal because the State failed to 
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produce evidence sufficient to sustain a jury verdict that he 

was “fleeing from justice” as provided in § 29-110(1). Section 

29-110 states:

(1) Except as provided in subsections (2) and (3) of 

this section, no person or persons shall be prosecuted for 

any felony . . . unless the indictment for the same shall 

be found by a grand jury within three years next after the 

offense shall have been done or committed or unless a 

complaint for the same shall be filed before the magistrate 

within three years next after the offense shall have been 

done or committed and a warrant for the arrest of the 

defendant shall have been issued . . . . This section shall 

not extend to any person fleeing from justice.

The phrase “fleeing from justice” means leaving one’s usual 

abode or leaving the jurisdiction where an offense has been 

committed, with intent to avoid detection, prosecution, or 

punishment for some public offense. See State v. Thomas, 

236 Neb. 84, 459 N.W.2d 204 (1990), disapproved on other 

grounds, State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999).

The State contends that this assignment of error, like the 

previous one, is limited to count III because the issue of “fleeing from justice” applies only to that count, counts I and II 

having been filed within the statute of limitations. We agree. 

Because the State filed counts I and II of the amended information within the 3-year statute of limitations, any delay in 

their prosecution would be reviewed pursuant to a motion to 

discharge. See Neb. Rev. Stat. § 29-1207 (Reissue 2016). As a 

result, we shall limit our analysis of this assignment of error to 

count III of the amended information.

[10] Betancourt essentially challenges the sufficiency of 

the evidence to support his conspiracy conviction. Prior to 

trial, Betancourt raised the 3-year statute of limitations set 

forth by § 29-110 as an affirmative defense to any prosecution for events which occurred in 2003. See State v. Loyd, 269 

Neb. 762, 696 N.W. 2d 860 (2005) (statute of limitations is 

affirmative defense). Whether it applied ultimately became a 
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factual question for the jury to resolve, and the district court 

properly instructed the jury to consider count III in light of 

the definition of “flee[ing] from justice.” The jury made the 

factual determination that the evidence was sufficient to show 

that Betancourt had fled from justice. And an appellate court 

does not resolve conflicts in the evidence, pass on the credibility of the witnesses, or reweigh the evidence; such matters are 

for the finder of fact, and a conviction will be affirmed, in the 

absence of prejudicial error, if the properly admitted evidence, 

viewed and construed most favorably to the State, is sufficient 

to support the conviction. State v. Larsen, 255 Neb. 532, 586 

N.W.2d 641 (1998). However, for the sake of completeness, we 

consider Betancourt’s arguments.

[11] Betancourt primarily contends that given the fact he 

waived extradition back to Nebraska, there is insufficient 

evidence to support a finding that he was “fleeing from justice.” Brief for appellant at 23. In a criminal case, the court 

can direct a verdict only when (1) there is a complete failure 

of evidence to establish an essential element of the crime 

charged or (2) evidence is so doubtful in character and lacking 

in probative value that a finding of guilt based on such evidence cannot be sustained. State v. Brown, 235 Neb. 374, 455 

N.W.2d 547 (1990). However, under this standard and upon 

this record, we cannot conclude that the district court erred 

in overruling Betancourt’s motions for directed verdict. There 

was evidence that upon seeing law enforcement officers near 

the shed where they had left Pedro, Betancourt and Torres fled 

to Texas. Subsequently, Betancourt was arrested and waived 

extradition proceedings, thus showing that he was aware that 

charges were pending against him in Nebraska. Yet, there is 

no evidence that Betancourt made any effort to surrender to 

Nebraska authorities while in custody prior to his deportation 

or after.

Betancourt further argues that although he did leave the 

State of Nebraska for Texas, once he was arrested in Texas 

and waived extradition proceedings, this stopped any tolling 
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associated with his initial flight. Betancourt relies on United 

States v. Gonsalves, 675 F.2d 1050 (9th Cir. 1982), where the 

court held that the statute of limitations period is not tolled 

during the time an accused makes a good faith effort to surrender himself to authorities. However, any efforts by Betancourt 

to voluntarily surrender to Nebraska authorities ended after 

he was taken into custody by the immigration services and 

deported to Mexico.

Betancourt also cites United States v. Catino, 735 F.2d 718 

(2d Cir. 1982), where the government agreed that a fugitive 

who executes a formal and voluntary consent to extradition 

regains the benefit of the statute of limitations. Here, we 

discern a significant difference between Betancourt’s signing a waiver of extradition and actually submitting himself to 

Nebraska authorities, which he failed to do.

The court in Catino further found that the intent to flee from 

prosecution or arrest may be inferred from a person’s failure 

to surrender to authorities once he learns that charges against 

him are pending and that “[a] person can be ‘fleeing from justice’ in one jurisdiction even though in prison in another.” 735 

F.2d at 722. Both points apply here, in that Betancourt knew 

about pending charges in Nebraska and we see no distinction 

between his apprehension by the immigration services and 

imprisonment in another state.

Further, Betancourt argues:

[T]he lack of any attempt by Nebraska law enforcement 

authorities to follow up on Betancourt’s whereabouts 

upon being transferred to [DHS] custody on or after May 

17, 2004, further lends support to Betancourt’s argument 

that the State failed to meet its burden to show the statute 

of limitations was tolled in the case at bar.

Brief for appellant at 24. In support, he cites U.S. v. SoteloSalgado, 201 F. Supp. 2d 957, 966 (S.D. Iowa 2002), where the 

court held that it was “fundamentally unfair” to toll a statute 

of limitations where there was evidence of inaction by the government to locate a wanted person. However, Sotelo-Salgado
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is distinguishable from this instance because in that case, the 

federal authorities were notified but took no action to apprehend the fugitive.

In this case, law enforcement immediately attempted to 

extradite Betancourt. This certainly constitutes immediate 

action. Moreover, as the State points out, Nebraska had little authority after the immigration services took Betancourt 

into custody and deported him to Mexico. Nor did Nebraska 

authorities have the means to detect when Betancourt illegally 

reentered the United States. In sum, we conclude that because 

Betancourt did not actually surrender himself to Nebraska 

authorities after fleeing, in person or through another law 

enforcement agency, the evidence the State produced was 

sufficient to sustain a verdict that Betancourt was “fleeing 

from justice.”

Therefore, the district court did not err in overruling 

Betancourt’s motions for directed verdict.

3. Ineffective Assistance

of Counsel

[12,13] We next address Betancourt’s allegation that he 

received ineffective assistance of counsel. We have often 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. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 

(2014). The determining factor is whether the record is sufficient to adequately review the question. Id. An appellant must 

make specific allegations of the conduct that he or she claims 

constitutes deficient performance by trial counsel when raising 

an ineffective assistance claim on direct appeal. Id.

In this instance, Betancourt assigns and argues that his 

trial counsel was deficient in dismissing his appeal of the 

district court’s order that overruled his motion for absolute 

discharge on counts I and II. Although Betancourt does not 

set forth specifically how the district court erred in overruling his motion for absolute discharge on counts I and II, 
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both his allegations and the record are sufficient to warrant 

further review.

[14,15] The test for ineffective assistance of counsel is 

well settled. To prevail on a claim of ineffective assistance 

of counsel under Strickland v. Washington, 466 U.S. 668, 104 

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must 

show that his or her counsel’s performance was deficient and 

that this deficient performance actually prejudiced the defendant’s defense. State v. Filholm, supra. An appellate court may 

address the two prongs of this test, deficient performance and 

prejudice, in either order. Id. 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. Id.

[16,17] When a defendant alleges he or she was prejudiced 

by trial counsel’s failure to properly assert the defendant’s 

speedy trial rights on appeal, the court must consider the merits of the defendant’s speedy trial rights under Strickland. See 

State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006). See, 

also, State v. Meers, 267 Neb. 27, 671 N.W.2d 234 (2003). 

Only if the motion should have resulted in the defendant’s 

absolute discharge, thus barring a subsequent trial and conviction, could the failure to make a motion for discharge be 

deemed prejudicial. State v. Sims, 272 Neb. 811, 725 N.W.2d 

175 (2006).

(a) Statutory Speedy Trial

[18,19] We first consider whether Betancourt’s motion for 

discharge would have been successful under statutory speedy 

trial grounds. Nebraska’s speedy trial statutes require that 

those who are charged with crimes be brought to trial within 

6 months, as calculated by the applicable statute. State v. 

Lee, 282 Neb. 652, 807 N.W.2d 96 (2011). To calculate the 

deadline for trial under the speedy trial statutes, a court must 

exclude the day the State filed the information, count forward 

6 months, back up 1 day, and then add any time excluded 
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under § 29-1207(4). State v. Lee, supra. If the State does 

not bring the defendant to trial within the permissible time, 

the court must order an absolute discharge from the offense 

charged. Id.

[20] In this case, the original information was filed on 

August 21, 2013. For a felony, the speedy trial clock begins 

to run on the date that the indictment is returned or the information is filed, not on the date on which the complaint is 

filed. Id. Betancourt filed his motion for absolute discharge 

on November 14. The district court determined that only 55 

days should count against the State pursuant to the speedy 

trial statute. Based upon the record, we concur. Therefore, trial 

counsel was not ineffective in not pursuing a meritless argument. See id.

(b) Constitutional Right 

to Speedy Trial

[21] We next consider Betancourt’s contention that his 

motion for discharge would have succeeded on appeal due 

to a violation of his right to a speedy trial under U.S. Const. 

amend. VI and Neb. Const. art. I, § 11. Determining whether 

a defendant’s constitutional right to a speedy trial has been 

violated requires a balancing test in which the courts must 

approach each case on an ad hoc basis. This balancing test 

involves four factors: (1) length of delay, (2) the reason for 

the delay, (3) the defendant’s assertion of the right, and (4) 

prejudice to the defendant. State v. Sims, supra. None of these 

four factors standing alone is a necessary or sufficient condition to the finding of a deprivation of the right to speedy 

trial. Rather, the factors are related and must be considered 

together with other circumstances as may be relevant. Id. See, 

also, Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 

2d 101 (1972).

[22] In analyzing the prejudice factor of this four-factor 

test, the U.S. Supreme Court in Barker v. Wingo, supra, 

enumerated three aspects: (1) preventing oppressive pretrial 
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incarceration, (2) minimizing anxiety and concern of the 

defendant, and (3) limiting the possibility that the defense will 

be impaired by dimming memories and loss of exculpatory 

evidence. Of these three aspects, the third is considered most 

important “because the inability of a defendant adequately to 

prepare his case skews the fairness of the entire system.” Id., 

407 U.S. at 532.

[23] First, we must examine the length of the delay, which 

acts as the “triggering mechanism.” Id., 407 U.S. at 530. Until 

there is some delay which is presumptively prejudicial, there 

is no necessity for inquiry into the other factors that go into 

the balance. Id. In this matter, the district court found that the 

10-year delay from initial arrest until trial was “presumptively 

prejudicial” and that this factor favored Betancourt, citing 

Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120 L. 

Ed. 2d 520 (1992), and U.S. v. Erenas-Luna, 560 F.3d 772 (8th 

Cir. 2009). We agree that the 10-year delay from initial arrest 

until trial was “presumptively prejudicial.” Therefore, we move 

to the second factor.

Under the second Barker factor, we consider the reasons 

for the delay and evaluate “whether the government or the 

criminal defendant is more to blame.” Doggett v. United States, 

505 U.S. at 651. Accord U.S. v. Erenas-Luna, supra. Here, 

the record contains no evidence that the State intentionally or 

negligently caused the delay. Further, Betancourt’s citizenship 

status led to his deportation to Mexico, which caused the delay. 

Moreover, as pointed out by the State, with Betancourt knowing of the pending charges, he could have contacted authorities to resolve this case. This second Barker factor weighs 

against Betancourt.

The third Barker factor considers whether in due course 

the defendant asserted his right to a speedy trial. Doggett 

v. United States, supra; U.S. v. Erenas-Luna, supra. Again, 

Betancourt did not assert this right until he returned to 

Nebraska after a 10-year absence. This third Barker factor 

weighs against Betancourt.
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[24] The final Barker factor considers whether the defendant 

suffered prejudice as a result of the delay. Doggett v. United 

States, supra; U.S. v. Erenas-Luna, supra. A showing of actual 

prejudice is required if the government exercised reasonable 

diligence in pursuing the defendant. Doggett v. United States,

supra; U.S. v. Erenas-Luna, supra. Here, the State promptly 

attempted to extradite Betancourt but was prohibited by the 

federal government’s deporting him. In addition, it is not reasonable to expect the State to assume that Betancourt would 

again illegally enter the United States or, if he did reenter, 

that he would not enter under the scrutiny of federal authorities. Because the State acted diligently to the extent it could, 

Betancourt must show actual prejudice. He did not offer any 

instance of prejudice nor argue any presumed prejudice. This 

factor weighs against Betancourt.

After weighing the totality of the circumstances and the 

four factors from Barker v. Wingo, supra, we conclude that 

Betancourt’s right to a speedy trial under U.S. Const. amend. 

VI and Neb. Const. art. I, § 11, was not violated. Because 

Betancourt’s motion for absolute discharge lacked merit, 

trial counsel could not be ineffective by moving for dismissal of Betancourt’s appeal of the district court’s denial of 

that motion.

4. Mitigating Factors

at Sentencing

[25,26] Betancourt challenges his sentence on count I, the 

kidnapping conviction. Section 28-313(3) provides, “If the 

person kidnapped was voluntarily released or liberated alive 

by the abductor and in a safe place without having suffered 

serious bodily injury, prior to trial, kidnapping is a Class II 

felony.” The provisions of § 28-313(3) are mitigating circumstances which may reduce the penalty for kidnapping and are 

therefore a matter for the court at sentencing, not the jury. 

See State v. Becerra, 263 Neb. 753, 642 N.W.2d 143 (2002). 

Rescue is not a voluntary release of a kidnapping victim. State 

v. Delgado, 269 Neb. 141, 690 N.W.2d 787 (2005).
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Betancourt contends, “Because the evidence at trial showed 

that [Pedro] was voluntarily released, alive, . . . in a safe place 

without having suffered any bodily injury whatsoever . . . , the 

mitigating factors set forth in . . . § 28-313(3) were satisfied.” 

Brief for appellant at 30. Consequently, he argues that the 

district court should have treated the kidnapping conviction 

as a Class II felony, resulting in a sentence to a term of years 

rather than life imprisonment.

The evidence at trial reflected that after Betancourt and 

Torres had kidnapped Pedro, bound him with tape and “shoestring type cord,” gagged him, and threatened him with a gun, 

they placed him in a shed. Pedro testified that Betancourt told 

him that he was going to leave him there, bring Jose to the 

same location, and then kill them both. Pedro advised that 

Betancourt and Torres had not injured him or tethered him to 

anything inside the shed and that the doorway to the shed was 

open. Pedro, still bound, managed to stand and jump to the 

nearest house, where officers found him. Based on these facts, 

the district court found count I to be a Class IA felony, because 

Betancourt did not voluntarily release Pedro, who instead 

escaped through his own efforts.

Pedro’s ability to effectuate an escape despite being 

bound and gagged does not equate with a voluntary release. 

Accordingly, we conclude that the mitigating factors in 

§ 28-313(3) were not present, because the rescue was not a 

voluntary release, and that the district court did not err in finding count I to be a Class IA felony.

5. Plain Error

[27] Finally, although the State did not file a cross-appeal 

contending that the sentence imposed was excessively lenient, 

it urges us to recognize plain error. The State argues that the 

district court committed plain error in the classification of, 

and the sentence for, count III, the conspiracy conviction. 

Plain error exists where there is error, plainly evident from 

the record but not complained of at trial, which prejudicially 

affects a substantial right of a litigant and is of such a nature 
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that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. State v. Aguallo, 294 Neb. 177, 

881 N.W.2d 918 (2016).

The State points out that Neb. Rev. Stat. § 28-202(4) 

(Reissue 2008) provided, “Conspiracy is a crime of the same 

class as the most serious offense which is an object of the 

conspiracy, except that conspiracy to commit a Class I felony 

is a Class II felony.” Here, the most serious offense which 

was an object of the conspiracy was kidnapping, a Class IA 

felony. See § 28-313(2). Therefore, count III, the conspiracy 

conviction, was a Class IA felony and had a mandatory sentence of life imprisonment. See Neb. Rev. Stat. § 28-105 

(Reissue 2008). The district court erroneously treated count III 

as a Class II felony and sentenced Betancourt to 30 to 50 

years’ imprisonment.

[28] We digress to note that Betancourt acknowledges this 

mistake, but argues that the district court incorrectly advised 

him at the arraignment hearing using the classification and 

penalty above, and that he relied on the incorrect advisement 

to his detriment, resulting in the violation of his due process 

rights. He cites State v. Schnell, 17 Neb. App. 211, 220, 757 

N.W.2d 732, 739 (2008), for the proposition that “[w]here 

a defendant was unaware of the penal consequences of his 

or her guilty plea because he or she had been misinformed 

by the court, his or her plea is not voluntary.” Citing State 

v. Golden, 226 Neb. 863, 415 N.W.2d 469 (1987). However, 

both Schnell and Golden are distinguishable from the case at 

hand because they involved pleas. Here, Betancourt pled not 

guilty and went to trial. Where a defendant pleads not guilty at 

arraignment and proceeds to trial, “the considerations involved 

in determining whether one freely, intelligently, voluntarily, 

and understandingly pleads guilty have no application . . . , 

for in such a circumstance, the defendant does not surrender 

the constitutional rights inherent in a trial.” State v. McBride, 

252 Neb. 866, 876, 567 N.W.2d 136, 144 (1997). Because 
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Betancourt proceeded to trial, there has been no violation of 

his due process rights.

Turning again to plain error, where, after a conviction following a jury trial, the trial judge imposed an incorrect sentence, we have found plain error and ordered the trial court 

to correct the sentence. See State v. Thorpe, 280 Neb. 11, 

26, 783 N.W.2d 749, 762 (2010) (remanding with directions 

to resentence to life imprisonment because “life imprisonment without parole” was not a valid sentence for first degree 

murder). In this instance, the incorrect sentence constituted 

plain error, and we remand for imposition of a sentence of 

life imprisonment.

VI. CONCLUSION

Having found no merit to Betancourt’s assigned errors, we 

affirm his convictions for counts I, II, and III and his sentences 

for counts I and II. However, because we find plain error in the 

sentencing for count III, we vacate that sentence and remand 

the matter to the district court with directions to resentence 

Betancourt to “life imprisonment” for count III.

 Affirmed in part, and in part vacated

and remanded for resentencing.