IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

STATE V. SANTANA

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLEE,

V.

HAWK E. SANTANA, APPELLANT.

Filed December 2, 2014. No. A-14-055.

Appeal from the District Court for Merrick County: MICHAEL J. OWENS, Judge. 

Affirmed.

Bruce E. Stephens, of Stephens Law Offices, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

IRWIN, INBODY, and PIRTLE, Judges.

IRWIN, Judge.

I. INTRODUCTION

Hawk E. Santana appeals an order of the district court for Merrick County, Nebraska, 

denying his motion for postconviction relief after conducting an evidentiary hearing. On appeal, 

Santana asserts that the court erred in denying him postconviction relief. We find no merit to 

Santana’s assertions on appeal, and we affirm.

II. BACKGROUND

In 2011, Santana was charged by information with one count of sexual assault of a child 

and one count of felony child abuse. After a bench trial, the district court found Santana guilty of 

sexual assault of a child. The court sentenced Santana to 30 to 32 years’ imprisonment.

Santana appealed his conviction, asserting that the evidence adduced at trial was 

insufficient to sustain the conviction. Santana’s counsel on direct appeal was the same as his 

counsel at trial. This court summarily affirmed Santana’s conviction.

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In July 2013, Santana filed a motion for postconviction relief. In his motion, Santana 

asserted that his trial and appellate counsel had been ineffective in various particulars, including 

failing to sufficiently investigate evidence of the contents of his computer, failing to sufficiently 

investigate witnesses, refusing to allow Santana to testify in his own behalf, calling Santana’s 

wife as a witness, and not raising all issues that could have been raised on appeal.

The district court conducted an evidentiary hearing on Santana’s motion for 

postconviction relief. In support of his motion, Santana presented testimony from his mother and 

testified in his own behalf. In opposition to the motion, the State presented testimony from 

Santana’s trial and appellate counsel.

With respect to his assertion that counsel had been ineffective for failing to investigate 

the contents of Santana’s computer, the record indicates that during the pretrial investigation in 

this case, a computer was seized from Santana’s home. The computer apparently contained 

pornography and photographs of “prepubescent” males. Santana testified that “none of them are, 

like, under the age of 18. They’re all, you know, movie stars. So I don’t - there were no kids.” 

Prior to trial, Santana’s counsel successfully moved to suppress all evidence concerning the 

contents of the computer, so that no evidence related to the computer was admissible by the State 

in seeking to prove that Santana was guilty of the charges brought against him.

With respect to his assertion that counsel had been ineffective for failing to investigate 

witnesses, Santana testified that he had witnesses that he had wanted counsel to investigate, 

including nurses who had worked with him throughout a gastric bypass surgery and recovery that 

occurred during the relevant time period for which he was accused of committing sexual assault 

of a child, as well as a counselor that the victim had spoken with. Santana acknowledged that he 

had not asked counsel to speak with the nurses until the day before trial, and he also 

acknowledged that counsel had deposed a number of potential witnesses during preparation for 

trial. Santana also acknowledged that counsel had spoken to some of the witnesses related to his 

bypass surgery.

Santana’s trial counsel testified that he had conducted discovery and that he had reviewed 

Santana’s medical history and had considered the potential impact evidence of the gastric bypass 

surgery would have had on the trial. He testified that he met with Santana’s bypass surgeon. He 

testified that after considering the medical evidence and speaking with the surgeon, he concluded 

that the surgeon’s testimony would not have been beneficial to the case. He testified that he 

contacted the potential witnesses Santana shared with him and considered what they would be 

able to testify about and how it would impact the case. He testified that he concluded many of 

them would not have been allowed to testify or would have presented duplicative testimony on 

issues that were not in dispute. He testified that any decision not to call specific potential 

witnesses was made after assessing the case and developing trial strategy.

With respect to his assertion that counsel had been ineffective for refusing to allow him 

to testify, Santana adduced testimony from his mother indicating that in meetings on the days of 

trial, Santana indicated to counsel that he wanted to testify, but that counsel had indicated that it 

“would make him look worse.” Santana testified that when the court asked him at trial about 

whether he wanted to testify, he indicated that he did not want to “[b]ecause [he] looked at 

[counsel] and [counsel] told [him] no.” He acknowledged that he had waived his right to testify, 

on the record, at trial.

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Santana’s counsel testified that he had intended to have Santana testify at trial, that he 

had “written out five or six pages of [his] direct exam . . . for [Santana] to review prior to trial, 

and [they] had discussed that and gone over that.” During the course of the trial, counsel became 

aware that if Santana testified, the State intended to attempt to use the contents of his 

computer--previously suppressed--to impeach him. Santana’s counsel testified that he discussed 

with Santana that if the State attempted to impeach his testimony by discussing the contents of 

the computer, “it would make the judge aware of the things that were on there which probably 

wouldn’t - the judge wouldn’t look too favorably upon [Santana], even though - if they were kept 

out, the judge as a trier of fact would still be aware of that, and [counsel] didn’t want that to 

happen.” He testified that “at that point in time, there was no evidence regarding any 

pornography or any homosexuality - homosexual tendencies or anything like that, and [he] 

wanted to keep that out of the record.” He testified that he shared those concerns with Santana 

and advised him, as a matter of trial strategy, not to take the stand and that Santana understood 

and agreed with the strategy.

With respect to his assertion that counsel was ineffective for calling Santana’s wife to 

testify, Santana testified that he told his trial counsel that he did not think his wife would make a 

good witness “because she gets flustered and gets angry and upset.” He testified that he asked 

counsel not to call her, but that counsel “called her anyway.” He indicated that his wife got 

“pretty confused” during her testimony and that he did not “think it helped.”

Santana’s trial counsel testified that he had decided to call Santana’s wife as a witness 

because, “in [his] opinion, she was in the best position to relate to the [c]ourt what went on in the 

household and what the schedules were, as well as [the victim].” He considered her opportunity 

to have witnessed the crime Santana was alleged to have committed and her ability to testify 

about Santana’s ability to perform sexually. He testified that he had spoken with her on a number 

of occasions prior to trial and that she “seemed to [him] to be able to articulate things to [him] 

that [he] thought would be helpful to the case.”

After the evidentiary hearing, the district court entered an order denying Santana’s 

motion for postconviction relief. The court specifically held that the record demonstrated 

Santana’s failure to testify in his own behalf at trial was the result of his election to exercise his 

right not to testify. The court held that Santana had freely, voluntarily, knowingly, and 

intelligently waived that right and that there was insufficient evidence adduced to suggest his 

will was somehow overborne by his trial counsel.

With respect to Santana’s other assertions concerning his trial counsel’s ineffectiveness, 

the court concluded that counsel’s trial strategy was developed in conjunction with conversations 

between counsel and Santana and that Santana had failed to prove that counsel was ineffective 

and that any deficient performance had prejudiced him.

This appeal followed.

III. ASSIGNMENTS OF ERROR

On appeal, Santana has assigned two errors. First, he asserts that the district court erred in 

denying him postconviction relief. Second, he asserts that the trial court erred in allowing trial to 

proceed with the Nebraska Commission on Public Advocacy (Commission) “when it had 

appointed them as counsel.”

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IV. ANALYSIS

Santana asserts on appeal that the district court erred in denying him postconviction 

relief. He reasserts all of his allegations concerning alleged ineffective assistance discussed 

above in the factual background section. He also argues that the Commission was appointed to 

represent him at his trial and did not withdraw from representation, but that the trial court 

allowed the trial to proceed without the Commission’s participation. We find the assertions on 

appeal to be meritless.

1. INEFFECTIVE ASSISTANCE OF COUNSEL

A defendant requesting postconviction relief must establish the basis for such relief, and 

the findings of the district court will not be disturbed unless they are clearly erroneous. State v. 

Hernandez, 22 Neb. App. 62, 847 N.W.2d 111 (2014). A claim that defense counsel provided 

ineffective assistance presents a mixed question of law and fact. Id. On appeal from a proceeding 

for postconviction relief, the trial court’s findings of fact will be upheld unless such findings are 

clearly erroneous. Id. Determinations regarding whether counsel was deficient and whether the 

defendant was prejudiced are questions of law that we review independently of the lower court’s 

decision. Id.

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 counsel’s 

performance was deficient and that this deficient performance actually prejudiced his or her 

defense. State v. Hernandez, supra. 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. Id. To show prejudice, the defendant must demonstrate reasonable probability 

that but for counsel’s deficient performance, the result of the proceeding would have been 

different. Id. When reviewing claims of alleged ineffective assistance of counsel, trial counsel is 

afforded due deference to formulate trial strategy and tactics. See State v. Nesbitt, 279 Neb. 355, 

777 N.W.2d 821 (2010).

In an evidentiary hearing for postconviction relief, the postconviction trial judge, as the 

trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and 

the weight to be given to a witness’ testimony. Id.

In this case, Santana has asserted that his counsel was ineffective for not investigating 

evidence relating to the contents of his computer, arguing that counsel could have discovered 

evidence to demonstrate that the pornography on the computer had been downloaded years prior. 

The record, however, indicates that Santana’s counsel had successfully moved to suppress all 

evidence of the computer and its contents from trial and that the State was not able to adduce 

evidence about the computer or its contents. The computer and its contents are most relevant in 

this postconviction action as they impacted counsel’s advice to Santana not to testify.

Santana asserts that his counsel was ineffective for refusing to allow him to testify. He 

acknowledges that he waived his right to testify, on the record, but argues that his will was 

overborne by his counsel. Santana’s counsel testified that he advised Santana not to testify 

because doing so would have opened the door to the State’s adducing evidence of the contents of 

Santana’s computer to impeach his testimony. Santana indicated that the computer contained 

pornography, including nude photographs of “prepubescent” males. Santana argues that he could 

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have explained away the evidence--demonstrated that it had been downloaded years prior--and 

that he did not believe there was anything damaging about the evidence. Counsel disagreed, 

discussed the matter with Santana, and advised him to not testify. The trial court did not err in 

finding that the record supports a conclusion Santana elected to not testify and that the record did 

not demonstrate that his counsel was ineffective for so advising him or that his counsel overbore 

his will.

With respect to Santana’s assertions that counsel was ineffective for failing to investigate 

and call witnesses and for calling his wife to testify, we similarly find that Santana has not 

demonstrated that he is entitled to relief. Santana’s counsel testified that these decisions were 

made as a part of his trial strategy and testified as to why he made the decisions he did. Santana 

has not demonstrated that this strategy was deficient performance and has adduced no evidence 

to suggest that the outcome of the trial would have been different had a different strategy been 

utilized.

Santana’s assignment of error concerning the district court’s refusal to grant 

postconviction relief on his assertions of ineffective assistance of counsel is meritless.

2. NEBRASKA COMMISSION ON PUBLIC ADVOCACY

Santana also argues on appeal that there was error at his trial related to the lack of 

participation by the Commission. He argues that the Commission was appointed by the trial 

court, that the appointment was never withdrawn, and that it was error for the trial court to allow 

the trial to proceed without the Commission’s appearing and participating. This assertion is not 

supported by the record presented to us and is meritless.

We first note that Santana’s motion for postconviction relief does not make any mention 

of being entitled to such relief because of any issue related to the Commission. Ordinarily, an 

appellate court will not consider a question not presented to the district court for disposition 

through a motion for postconviction relief. State v. Haas, 279 Neb. 812, 782 N.W.2d 584 (2010). 

As such, it appears that Santana has not properly raised and presented this issue.

Nonetheless, even assuming the issue was properly before us for consideration and 

disposition, Santana’s assertions about the record as it relates to the Commission are simply 

erroneous.

The record indicates that Santana’s trial counsel filed a motion seeking to withdraw from 

representing Santana and to have the Commission appointed to represent Santana. Santana’s trial 

counsel testified that he was aware of the reputation of attorneys for the Commission, that 

criminal defense work is “all they do,” and that he wanted Santana to have the best defense 

possible. As a result, he spoke with attorneys for the Commission about taking the case and that 

they expressed interest in doing so. Counsel testified, however, that attorneys for the 

Commission subsequently indicated that they were not interested in the case, “[s]o then [he] 

informed [Santana] of that and . . . remained on the case.”

Santana asserts on appeal that the court “granted said request” to appoint the 

Commission, “yet the [Commission] never appeared nor did they withdraw.” Brief for appellant 

at 17. The order in the transcript which Santana cites to this court for the notion that the district 

court appointed the Commission, however, does no such thing. Instead, the order cited to this 

court and provided in the transcript indicates that a hearing had been held on the motion to 

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appoint the Commission and that “[s]ubsequent to the hearing . . . counsel for [Santana] has filed 

a Motion to Withdraw the aforementioned Motion to Appoint” the Commission. The court then 

specifically “granted [Santana] leave to withdraw his previously filed Motion to Appoint” the 

Commission.

Santana acknowledges on appeal that he moved to withdraw his request to appoint the 

Commission, but argues that “an order was entered appointing them.” Brief for appellant at 17. 

He also argues that he is “unaware of any order ever dismissing” the Commission. Id.

The record presented to us does not include any order appointing the Commission. 

Rather, the record presented, and the portion of the record specifically cited by Santana to 

support his assertions, specifically demonstrates that Santana himself asked the court to 

withdraw the request to appoint the Commission and that the court granted the relief requested 

by Santana. The judge’s minutes similarly suggest that the order granting the motion to withdraw 

the motion to appoint the Commission was the only order entered on this matter.

This assertion was not properly presented in the motion for postconviction relief, was not 

ruled upon by the trial court, could have been raised on direct appeal, and is not supported by the 

record presented. Santana’s assertions about this alleged error are meritless.

V. CONCLUSION

We find no merit to this appeal. We affirm the district court’s denial of postconviction 

relief.

AFFIRMED.

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