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310 Nebraska Reports

STATE v. BETANCOURT-GARCIA

Cite as 310 Neb. 440

State of Nebraska, appellee, v. Rosario 

Betancourt-Garcia, appellant.

___ N.W.2d ___

Filed December 3, 2021. No. S-20-538.

1. Postconviction: Constitutional Law: Appeal and Error. In appeals 

from postconviction proceedings, an appellate court reviews de novo a 

determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record 

and files affirmatively show that the defendant is entitled to no relief.

2. Effectiveness of Counsel: Appeal and Error. Claims of ineffective 

assistance of counsel involve mixed questions of law and fact.

3. ____: ____. When reviewing claims of ineffective assistance of counsel, 

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

clear error and the legal determinations de novo.

4. Postconviction: Final Orders: Appeal and Error. Within a postconviction proceeding, an order granting an evidentiary hearing on some 

issues and denying a hearing on others is a final, appealable order as to 

the claims denied without a hearing. Such an order is appealable because 

as to the denied claim, it is a “final judgment” under Neb. Rev. Stat. 

§ 29-3002 (Reissue 2016).

5. Postconviction: Constitutional Law: Proof. A defendant seeking relief 

under the Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et 

seq. (Reissue 2016), must show that his or her conviction was obtained 

in violation of his or her constitutional rights.

6. Postconviction: Appeal and Error. Postconviction relief is a narrow 

category of relief and is not intended to secure a routine review for any 

defendant dissatisfied with his or her sentence.

7. ____: ____. A motion for postconviction relief cannot be used to secure 

review of issues that were known to the defendant and which were or 

could have been litigated on direct appeal.

8. Postconviction: Constitutional Law: Judgments: Proof. An evidentiary hearing on a motion for postconviction relief is required on an 

appropriate motion containing factual allegations which, if proved, 

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STATE v. BETANCOURT-GARCIA

Cite as 310 Neb. 440

constitute an infringement of the movant’s rights under the Nebraska or 

federal Constitution, causing the judgment against the defendant to be 

void or voidable.

9. Postconviction: Proof. An evidentiary hearing on a motion for postconviction relief is not required if (1) the motion does not contain factual 

allegations of a violation or infringement of the prisoner’s constitutional 

rights, (2) the motion alleges only conclusions of fact or law, or (3) the 

record affirmatively shows that the prisoner is entitled to no relief.

10. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.

When a district court denies postconviction relief without conducting 

an evidentiary hearing, an appellate court must determine whether the 

petitioner has alleged facts that would support a claim of ineffective 

assistance of counsel and, if so, whether the files and records affirmatively show that he or she is entitled to no relief.

11. Postconviction: Effectiveness of Counsel: Proof. If the petitioner has 

not alleged facts which would support a claim of ineffective assistance 

of counsel or if the files and records affirmatively show he or she is 

entitled to no relief, then no evidentiary hearing is necessary.

12. Effectiveness of Counsel: Proof. To prevail under 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), a defendant must first show that 

his or her attorney’s performance was deficient, meaning it objectively 

did not equal that of a lawyer with ordinary training and skill in criminal law.

13. ____: ____. To show that defense counsel’s performance was deficient, 

a defendant must show that counsel’s performance did not equal that of 

a lawyer with ordinary training and skill in criminal law.

14. Effectiveness of Counsel: Proof: Words and Phrases. 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. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

15. Criminal Law: Weapons. The operability of a handgun is not relevant 

to whether it is a firearm used under Neb. Rev. Stat. § 28-1205(1)(a) 

(Reissue 2008).

16. Criminal Law: Statutes: Legislature. Under Nebraska law, all crimes 

are statutory and no act is criminal unless the Legislature has in express 

terms declared it to be so.

17. Constitutional Law: Effectiveness of Counsel: Conflict of Interest: 

Words and Phrases. An actual conflict of interest for Sixth Amendment 

purposes is defined broadly. The phrase “actual conflict of interest” 

encompasses any situation in which a defense counsel faces divided loyalties such that regard for one duty tends to lead to disregard of another.
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STATE v. BETANCOURT-GARCIA

Cite as 310 Neb. 440

18. Effectiveness of Counsel: Conflict of Interest. An actual conflict of 

interest for Sixth Amendment purposes is one that adversely affects 

counsel’s performance.

19. Criminal Law: Conspiracy: Intent: Proof. With respect to proving the 

intent element of a conspiracy, direct evidence of a positive agreement 

to jointly participate in the violation of a criminal statute is not required 

to establish a crime.

20. ____: ____: ____: ____. A criminal conspiracy must necessarily be 

entered into with the intent to defraud the State or to violate a criminal 

law, and intent being a matter of the mind, it is rarely possible to prove 

that element of the crime except by circumstances.

21. Criminal Law: Conspiracy. Conspiracy may be charged in both the 

place of the agreement, as well as any locale where any overt act by any 

one of the conspirators took place.

Appeal from the District Court for Madison County: Mark 

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

remanded with direction.

Brad J. Montag, of Egley, Fullner, Montag, Morland & 

Easland, P.C., for appellant.

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

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Papik, 

JJ., and Harder and Masteller, District Judges.

Miller-Lerman, J.

I. NATURE OF CASE

Rosario Betancourt-Garcia (Betancourt), who is serving 

sentences of imprisonment for his convictions for kidnapping, use of a firearm to commit a felony, and conspiracy to 

commit kidnapping, filed a petition for postconviction relief. 

The district court for Madison County granted an evidentiary 

hearing on three of Betancourt’s claims and denied the balance of Betancourt’s petition without an evidentiary hearing. 

Betancourt appeals. He claims on appeal that he was entitled 

to an evidentiary hearing generally concerning several layered 

claims of ineffective assistance of appellate counsel, related to, 
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STATE v. BETANCOURT-GARCIA

Cite as 310 Neb. 440

inter alia, the handling of lost or destroyed evidence, potential 

plea offers, translation discrepancies, witness investigations, 

and a sentencing error. Because Betancourt alleged ineffective 

assistance of counsel for failing to object on remand to the 

unauthorized sentence of “life imprisonment without parole” 

on the conspiracy conviction, we remand this cause to the district court for a hearing. With respect to the remaining claims, 

because Betancourt failed to allege facts that show he was 

entitled to relief, or the record or law refute his claims, we 

affirm the judgment of the district court.

II. STATEMENT OF FACTS

The facts surrounding Betancourt’s convictions are set forth 

in our opinion in State v. Betancourt-Garcia, 295 Neb. 170, 

887 N.W.2d 296 (2016) (Betancourt I), abrogated on other 

grounds, State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 

(2020). See, also, State v. Betancourt-Garcia, 299 Neb. 775, 

910 N.W.2d 160 (2018) (Betancourt II). The evidence at trial 

reflected that Betancourt and Leonel Torres-Garcia (Torres) kidnapped Betancourt’s nephew, Pedro Jesus Rayon-Piza (Pedro), 

bound him, gagged him, threatened him with a gun, and placed 

him in a shed. The State’s theory was that Betancourt believed 

that Pedro or his brother Jose Rayon-Piza (Jose) knew the 

whereabouts of Betancourt’s wife, Gabriela Ortiz, from whom 

Betancourt was separated. Betancourt believed that Jose was 

“going out” with Ortiz. Pedro testified that Betancourt told him 

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

location, and kill them both. Pedro, still bound, managed to 

stand, exit the open door of the shed, and jump to the nearest 

house, evidently where Paula Chadwick and Bob Chadwick 

lived and where officers found Pedro. Torres also testified that 

he and Betancourt had kidnapped Pedro.

In 2015, following a jury trial, Betancourt was convicted 

of count I, kidnapping, a Class IA felony, for which he was 

originally sentenced to a term of life imprisonment; count II, 

use of a firearm to commit a felony, a Class IC felony, for 

which he was originally sentenced to a term of 10 to 30 years’ 
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Cite as 310 Neb. 440

imprisonment, including a mandatory minimum of 5 years’ 

imprisonment; and count III, conspiracy to commit kidnapping, a Class II felony, for which he was originally sentenced 

to a term of 30 to 50 years’ imprisonment. The sentences for 

kidnapping and conspiracy were to be served concurrently, and 

the sentence for use of a firearm was to be served consecutively thereto.

Prior to trial, Betancourt was variously represented by the 

Madison County public defender and, subsequently, by private counsel. Through trial and sentencing, Betancourt was 

again represented by the Madison County public defender’s 

office, through a different public defender and a deputy public defender. Betancourt had different counsel for his direct 

appeal and subsequent resentencing and still other counsel in 

Betancourt II, one of whom continues to represent Betancourt 

in this postconviction proceeding.

On the direct appeal, we affirmed the convictions and 

affirmed the sentence in part and remanded the sentence in 

part for resentencing on the conspiracy count to impose a life 

sentence rather than a range of years. Betancourt I, supra. On 

January 27, 2017, without objection, Betancourt was resentenced on his conspiracy conviction “to life imprisonment 

without parole.”

On February 27, 2017, Betancourt filed a motion for forensic DNA testing seeking to have certain items of physical evidence, including duct tape, tennis shoes, and shoelaces, tested 

for DNA evidence. The record showed that the evidence had 

been destroyed prior to the filing of the motion. Although originally arrested in 2004, Betancourt was deported and rearrested 

in 2013. At the time the evidence was destroyed in 2010, 

Betancourt had been deported, his whereabouts were unknown, 

and the charges against him had been pending for 7 years. 

Following a hearing, the district court overruled Betancourt’s 

motion for DNA testing. Because the material sought to be 

tested was not in the actual or constructive control of the 

State or others as required by Neb. Rev. Stat. § 29-4120(1)(b) 
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STATE v. BETANCOURT-GARCIA

Cite as 310 Neb. 440

(Reissue 2016), we affirmed the district court’s order. See 

Betancourt II, supra.

On October 19, 2017, Betancourt filed a verified petition 

for postconviction relief. Following a records hearing on the 

operative postconviction motion, the district court granted an 

evidentiary hearing on three of Betancourt’s claims, including 

his claim that appellate counsel failed to raise the issue of the 

trial counsel’s failure to explore an alibi defense; the choice to 

pursue a misidentification defense; and the failure to object to 

Betancourt’s invalid sentence for count II, which should not 

have included a mandatory minimum. The district court denied 

Betancourt’s remaining claims without an evidentiary hearing. The district court found, with respect to the unsuccessful 

claims addressed in the order, they either were insufficiently 

alleged, were affirmatively refuted by evidence in the record, 

or were not examples of ineffective assistance of trial and/or 

appellate counsel.

Betancourt appeals.

III. ASSIGNMENTS OF ERROR

Betancourt assigns, summarized and restated, that the district court erred when it denied him an evidentiary hearing 

generally on the issues of (1) lost or destroyed evidence, (2) 

ineffective assistance of appellate counsel for failing to raise 

the trial counsel’s ineffectiveness ensuring Betancourt understood a plea offer, and (3) other claims of ineffective assistance 

of appellate counsel. The other claims of ineffectiveness of 

appellate counsel generally relate to failing to raise trial counsel’s ineffectiveness for the following:

•Claim 3(a), not moving to quash counts I (kidnapping) and 

II (use of a firearm to commit a felony) of the information 

based on the statute of limitations;

•Claim 3(b), not moving to quash and/or dismiss count II (use 

of a firearm to commit a felony);

•Claim 3(c), not objecting to hearsay testimony at a preliminary hearing;

•Claim 3(d), not securing a different translator;
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Cite as 310 Neb. 440

•Claim 3(e), operating under a conflict of interest within the 

Madison County public defender’s office;

•Claim 3(f), not calling Ernest Nino-Mucia to testify regarding 

inaccurate translations;

•Claim 3(g), not moving for a directed verdict on count III 

(conspiracy);

•Claim 3(h), not investigating, deposing, and subpoenaing the 

Chadwicks to testify on their observations of Pedro;

•Claim 3(i), not moving for a new trial based on alleged lack 

of opportunity to confront Paula Chadwick;

•Claim 3(j), not objecting to Ortiz’ testimony regarding 

Betancourt’s domestic assault;

•Claim 3(k), not objecting to jury instructions Nos. 2, 4, 8, 13, 

and 15;

•Claim 3(l), not adequately advising Betancourt about his right 

not to testify;

•Claim 3(m), not objecting on remand to the district court’s 

sentence of “life imprisonment without parole” on the conspiracy conviction; and

•Claim 3(n), failing to raise plain error on the district court’s 

refusal to instruct the jury on the lesser-included offense of 

first degree false imprisonment.

IV. STANDARDS OF REVIEW

[1] In appeals from postconviction proceedings, an appellate 

court reviews de novo a determination that the defendant failed 

to allege sufficient facts to demonstrate a violation of his or her 

constitutional rights or that the record and files affirmatively 

show that the defendant is entitled to no relief. State v. Malone, 

308 Neb. 929, 957 N.W.2d 892 (2021), modified on denial of 

rehearing 309 Neb. 399, 959 N.W.2d 818.

[2,3] Claims of ineffective assistance of counsel involve 

mixed questions of law and fact. Id. When reviewing claims of 

ineffective assistance of counsel, an appellate court reviews the 

factual findings of the lower court for clear error and the legal 

determinations de novo. Id.
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STATE v. BETANCOURT-GARCIA

Cite as 310 Neb. 440

V. ANALYSIS

[4] As an initial matter, we observe that Betancourt’s appeal 

of the district court’s order of July 1, 2020, is properly before 

us, because within a postconviction proceeding, an order granting an evidentiary hearing on some issues and denying a 

hearing on others is a final, appealable order as to the claims 

denied without a hearing. State v. Koch, 304 Neb. 133, 933 

N.W.2d 585 (2019). Such an order is appealable because as to 

the denied claim, it is a “final judgment” under Neb. Rev. Stat. 

§ 29-3002 (Reissue 2016). State v. Koch, supra.

Below, we analyze each of Betancourt’s assignments of 

error. We find merit only to Betancourt’s claim that upon 

remand occasioned by Betancourt I, Betancourt’s counsel was 

deficient for failing to object to the district court’s imposition 

of a sentence for conspiracy (count III) of “life imprisonment 

without parole,” rather than “life imprisonment.” We remand 

the cause to the district court for a hearing on this claim, 

and we affirm the order of the district court with respect to 

Betancourt’s remaining claims.

[5-7] A defendant seeking relief under the Nebraska 

Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 

2016), must show that his or her conviction was obtained in 

violation of his or her constitutional rights. State v. Johnson, 

298 Neb. 491, 904 N.W.2d 714 (2017). Postconviction relief 

is a narrow category of relief and is not intended to secure a 

routine review for any defendant dissatisfied with his or her 

sentence. See State v. Malone, supra. A motion for postconviction relief cannot be used to secure review of issues that were 

known to the defendant and which were or could have been 

litigated on direct appeal. Id.

[8,9] An evidentiary hearing on a motion for postconviction 

relief is required on an appropriate motion containing factual 

allegations which, if proved, constitute an infringement of the 

movant’s rights under the Nebraska or federal Constitution, 

causing the judgment against the defendant to be void or 

voidable. State v. Johnson, supra. Section 29-3001(2) of the 
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Nebraska Postconviction Act entitles a prisoner to an evidentiary hearing on a motion for postconviction relief unless the 

motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief. 

State v. Malone, supra. An evidentiary hearing is not required 

if (1) the motion does not contain factual allegations of a violation or infringement of the prisoner’s constitutional rights, (2) 

the motion alleges only conclusions of fact or law, or (3) the 

record affirmatively shows that the prisoner is entitled to no 

relief. Id.

[10,11] Thus, when a district court denies postconviction 

relief without conducting an evidentiary hearing, an appellate 

court must determine whether the petitioner has alleged facts 

that would support a claim of ineffective assistance of counsel 

and, if so, whether the files and records affirmatively show that 

he or she is entitled to no relief. State v. Johnson, supra. If the 

petitioner has not alleged facts which would support a claim 

of ineffective assistance of counsel or if the files and records 

affirmatively show he or she is entitled to no relief, then no 

evidentiary hearing is necessary. Id.

Our ineffective assistance of counsel jurisprudence stems 

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

80 L. Ed. 2d 674 (1984), which held that a criminal defendant’s 

rights under U.S. Const. amend. VI may be violated if he or 

she is afforded inadequate representation by his or her attorney. State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021), 

modified on denial of rehearing 309 Neb. 399, 959 N.W.2d 

818. Under Strickland, we apply a two-step analysis for determining whether a defendant is entitled to postconviction relief 

based on a claim of ineffective assistance of counsel. State v. 

Malone, supra.

[12-14] To prevail under Strickland, a defendant must first 

show that his or her attorney’s performance was deficient, 

meaning it objectively did not equal that of a lawyer with 

ordinary training and skill in criminal law. State v. Malone, 

supra. Second, the defendant must show that he or she suffered 
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STATE v. BETANCOURT-GARCIA

Cite as 310 Neb. 440

prejudice as a result of the attorney’s deficient performance. Id. 

To show that defense counsel’s performance was deficient, a 

defendant must show that counsel’s performance did not equal 

that of a lawyer with ordinary training and skill in criminal 

law. State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019). 

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. A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome. Id. The two prongs of this test 

may be addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption that 

counsel’s actions were reasonable. Id.

1. Destroyed Evidence

Betancourt contends that he received ineffective assistance 

of counsel when, in his direct appeal, his appellate counsel 

failed to raise trial counsel’s ineffectiveness for failing to argue 

that the destruction and unavailability of destroyed evidence 

violated his right to due process. The evidence, which was 

destroyed prior to Betancourt’s rearrest, included tape and cord 

that bound Pedro’s face, ankles, and wrists, and Betancourt 

contends that such evidence could have contained the perpetrator’s skin cells or hair stuck to the tape. Betancourt reasons that if the evidence could have been tested, the absence 

of Betancourt’s DNA or inclusion of DNA other than that of 

Betancourt or Torres would have supported his defenses of misidentification or alibi. He contends that the evidence points to 

bad faith handling of the evidence, because of the method, the 

procedure, and the seriousness of the felonies involved.

The record, including testimony on Betancourt’s motion 

for DNA testing, shows that a local law enforcement officer 

burned the evidence as part of an initiative to clean out the 

evidence locker of evidence from old cases. See Betancourt II, 

supra. At that time, Betancourt was deported, his whereabouts 

were unknown, and the charges against him had been pending 
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Cite as 310 Neb. 440

for 7 years. Even if the evidence was potentially exculpatory, 

the record shows that its destruction was not done in bad faith, 

and under Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 

333, 102 L. Ed. 2d 281 (1988), the State’s acts did not violate 

Betancourt’s right to due process. A hearing on this claim was 

not warranted.

2. Plea Offer

Betancourt claims that appellate counsel was deficient for 

not raising trial counsel’s allegedly deficient conduct concerning plea offers. Betancourt generally asserts that he was not 

properly advised of the penalty for conspiracy to commit kidnapping and that he did not understand the sentencing recommendation from the State. He claims an interpreter contacted 

Betancourt’s counsel and advised that because Betancourt 

believed he was ineligible for good time as an undocumented 

immigrant, Betancourt did not understand the good time law. 

Betancourt claims in particular that counsel failed to present to 

him a plea offer of a Class II felony and a recommendation of 

50 to 50 years’ imprisonment.

Betancourt does not allege, and the record does not suggest, 

that appellate counsel knew or should have known to raise this 

claim. The record shows that Betancourt rejected a plea offer 

of a Class II felony and a recommendation of 20 to 20 years’ 

imprisonment. Thus, there is little reason to believe that he 

would have accepted a 50 to 50 years’ imprisonment offer if 

presented to him in a different way. Even if the claim concerning counsel’s conveyance of the plea offer reflected deficient 

performance, Betancourt was not prejudiced thereby. A hearing 

on this claim was not warranted.

3. Other Claims

(a) Motion to Quash Counts I and II of the 

Information Based on a Statute of 

Limitations Defense

Betancourt asserts that his appellate counsel was deficient 

for not raising ineffectiveness of trial counsel for not filing 
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STATE v. BETANCOURT-GARCIA

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a motion to quash count I, kidnapping, and count II, use of a 

firearm to commit a felony. The district court did not adjudicate this allegation in its order. However, the claim is affirmatively refuted by the record as we determined in Betancourt I, 

wherein we concluded that counts I and II were filed within 

the statute of limitations. Further, Betancourt’s counsel filed a 

motion to quash the State’s amended information based on the 

statute of limitations and specifically sought dismissal on count 

III, conspiracy.

The record showed that on November 17, 2003, the State 

timely filed an initial information charging counts I and II and 

obtained an arrest warrant 2 days after the crimes were committed. The State filed an amended information on May 21, 

2014. The district court conducted a hearing on Betancourt’s 

motion to quash count III. The court heard evidence on whether 

Betancourt fled from justice for purposes of Neb. Rev. Stat. 

§ 29-110(7) (Reissue 2008), which provides that the time 

limitation for filing charges “shall not extend to any person 

fleeing from justice.” That evidence showed the events involving Betancourt’s ultimate arrest in Texas to where Betancourt 

had fled and subsequent extradition to Nebraska. Given the 

undisputed evidence that Betancourt had fled Nebraska and 

by application of § 29-110(7), the district court overruled 

Betancourt’s motion to quash count III. A motion to quash on 

counts I and II would have been similarly unsuccessful under 

§ 29-110(7). Betancourt I, supra. A hearing on this claim was 

not warranted.

(b) Motion to Quash and/or Dismiss Count II, 

Use of a Firearm to Commit a Felony

Betancourt claims that his appellate counsel was ineffective 

for not raising trial counsel’s ineffectiveness for not moving to 

quash or dismiss the use of a firearm to commit a felony charge 

on the ground that the State did not recover the gun described 

by witnesses. Betancourt claims that without the gun, the State 

could not have demonstrated that it met the requirements of 
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Neb. Rev. Stat. § 28-1201 (Reissue 2008), which generally 

describes an operable firearm.

[15,16] In State v. Lee, 195 Neb. 348, 237 N.W.2d 880 

(1976), we held that the State is not required to prove that a 

firearm is operable under a predecessor to our statute criminalizing possession of a firearm by a prohibited person, Neb. Rev. 

Stat. § 28-1206 (Reissue 2008). We stated: “[E]vidence of possession of a revolver or gun of prohibited description, which 

is in apparently good condition and has the characteristics and 

appearance commonly understood to be those of the firearm it 

purports to be, is prima facie evidence sufficient to go to the 

jury.” State v. Lee, 195 Neb. at 350, 237 N.W.2d at 882. We logically apply this rationale to § 28-1201(1), which provides that 

“[f]irearm shall mean any weapon which is designed to or may 

readily be converted to expel any projectile by the action of an 

explosive or frame or receiver of any such weapon.” Thus, the 

operability of a handgun is not relevant to whether it is a firearm used under Neb. Rev. Stat. § 28-1205(1)(a) (Reissue 2008) 

(use of deadly weapon to commit felony). See State v. Clark, 

10 Neb. App. 758, 766, 637 N.W.2d 671, 677 (2002) (firearm 

did not have to be operable to prove use of deadly weapon to 

commit felony). If courts required a firearm to be operable, we 

effectively would be adding an element to this statute. Under 

Nebraska law, all crimes are statutory and no act is criminal 

unless the Legislature has in express terms declared it to be so. 

State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). “‘Had 

the legislature wished to draw a distinction between operable 

and inoperable firearms, it would have done so with clear and 

distinct language.’” State v. Clark, 10 Neb. App. at 765, 637 

N.W.2d at 676-77 (quoting Armstrong v. Commonwealth, 36 

Va. App. 312, 549 S.E.2d 641 (2001)).

The district court did not adjudicate this allegation. However, 

the claim is affirmatively refuted by the record by evidence 

that Betancourt and his coconspirator both used a “firearm.” 

Torres admitted at trial that he and Betancourt threatened Pedro 

with guns, took him to the shed, and left him there while they 
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looked for Pedro’s brother Jose. A hearing on this claim was 

not warranted.

(c) Hearsay Testimony at Pretrial Hearing

Betancourt claims ineffectiveness of appellate counsel for 

failing to raise that trial counsel did not object to hearsay 

testimony during the pretrial hearing on Betancourt’s motion 

for absolute discharge. The testimony consisted of a law 

enforcement officer’s reading from the information contained 

in the records of the Madison County sheriff’s office about 

Betancourt’s arrest in Texas in 2004. Betancourt’s claim is 

affirmatively refuted by the record. The hearing was preliminary, and the rules of evidence did not apply pursuant to Neb. 

Rev. Stat. § 27-1101 (Reissue 2008). A hearing on this claim 

was not warranted.

(d) Change of Interpreter

Betancourt claims that his appellate counsel was ineffective 

for not raising trial counsel’s ineffectiveness for not securing a different translator for Betancourt’s recorded jail phone 

calls. Betancourt alleged that the Madison County Attorney 

suspected Betancourt was tampering with witnesses and that in 

his conversations, Betancourt expressed consciousness of guilt. 

The county attorney directed interpreter Izabel Chavez to listen, translate, and transcribe Betancourt’s recorded phone calls. 

The transcriptions were used against Betancourt. Betancourt 

claims that Chavez had a conflict of interest because, in addition to translating for court appearances and attorney visits, 

Chavez was working under the supervision of the county attorney. He claims numerous errors with the quality of Chavez’ 

translations.

The district court did not adjudicate this allegation. Our 

review of the allegations is that they are insufficient to show 

that a different translator of the jail phone calls would have 

changed the substance of the translation or that Betancourt was 

prejudiced by counsel’s alleged inattentiveness to this claim. A 

hearing on this claim was not warranted.
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(e) Conflict of Interest of Public 

Defender’s Office

Betancourt claims that his trial counsel operated under a 

conflict of interest, because the district court reappointed the 

Madison County public defender’s office to represent him even 

though he had previously fired an attorney from that office for 

“not answering his phone calls, investigating the case, contacting . . . alibi witnesses and communicating with Betancourt.” 

Brief for appellant at 30. Betancourt claims he was unaware 

that he had a conflict of interest with the Madison County public defender’s office, which, if raised, could have compelled 

the court to appoint different attorneys.

[17,18] We define an actual conflict of interest for Sixth 

Amendment purposes broadly. State v. Malone, 308 Neb. 929, 

957 N.W.2d 892 (2021), modified on denial of rehearing 309 

Neb. 399, 959 N.W.2d 818. The phrase “actual conflict of 

interest” encompasses any situation in which a defense counsel 

faces divided loyalties such that regard for one duty tends to 

lead to disregard of another. Id. An actual conflict of interest is 

one that adversely affects counsel’s performance. Id. We have 

recognized that “‘[n]ot all conflicts of interest that affect the 

attorney’s “duty of loyalty” have the same consequences . . 

. .’” State v. Avina-Murillo, 301 Neb. 185, 198, 917 N.W.2d 

865, 875 (2018).

Betancourt’s claim of ineffectiveness based on trial counsel’s 

conflict of interest is insufficiently alleged. He does not claim 

that he notified his appellate counsel of the conflict. Further, 

appointment of a public defender where the defendant has previously worked with the same office and requests appointment 

of counsel from that office, even if it is a conflict, is not the 

type of conflict from which we presume prejudice. See id. A 

hearing on this claim was not warranted.

(f ) Testimony of Nino-Mucia on 

Inaccurate Translations

Betancourt claims that his appellate counsel was ineffective 

for not raising the ineffectiveness of trial counsel for failing 
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to call interpreter Nino-Mucia to testify regarding inaccurate 

translations. Betancourt alleges that Nino-Mucia would have 

testified that the translations performed by Chavez in the 

course of the case (1) were incomplete because the “industry 

standards required that the original Spanish be included in the 

translation transcription”; (2) were of poor quality; (3) included 

omissions, mislabeling of speakers, punctuation errors, and 

typographical errors; (4) included several “fix/add” in the transcriptions; (5) were, in his professional opinion, of poor quality; and (6) were unfit such that they posed a legal issue. Brief 

for appellant at 33. On appeal, Betancourt contends that if 

Nino-Mucia had testified, “one of the jury members could have 

concluded that [Chavez’] translation/transcription was of such 

bad quality” that Betancourt could not fully understand the trial 

proceedings and the nature of the decisions made by his attorneys. Id. at 34. The petition for postconviction relief offers no 

examples of substantive weaknesses of the translations.

We agree with the district court that the allegations were 

insufficiently alleged to warrant an evidentiary hearing. A hearing on this claim was not warranted.

(g) Motion for Directed Verdict 

on Count III, Conspiracy

Betancourt claims that appellate counsel was ineffective 

for failing to raise trial counsel’s ineffectiveness because no 

motion for a directed verdict of acquittal was filed on count 

III, conspiracy to commit kidnapping. Betancourt asserts that 

the State failed to prove beyond a reasonable doubt that he and 

his coconspirator, Torres, had an agreement or understanding to 

kidnap Pedro. He points to testimony by Torres that Betancourt 

asserts shows they had different intentions and objectives on 

the day the crimes were committed. Betancourt claims that trial 

counsel did not make clear to the trial court that Betancourt 

and Torres did not share intentions.

[19,20] The district court did not adjudicate this allegation. 

However, this claim is affirmatively refuted by the record. 

Betancourt’s trial counsel moved for a directed verdict and 
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renewed the motion. Each motion was overruled. Recasting 

trial counsel’s motion for a directed verdict as a more specific argument concerning Betancourt’s intent would not have 

changed the ultimate issue decided by the trial court. We have 

held that with respect to proving the intent element of a conspiracy, “direct evidence of a positive agreement” to jointly 

participate in the violation of a criminal statute is not required 

to establish a crime. See Beyl v. State, 165 Neb. 260, 272, 85 

N.W.2d 653, 660 (1957). A criminal conspiracy must necessarily be entered into with the intent to defraud the State or to 

violate a criminal law, and intent being a matter of the mind, 

it is rarely possible to prove that element of the crime except 

by circumstances. Id. Pedro testified to coordinated and joint 

illegal actions by Betancourt and Torres continuing beyond the 

initial abduction. A hearing on this claim was not warranted.

(h) Inquiry Into Paula Chadwick 

and Bob Chadwick

Betancourt claims that appellate counsel was ineffective for 

not raising trial counsel’s decision not to investigate, depose, 

and subpoena both Paula Chadwick and Bob Chadwick, the witnesses who encountered Pedro after the kidnapping and called 

law enforcement. He claims that the Chadwicks may have been 

able to testify that Pedro was released voluntarily.

The district court did not adjudicate this allegation. On our 

review of the record, we determine that this claim was speculative and, as alleged, is refuted by the record. The testimony suggested by Betancourt regarding how Pedro’s tape was removed 

following his kidnapping and arrival at the Chadwicks’ house 

while still bound would not have supported a lesser crime and 

would not have changed the outcome of the trial. A hearing on 

this claim was not warranted.

(i) Motion for New Trial

Betancourt claims that appellate counsel was ineffective for 

not raising trial counsel’s failure to move for a new trial on the 

basis of his constitutional right to confront Paula Chadwick. 
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He claims that her testimony would have shown that she contaminated the crime scene by helping to cut tape from Pedro’s 

face, ankles, and wrists.

This claim is affirmatively refuted by the record. Paula 

Chadwick was not a witness at trial, and no testimonial statements from her were offered into evidence at the trial. U.S. 

Const. amend. VI provides, in relevant part, that “[i]n all 

criminal prosecutions, the accused shall enjoy the right . . . to 

be confronted with the witnesses against him . . . .” Because 

Paula Chadwick was not a witness against Betancourt, U.S. 

Const. amend. VI does not grant him the right to confront 

her. See Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 

1354, 158 L. Ed. 2d 177 (2004) (observing that “‘witnesses’ 

against the accused,” for Confrontation Clause purposes, are 

“those who ‘bear testimony’”). A hearing on this claim was 

not warranted.

( j) Ortiz’ Testimony on Domestic Assault

Betancourt claims that appellate counsel was ineffective 

for failing to assign that trial counsel was ineffective when 

counsel did not object to the testimony of Betancourt’s wife, 

Ortiz. Such an objection would be based on the grounds of 

spousal privilege and relevance. Ortiz testified that she had 

two children with Betancourt, that she left Betancourt without 

telling him where she went, that she intended to hide from 

Betancourt, and that she had been hiding from Betancourt for 

13 years. Betancourt claims that trial counsel performed deficiently by not informing Ortiz that, if she chose, she would not 

be compelled to testify against her husband. See Trammel v. 

United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 

(1980). Further, Betancourt claims that his trial counsel should 

have objected to Ortiz’ testimony based on relevance and 

forced a hearing pursuant to Neb. Rev. Stat. § 27-403 (Reissue 

2016) to determine if her testimony was relevant and, even if 

relevant, whether its probative value was outweighed by its 

prejudice to Betancourt. Betancourt claims a § 27-403 hearing 
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would have prevented him from being found guilty by the jury 

on an “emotional basis.” Brief for appellant at 42.

With respect to spousal privilege, this claim is affirmatively 

refuted by the record. Betancourt’s trial counsel objected to 

Ortiz’ testimony on spousal privilege grounds and was overruled on the basis of Neb. Rev. Stat. § 27-505(3)(a) (Reissue 

2016) (providing, in relevant part, that spousal privilege may 

not be claimed “[i]n any criminal case where the crime charged 

is a crime of violence . . .”) Trial counsel was not deficient and, 

similarly, appellate counsel was not deficient in not pursuing 

this argument. A hearing on this claim was not warranted.

(k) Jury Instructions

Betancourt next claims that appellate counsel was ineffective for not raising trial counsel’s ineffectiveness for not 

objecting to jury instructions Nos. 2 (presumption of innocence), 4 (prior inconsistent statements), 8 (definition of 

intent), 13 (presence in Madison County), and 15 (elements 

of conspiracy). Reading the jury instructions together, and as 

a whole, the record affirmatively refutes Betancourt’s claims 

with respect to instructions Nos. 2, 4, 8, and 15; the instructions are a correct statement of the law, not misleading, and 

adequately cover the issues supported by the pleadings and 

evidence. Instruction No. 13, regarding Betancourt’s physical 

presence in Madison County, was correct as to count I, kidnapping, and count II, use of a firearm to commit a felony, but 

was erroneous with respect to count III, conspiracy. However, 

this error is harmless.

Jury instruction No. 2, regarding the presumption of innocence, read in relevant part as follows: “The defendant has 

pled not guilty to each of these crimes. He is presumed to be 

innocent. That means you must find him not guilty unless you 

decide that the State has proved him guilty beyond a reasonable doubt.” Contrary to Betancourt’s assertion, the court’s use 

of the word “unless” rather than the phrase “unless and until” 

in instruction No. 2 did not make the instruction defective. See, 

e.g., State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
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Regarding instruction No. 4, contrary to Betancourt’s assertion, the typographical errors to which he draws our attention 

were insignificant and did not detract from the instruction’s 

meaning or purpose. With respect to instruction No. 8, contrary to Betancourt’s assertion, the inclusion of the second 

paragraph, which is not in NJI2d Crim. 5.1, was an accurate 

statement of the law. See State v. Kennedy, 239 Neb. 460, 476 

N.W.2d 810 (1991). Regarding instruction No. 15, contrary to 

Betancourt’s assertion, whether Betancourt fled from justice 

was in fact relevant to whether the conspiracy charge was time 

barred and whether Betancourt could be found guilty of the 

conspiracy charge. See § 29-110(7) (tolling statute of limitations when defendant has fled). See Taylor v. State, 138 Neb. 

156, 292 N.W. 233 (1940). Further, contrary to Betancourt’s 

assertion, it did not improperly shift the burden of proof 

to Betancourt.

[21] Instruction No. 13 read: “An issue in this case is whether 

[Betancourt] was present in Madison County, Nebraska, on 

November 15, 2003. The State must prove that he was.” We 

agree with Betancourt and the State that with respect to count 

III, conspiracy, instruction No. 13 was an inaccurate statement 

of the law because Betancourt’s physical presence in Madison 

County need not have been proved for purposes of the conspiracy. Neb. Rev. Stat. § 28-202(1) (Reissue 2008), which defines 

criminal conspiracy, states:

A person shall be guilty of criminal conspiracy if, with 

intent to promote or facilitate the commission of a felony:

(a) He agrees with one or more persons that they or one 

or more of them shall engage in or solicit the conduct or 

shall cause or solicit the result specified by the definition 

of the offense; and

(b) He or another person with whom he conspired commits an overt act in pursuance of the conspiracy.

Thus, the crime of conspiracy does not require the physical 

presence of the accused. It has been noted that conspiracy 

may be charged in both the place of the agreement, as well as 

any locale where any overt act by any one of the conspirators 
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took place. See 2 Wayne R. LaFave, Substantive Criminal Law 

§ 12.1(b)(2) (3d ed. 2018).

Instruction No. 13 was an accurate statement of the law as to 

count I, kidnapping, and count II, use of a firearm to commit a 

felony, and we conclude that although erroneous as applied to 

the conspiracy charge, any such error was harmless. See State 

v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012). The undisputed evidence was that all three alleged crimes physically 

took place in Madison County, and as such, instruction No. 13 

would not have confused the jury. A hearing on this claim was 

not warranted.

(l) Right Not to Testify

Betancourt claims that appellate counsel did not raise that 

trial counsel did not adequately advise him about his right not 

to testify and that if he decided not to testify, that fact could not 

be considered an admission of guilt and must not influence the 

verdict in any way. Regardless of whether trial counsel advised 

Betancourt he had a right not to testify, the record shows that 

he was so advised by the court. At his arraignment, Betancourt 

was advised of his right not to testify, as well as advised that if 

he chose not to testify, that fact could not be used against him. 

Thus, even if trial counsel failed to advise Betancourt in this 

regard, he was not prejudiced thereby and appellate counsel 

was not ineffective in not pursuing this argument. A hearing on 

this claim was not warranted.

(m) Sentence for Count III, Conspiracy

Betancourt claims that appellate counsel, while serving as 

trial counsel upon remand for resentencing on the conspiracy 

conviction, was ineffective for not objecting to the district 

court’s imposition of a sentence of “life imprisonment without 

parole.” The State concedes that Betancourt’s conspiracy sentence of “life imprisonment without parole” is not authorized.

In Betancourt I, the direct appeal, we remanded the cause 

for resentencing on the conspiracy conviction with directions 

to impose a life sentence. We said:
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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.

Betancourt I, 295 Neb. at 192, 887 N.W.2d at 313. Despite this 

direction, the district court on January 27, 2017, resentenced 

Betancourt to a term of “life imprisonment without parole.”

We agree with Betancourt and the State that counsel was 

deficient by failing to object to an improper sentence for count 

III, conspiracy to commit kidnapping. Because this is a postconviction proceeding brought under the provisions of § 29-3001 

et seq., rather than vacating this sentence, this court is required 

to remand the cause to the trial court for a hearing. See State v. 

Rolling, 218 Neb. 51, 352 N.W.2d 175 (1984).

(n) Jury Instruction on Lesser-Included Offense 

of First Degree False Imprisonment

Betancourt claims that his appellate counsel was ineffective 

for not challenging the district court’s refusal to instruct the 

jury on the lesser-included offense of first degree false imprisonment. He claims that such an instruction would have allowed 

the jury to determine whether Betancourt intended to commit 

kidnapping or the crime of first degree false imprisonment.

The lesser-included offense instruction was not warranted by 

the evidence. This claim is affirmatively refuted by the record. 

We have stated:

“Where the prosecution has offered uncontroverted evidence on an element necessary for a conviction of the 

greater crime but not necessary for the lesser offense, 

a duty rests on the defendant to offer at least some 
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evidence to dispute this issue if he or she wishes to have 

the benefit of a lesser-offense instruction.”

State v. Stabler, 305 Neb. 415, 424-25, 940 N.W.2d 572, 580 

(2020). It is the intent to terrorize that distinguishes kidnapping 

from first degree false imprisonment. State v. Becerra, 261 

Neb. 596, 624 N.W.2d 21 (2001). In this case, the State offered 

ample evidence that Betancourt and Torres intended to terrorize Pedro through their words and acts, and Betancourt did not 

introduce evidence to dispute the issue of intent to terrorize. A 

hearing on this claim was not warranted.

VI. CONCLUSION

The district court erred when it failed to determine that 

Betancourt was entitled to an evidentiary hearing regarding 

his claim that counsel who appeared with Betancourt at the 

resentencing upon remand from Betancourt I was deficient for 

failing to object to the resentence of “life imprisonment without parole” for conspiracy. This is not an authorized sentence; 

a sentence of life imprisonment is authorized. The judgment 

of the district court is reversed with respect to this claim, and 

the cause is remanded to the district court with directions to 

conduct a hearing on Betancourt’s sentence for conspiracy. On 

Betancourt’s remaining claims, we affirm the judgment of the 

district court that denied postconviction relief without an evidentiary hearing.

Affirmed in part, and in part reversed 

and remanded with direction.

Funke and Freudenberg, JJ., not participating.