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Nebraska Supreme Court Advance Sheets

296 Nebraska Reports

STATE v. BARRERA-GARRIDO

Cite as 296 Neb. 647

State of Nebraska, appellee, v. 

Arturo Barrera-Garrido, appellant.

___ N.W.2d ___

Filed May 12, 2017. No. S-16-426.

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

To establish a right to postconviction relief because of counsel’s ineffective assistance, the defendant has the burden, in accordance with 

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

674 (1984), to show that counsel’s performance was deficient; that is, 

counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or her case. 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.

3. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is based upon a guilty or no contest plea, the prejudice requirement 

for an ineffective assistance of counsel claim is satisfied if the defendant 

shows a reasonable probability that but for the errors of counsel, the 

defendant would have insisted on going to trial rather than pleading 

guilty or no contest.

4. 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 

Nebraska Supreme Court Online Library

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

07/07/2017 09:11 AM CDT
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STATE v. BARRERA-GARRIDO

Cite as 296 Neb. 647

affirmatively show that he or she is entitled to no relief. However, if the 

motion alleges only conclusions of fact or law, or the records and files 

in the case affirmatively show that the movant is entitled to no relief, no 

evidentiary hearing is required.

5. Effectiveness of Counsel: Pleas: Proof. Self-serving declarations that a 

defendant would have gone to trial are not enough to warrant a hearing; 

a defendant must present objective evidence showing a reasonable probability that he or she would have insisted on going to trial.

Appeal from the District Court for Douglas County: W. 

Mark Ashford, Judge. Affirmed.

Daniel S. Reeker, of Kendall Law Office, P.C., L.L.O., 

for appellant.

Douglas J. Peterson, Attorney General, and Sarah E. Marfisi 

for appellee.

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

Kelch, and Funke, JJ.

Miller-Lerman, J.

I. NATURE OF CASE

Arturo Barrera-Garrido appeals the order of the district 

court for Douglas County which overruled his motion for postconviction relief without conducting an evidentiary hearing. 

We affirm.

II. STATEMENT OF FACTS

In 2014, Barrera-Garrido pled no contest to one count of 

first degree false imprisonment and one count of use of a 

deadly weapon, not a firearm, to commit a felony. The State 

set forth a factual basis in support of the pleas. The State 

generally asserted that Barrera-Garrido had used a knife and 

other means to hold his then-girlfriend, M.C., captive after 

she attempted to leave him “due to some alleged domestic 

abuse.” At the time the pleas were accepted, the State dismissed a third charge, which was for one count of first degree 

sexual assault.
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296 Nebraska Reports

STATE v. BARRERA-GARRIDO

Cite as 296 Neb. 647

As context for the crimes, the State explained that M.C.’s 

sister called police on the morning of February 1, 2014. 

According to the sister, on the previous night, she and her 

husband had attempted to help M.C., but Barrera-Garrido displayed a knife and “pulled” M.C. into a bedroom. The sister 

and her husband then left, hoping their departure would defuse 

the situation. When the police responded to the call, they 

found M.C. “in his, meaning [Barrera-Garrido’s], embrace and 

he had a knife displayed as well.” The police were able to free 

M.C. from Barrera-Garrido.

When police interviewed M.C., she said that the previous night, Barrera-Garrido had pulled her into the bedroom, 

locked the door, and refused to let her leave. She said that 

throughout the night, Barrera-Garrido had “threatened her several times with a knife, indicating that he would kill her if she 

left him as well as have her family killed.” M.C. further stated 

that Barrera-Garrido had “hit her several times all over her 

body and even grabbed her by her throat, squeezing slightly, 

while he threatened her life” and that “he would take the knife 

and tap her left shoulder blade with it over and over while he 

was talking to her.”

M.C. initially told police that Barrera-Garrido had asked 

her to perform oral sex on him, but that when she refused, he 

“grabbed her by the hair” and forced her to engage in oral sex. 

She later stated that she had “volunteered” to perform oral sex 

“thinking that would help her get out of the situation.”

After police arrested Barrera-Garrido, they placed him in 

a cruiser and searched the house for the knife. They did not 

find the knife in the house, but they later found a knife in the 

cruiser in the area where Barrera-Garrido had been seated. The 

State concluded its factual basis by stating that these events 

had occurred in Douglas County, Nebraska.

The district court found that Barrera-Garrido’s pleas had 

been entered knowingly, understandingly, intelligently, and 

voluntarily. The court further found that there was a factual 

basis for the pleas and that proper advisement had been made 
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STATE v. BARRERA-GARRIDO

Cite as 296 Neb. 647

in regard to the potential for removal from the United States. 

The court found Barrera-Garrido guilty of false imprisonment 

in the first degree and use of a deadly weapon, not a firearm, 

to commit a felony.

On September 18, 2014, the court sentenced Barrera-Garrido 

to imprisonment for 5 to 5 years for first degree false imprisonment and for 15 to 20 years for use of a deadly weapon. 

The court ordered the sentences to run consecutively to one 

another.

On September 14, 2015, Barrera-Garrido filed a motion 

for postconviction relief. He claimed that his trial counsel 

provided ineffective assistance in certain respects and that but 

for such ineffective assistance, he would not have entered his 

pleas. He claimed that counsel (1) did not adequately explain 

the charges or the evidence to him, (2) did not “adequately 

address evidentiary issues” and failed to pursue potential witnesses suggested by him, (3) failed to pursue an affirmative 

defense based on his assertion that he possessed a knife for 

the sole purpose of self-defense because M.C.’s family members had threatened him, (4) refused to “fight the charges” 

and instead coerced him to take a plea agreement he did not 

want, and (5) did not adequately advise him regarding the 

consequences of entering pleas and instead advised him that 

“he should just plead guilty to the charges with no plea agreement.” As an additional claim, Barrera-Garrido asserted that 

the court’s order entered after the plea hearing “points out that 

no plea agreement was entered into in the case.”

In an order filed March 29, 2016, the district court overruled Barrera-Garrido’s motion for postconviction relief without conducting an evidentiary hearing. The court considered 

and rejected each of Barrera-Garrido’s claims of ineffective 

assistance of counsel.

The court first addressed Barrera-Garrido’s claim that counsel failed to explain the charges and the evidence against him. 

The court referred to the record of the plea hearing and noted 

that whether or not counsel had advised him properly, the court 
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STATE v. BARRERA-GARRIDO

Cite as 296 Neb. 647

itself “fully explained the charges,” and that Barrera-Garrido 

stated he understood the charges. The court also noted that 

Barrera-Garrido replied in the affirmative when asked whether 

he had sufficient time to discuss the case with his attorney and 

whether the attorney had done a good job. The court finally 

noted that after the State “provided a thorough description” of 

the factual basis for the charges and the evidence supporting 

such factual basis, Barrera-Garrido stated that he did not have 

any questions or concerns for the court. The court concluded 

that these “unequivocal representations” by Barrera-Garrido at 

the plea hearing established that he was not entitled to an evidentiary hearing on his claim that counsel failed to adequately 

explain the charges and evidence against him.

The court then considered together the next three of the five 

claims set forth above. The court characterized the claims as 

a claim that “counsel was ineffective in several areas of his 

investigation of the case, including failing to depose [M.C.], 

not contacting witnesses he provided to counsel or in pursuing a self-defense claim.” The court noted that during the 

plea hearing, both the State and defense counsel referred to 

a deposition of M.C. With regard to Barrera-Garrido’s other 

claims, including his reference to the “other witnesses” that 

counsel allegedly failed to pursue, the court determined that 

Barrera-Garrido “failed to set forth enough facts, such as the 

name[s] of the witnesses or what exculpatory evidence would 

have been found had such further investigation been pursued.” 

The court concluded that these claims did not warrant an evidentiary hearing.

Finally, the court addressed Barrera-Garrido’s claim that 

counsel coerced him to enter pleas and did not pursue plea 

negotiations. The court noted that the record refuted this allegation, because the court stated at the plea hearing that the 

State would request that the sexual assault charge be dismissed 

pursuant to a plea agreement negotiated by defense counsel 

and the county attorney. The court concluded that this claim 

did not warrant an evidentiary hearing.
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STATE v. BARRERA-GARRIDO

Cite as 296 Neb. 647

Barrera-Garrido appeals the district court’s order which 

overruled his motion for postconviction relief without conducting an evidentiary hearing.

III. ASSIGNMENT OF ERROR

Barrera-Garrido claims that the district court erred when it 

overruled his motion for postconviction relief and denied his 

request for an evidentiary hearing on his claims of ineffective 

assistance of counsel.

IV. STANDARD 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. 

Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).

V. ANALYSIS

1. Postconviction Standards

We begin by setting forth standards relating to our review 

of the district court’s order which overruled Barrera-Garrido’s 

motion for postconviction relief.

Barrera-Garrrido makes various postconviction claims of 

ineffective assistance of counsel in connection with the entry 

of his pleas. The district court overruled Barrera-Garrido’s 

motion for postconviction relief without conducting an evidentiary hearing.

[2] To establish a right to postconviction relief because of 

counsel’s ineffective assistance, the defendant has the burden, 

in accordance with Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that counsel’s performance was deficient; that is, counsel’s performance 

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

in criminal law. Next, the defendant must show that counsel’s 

deficient performance prejudiced the defense in his or her case. 
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STATE v. BARRERA-GARRIDO

Cite as 296 Neb. 647

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. State v. 

Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).

[3] When a conviction is based upon a guilty or no contest 

plea, the prejudice requirement for an ineffective assistance of 

counsel claim is satisfied if the defendant shows a reasonable 

probability that but for the errors of counsel, the defendant 

would have insisted on going to trial rather than pleading 

guilty or no contest. See State v. Armendariz, 289 Neb. 896, 

857 N.W.2d 775 (2015).

[4] 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. Ely, supra. However, if the 

motion alleges only conclusions of fact or law, or the records 

and files in the case affirmatively show that the movant is 

entitled to no relief, no evidentiary hearing is required. State v. 

Harrison, 293 Neb. 1000, 881 N.W.2d 860 (2016).

Finally, we note that the State concedes in its brief that 

Barrera-Garrido was represented by his trial counsel during 

the time in which he could have filed a direct appeal and that 

therefore, this postconviction motion was his first opportunity 

to assert ineffective assistance of trial counsel. See State v. 

Payne, 289 Neb. 467, 855 N.W.2d 783 (2014).

2. Merits of Barrera-Garrido’s Appeal

On appeal, Barrera-Garrido generally claims that the district 

court erred when it rejected his claims of ineffective assistance of counsel and overruled his motion for postconviction 

relief without conducting an evidentiary hearing. Although he 

alleged various instances of ineffective assistance, BarreraGarrido focuses on three claims: (1) that counsel failed to 

adequately inform him regarding the charges and the evidence 
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STATE v. BARRERA-GARRIDO

Cite as 296 Neb. 647

against him, (2) that counsel failed to investigate and pursue 

potential witnesses and potential defenses, and (3) that counsel pressured him to enter pleas that were not advantageous 

to him.

(a) Alleged Failure to Inform

Barrera-Garrido first argues that the district court erred 

when it rejected his claim that counsel failed to adequately 

inform him of the charges and the evidence against him. We 

conclude that the district court did not err when it determined 

that this claim did not warrant an evidentiary hearing.

Barrera-Garrido claimed in his postconviction motion that 

“counsel did not fully explain the charges to him and that 

[counsel] did not adequately review the evidence with him.” 

He alleged that as a result of counsel’s failure to adequately 

inform him of these matters, it was “impossible for [him] 

to knowingly and intelligently enter a plea in his case.” The 

district court rejected this claim because the record showed 

that at the plea hearing, the court fully explained the charges 

to Barrera-Garrido and he indicated that he understood the 

charges. The district court also noted that Barrera-Garrido 

stated to the court that he did not have any questions or concerns regarding the factual basis for the pleas that was set forth 

by the State. The district court concluded that these “unequivocal representations” showed that no evidentiary hearing was 

required on Barrera-Garrido’s claim that counsel failed to 

adequately inform him.

In connection with his failure to inform claim, BarreraGarrido refers us to Padilla v. Kentucky, 559 U.S. 356, 130 

S. Ct. 1473, 176 L. Ed. 2d 284 (2010), a case regarding the 

failure to inform a defendant of immigration consequences. 

Barrera-Garrido relies on Padilla in support of his argument that counsel’s failure to explain important information 

to a defendant is considered ineffective assistance regardless of whether or not the court explains such information to 

the defendant. Barrera-Garrido seems to conclude that under 
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STATE v. BARRERA-GARRIDO

Cite as 296 Neb. 647

Padilla deficient performance equates to ineffective assistance 

of counsel. We believe that Padilla does not support the broad 

conclusion Barrera-Garrido urges.

As the State notes, the U.S. Supreme Court in Padilla

stated that allegations of counsel’s failure to inform were sufficient allegations of “constitutional deficiency to satisfy the 

first prong of Strickland,” i.e., deficient performance, but that 

whether the defendant was “entitled to relief on his claim will 

depend on whether he can satisfy Strickland’s second prong, 

prejudice.” 559 U.S. at 369. Consistent with Padilla, we have 

looked to a court’s advisements in a plea hearing to refute a 

defendant’s claim that he was prejudiced by counsel’s failure to 

advise him of important information. See State v. Armendariz, 

289 Neb. 896, 857 N.W.2d 775 (2015).

Whether or not Barrera-Garrido’s counsel adequately 

informed him regarding the charges and the evidence against 

him, Barrera-Garrido could not show prejudice because he was 

informed of the charges and the evidence at the plea hearing. 

We further note that Barrera-Garrido indicated that he understood the charges and did not have concerns regarding the factual basis. Thus, Barrera-Garrido could not show a reasonable 

probability that he would not have entered pleas and insisted 

on going to trial but for counsel’s alleged failures to adequately 

inform him. We therefore determine that the district court did 

not err when it rejected this claim without conducting an evidentiary hearing.

(b) Alleged Failure to Investigate

Barrera-Garrido next claims that the district court erred 

when it rejected his claim that counsel failed to investigate 

and pursue potential witnesses and potential defenses. We conclude that the district court did not err when it determined that 

this claim did not warrant an evidentiary hearing.

In his postconviction motion, Barrera-Garrido alleged that 

trial counsel failed to interview potential witnesses suggested 

by him and failed to investigate and pursue a self-defense 
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STATE v. BARRERA-GARRIDO

Cite as 296 Neb. 647

theory based on his claim that M.C.’s family members were 

threatening him. The district court concluded that these allegations did not warrant an evidentiary hearing, because BarreraGarrido failed to set forth facts to indicate how such further 

investigation would have helped his defense.

In his postconviction motion, Barrera-Garrido did not identify the potential witnesses or what they would have said 

that would have helped his defense. To the extent it may be 

assumed that these witnesses would have supported his claim 

of self-defense based on the existence of threats by members of M.C.’s family, Barrera-Garrido did not show how 

such a defense would have been successful. The charges to 

which Barrera-Garrido pled—false imprisonment and use of a 

weapon to commit a felony—were based on allegations that he 

held M.C. captive overnight after she attempted to leave him 

and that he used a knife to do so. Although the evidence indicated that members of M.C.’s family were present at a previous point in time, the evidence further indicated that for much 

of the period during which Barrera-Garrido was holding M.C. 

captive, only the two of them were present. Barrera-Garrido 

does not explain how the earlier threats required him to use a 

knife to hold M.C. captive or how holding her captive overnight was necessary to defend himself from the earlier threats 

of family members.

Barrera-Garrido presents no plausible explanation of how 

his proposed theory of self-defense could have been successful against the charges of false imprisonment and use of a 

weapon or how any other witnesses could have helped his 

defense. We therefore conclude that the district court did not 

err when it rejected this claim without conducting an evidentiary hearing.

(c) Alleged Failure to Negotiate 

Plea Agreement

Barrera-Garrido finally argues that the district court erred 

when it rejected his claim that counsel failed to negotiate a 
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STATE v. BARRERA-GARRIDO

Cite as 296 Neb. 647

plea agreement or, in any event, pressured him to enter a plea 

agreement that was not advantageous. We conclude that the 

district court did not err when it determined that this claim did 

not warrant an evidentiary hearing.

We note first that in connection with this argument, BarreraGarrido asserts that counsel failed to negotiate a plea agreement. In his brief in this appeal, Barrera-Garrido asserts that his 

pleas were made “pursuant to no negotiated plea agreement.” 

Brief for appellant at 6. To support this assertion, BarreraGarrido refers us to a checkmarked form in the record on 

which a box for “no” is checked next to the words “Negotiated 

Plea.” The record of the hearing at which the court accepted 

Barrera-Garrido’s pleas refutes the claim that there was no 

negotiated plea agreement.

At the beginning of the hearing, Barrera-Garrido’s counsel 

stated, “Judge, we are here and we’ve reached an agreement 

with the State. My client will plead no contest to two of the 

charges and the third will be dismissed.” Later in the hearing, during a colloquy with Barrera-Garrido, the court stated 

that a serious charge of first degree sexual assault was going 

to be dismissed and that “[t]he reason for that is your attorney has worked with the county attorney and negotiated this 

plea arrangement where that third count would be dropped in 

exchange for your pleas to Counts I and II, which you’ve just 

now pled no contest to.” The court then asked Barrera-Garrido, 

“Do you understand the benefit you’re getting or receiving due to your attorney’s efforts?” Barrera-Garrido replied, 

through an interpreter, “Yes.” Therefore, the record refutes 

Barrera-Garrido’s allegation that counsel failed to negotiate a 

plea agreement.

[5] Furthermore, Barrera-Garrido’s general allegation that 

counsel forced him to accept the plea agreement does not warrant an evidentiary hearing. We have stated that self-serving 

declarations that a defendant would have gone to trial are not 

enough to warrant a hearing; a defendant must present objective evidence showing a reasonable probability that he or she 
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296 Nebraska Reports

STATE v. BARRERA-GARRIDO

Cite as 296 Neb. 647

would have insisted on going to trial. See State v. Yos-Chiguil, 

281 Neb. 618, 798 N.W.2d 832 (2011). The record of the plea 

hearing supports the court’s finding that Barrera-Garrido’s 

pleas had been entered knowingly, understandingly, intelligently, and voluntarily. In light of the available evidence 

against him, the plea agreement—pursuant to which the 

State dropped a first degree sexual assault charge—benefited 

Barrera-Garrido. He did not allege facts showing a reasonable 

probability that he would have rejected the plea agreement and 

insisted on going to trial but for counsel’s alleged coercion; 

and his bare assertion of counsel’s coercion did not warrant an 

evidentiary hearing. We conclude that the district court did not 

err when it rejected this claim without conducting an evidentiary hearing.

VI. CONCLUSION

Having reviewed all of Barrera-Garrido’s claims of ineffective assistance of counsel, including those claims specifically 

discussed above, we conclude that the district court did not err 

when it determined that Barrera-Garrido’s motion for postconviction relief should be overruled without conducting an evidentiary hearing. We therefore affirm the district court’s order 

overruling the motion.

Affirmed.