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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. FIERRO

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.

ALAN A. FIERRO, APPELLANT.

Filed February 9, 2021. No. A-20-496.

Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge. 

Affirmed.

Joe Nigro, Lancaster County Public Defender, and Paul E. Cooney for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

Pirtle, Chief Judge, and Moore, and Riedmann, Judges.

Moore, Judge.

I. INTRODUCTION

Alan A. Fierro appeals from his plea-based conviction in the district court for Lancaster 

County for Refusal to Submit to a Chemical Test -- 3 prior convictions, a Class IIA felony. Fierro 

was sentenced to a term of incarceration of 2 to 4 years. On appeal, Fierro asserts that the sentence 

imposed is excessive and that he received ineffective assistance of counsel. For the reasons set 

forth herein, we affirm.

II. BACKGROUND

On November 14, 2019, the State filed an information, charging Fierro with Driving Under 

the Influence -- 4th offense (Count 1), a Class IIIA felony, and Refusal to Submit to a Chemical 

Test -- 3 prior convictions (Count 2), a Class IIA felony.
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On January 29, 2020, pursuant to a plea agreement, Fierro pled no contest to Count 2 and, 

in exchange, the State agreed to dismiss Count 1. Fierro was advised by the court of the charge to 

which he was pleading no contest, the possible penalties, and the constitutional rights he was 

waiving by entering his plea, which Fierro stated he understood. Fierro stated that other than the 

plea agreement, he was not threatened or promised anything in order to get him to waive his rights 

and enter a no contest plea, nor was he promised a specific sentence. Fierro also acknowledged 

that he understood the district court would determine the appropriate sentence, within the limits of 

the statute. Fierro stated he was entering his plea and waiving his rights freely and voluntarily.

The following factual basis was provided to support Fierro’s plea:

On or about July 4th, 2019. . . a Game and Parks officer was on patrol at Branched 

Oak State Recreation Area in Lancaster County, when at approximately 10 o’clock p.m., 

he observed a vehicle, a dark GMC Yukon, make a left-hand turn from the campground 

entrance onto West Branched Oak Road. That vehicle pulled out in front of another vehicle 

that was travelling west, forcing that vehicle to slow abruptly.

The Yukon, then, pulled over of its own volition to the side of the road and stopped. 

The conservation officer pulled in behind the driver to see if he needed assistance, and then 

he had contact with the driver, who was identified as Alan Fierro.

Upon contact, he could smell the odor of alcoholic beverage coming from inside 

the vehicle. Mr. Fierro’s eyes appeared to be bloodshot and watery. He admitted to 

consuming alcoholic beverages prior to speaking with the officer, and he had slurred 

speech at that time.

As he exited his vehicle, he appeared to be unsteady on his feet. The odor of 

alcoholic beverage continued after he entered the officer’s vehicle. Horizontal gaze 

nystagmus was conducted, and all six clues were observed. Due to safety concerns in the 

area, the other standardized field sobriety tests were not conducted.

Mr. Fierro indicated that he knew that he would not pass the breath test and 

ultimately refused to submit to a preliminary breath test. He was subsequently placed under 

arrest for driving under the influence, where he was advised by reading a post-arrest 

chemical test advisement -- or having a post-arrest chemical test advisement form read to 

him. He ultimately refused to provide a breath sample on the DataMaster. All these events 

occurred at Lancaster County, Nebraska.

The court then found beyond a reasonable doubt that Fierro understood the nature of the 

charges and possible sentences, that his plea was made freely, knowingly, intelligently, and 

voluntarily, and that the factual basis was sufficient to support Fierro’s plea. The court accepted 

Fierro’s plea of no contest. The court then ordered a presentence investigation (PSI).

Fierro was sentenced on June 12, 2020. The district court proceeded with an enhancement 

hearing, where the State offered exhibits of Fierro’s three prior convictions, which were received 

without objection. The district court reviewed the exhibits, found each was proper for 

enhancement, and found Fierro guilty of Refusal to Submit to a Chemical Test -- 3 prior 

convictions, a Class IIA felony.

During sentencing, defense counsel informed the district court of certain additions and 

corrections to the PSI, including that “Mr. Fierro’s currently in intensive outpatient program” and 
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that although the probation officer provided an addendum to the PSI stating Fierro was on 

probation, Fierro had since been released from probation the previous week. When given the 

opportunity to provide further information to the district court, which may be relevant to 

sentencing, Fierro declined to do so.

Defense counsel, advocating for the statutory minimum sentence of one year 

imprisonment, made the following argument to the district court:

Judge, I do not believe that at the time of this offense Mr. Fierro was yet on 

probation, however, he did apparently have a case pending, so that creates a problem for 

Mr. Fierro as to what he can do in reference to sentencing, and I’m asking, Judge, that you 

sentence Mr. Fierro to the statutory mandatory -- the statutory minimum in this case, which 

would be one year, and allow Mr. Fierro a time to self-surrender. That way, Mr. Fierro can 

make an application for work release, and he can continue working.

As you know, he has a good job. He’s an electrician apprentice, making $21.00 an 

hour. He has a family, children that he is the sole provider for, so I believe that would be a 

reasonable sentence and allow Mr. Fierro a time for him to surrender.

Prior to imposing a sentence, the district court stated it had reviewed the PSI and made the 

following comments:

As you know, Mr. Fierro, driving under the influence of alcohol is a very dangerous 

offense, and repeated violations are also a very dangerous offense to both -- well, to society, 

basically. I don’t think that needs much explanation. I do not consider you to be a candidate 

for probation, at least on the nature of the offense and the number of times that you have 

committed it.

Fierro was sentenced to a term of 2 to 4 years’ imprisonment, along with the statutorily required 

15-year license revocation.

Fierro now appeals.

III. ASSIGNMENTS OF ERROR

Fierro assigns that he was denied effective assistance of counsel, specifically arguing that 

trial counsel improperly implied ineligibility for probation, failed to introduce evidence regarding 

Fierro’s participation in substance abuse treatment, and failed to introduce evidence regarding 

mitigating circumstances and factors favoring probation. Fierro also assigns that the district court 

abused its discretion in imposing an excessive sentence.

IV. STANDARD OF REVIEW

Whether a claim of ineffective assistance of trial counsel can be determined on direct 

appeal presents a question of law, which turns upon the sufficiency of the record to address the 

claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a 

statute or constitutional requirement. State v. Martinez, 306 Neb. 516, 946 N.W.2d 445 (2020). 

We determine as a matter of law whether the record conclusively shows that (1) a defense counsel’s 

performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel’s 

alleged deficient performance. State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
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An appellate court will not disturb a sentence imposed within the statutory limits absent an 

abuse of discretion by the trial court. Id. An abuse of discretion occurs when a trial court’s decision 

is based upon reasons that are untenable or unreasonable or if its action is clearly against justice 

or conscience, reason, and evidence. State v. Martinez, supra.

V. ANALYSIS

1. INEFFECTIVE ASSISTANCE OF COUNSEL

When a defendant’s trial counsel is different from his or her counsel on direct appeal, the 

defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is 

known to the defendant or is apparent from the record, otherwise, the issue will be procedurally 

barred in a subsequent postconviction proceeding. See State v. Garcia, supra. An ineffective 

assistance of counsel claim is raised on direct appeal when the claim alleges deficient performance 

with enough particularity for (1) an appellate court to make a determination of whether the claim 

can be decided upon the trial record and (2) a district court later reviewing a petition for 

postconviction relief to recognize whether the claim was brought before the appellate court. Id.

Whether a claim of ineffective assistance of trial counsel can be determined on direct 

appeal depends upon the sufficiency of the record to address the claim to determine whether a 

defense counsel’s performance was deficient and whether the defendant was prejudiced by the 

alleged deficient performance. State v. Thiesen, 306 Neb. 591, 946 N.W.2d 677 (2020). The record 

on direct appeal is sufficient if it establishes either that trial counsel’s performance was not 

deficient, that the appellant will not be able to establish prejudice, or that trial counsel’s actions 

could not be justified as a part of any plausible trial strategy. Id. When a claim of ineffective 

assistance of trial counsel is raised on direct appeal, the appellant is not required to allege 

prejudice; however, an appellant must make specific allegations of the conduct that he or she 

claims constitutes deficient performance. State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).

To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her 

counsel’s performance was deficient and that this deficient performance actually prejudiced the 

defendant’s defense. State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020). To show that 

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. Anderson, 305 Neb. 

978, 943 N.W.2d 690 (2020). To show prejudice in a claim of ineffective assistance of counsel, 

the defendant must demonstrate a reasonable probability that but for counsel’s deficient 

performance, the result of the proceeding would have been different. Id. A reasonable probability 

is a probability sufficient to undermine confidence in the outcome. Id.

(a) Eligibility for Probation

Although Fierro asserts that his trial counsel implied to the district court that Fierro was 

ineligible for a probationary sentence, we find that the record does not support this claim. Defense 

counsel never stated Fierro was ineligible for probation; instead he indicated because this offense 

was committed while another offense was pending, that could create problems for him in terms of 

sentencing. Here, Fierro was convicted of his fourth DUI-related offense in 10 years, which was a 
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Class IIA felony. It was likely a strategic decision by trial counsel to recommend the statutory 

minimum sentence when probation was unlikely to be imposed.

Further, Fierro is not able to establish that he was prejudiced by trial counsel’s conduct. 

The fact that Fierro had three prior convictions for similar conduct, as well as the danger his 

conduct posed to the safety of the community, was particularly concerning for the district court.

The district court found that due to the dangerous nature of the offenses and repeated violations, 

Fierro was not a candidate for probation. Since the district court refused to follow trial counsel’s 

recommendation of 1 year’s imprisonment, which was more serious than a request for probation, 

there is no reasonable probability the district court would order a sentence of probation had trial 

counsel advocated for it. Therefore, this claim of ineffective assistance of counsel fails.

(b) Evidence of Substance Abuse Treatment

Fierro asserts his trial counsel was deficient by failing to introduce evidence of Fierro’s 

participation in substance abuse treatment and his efforts at rehabilitation. While it is true that no 

detailed evidence was introduced regarding Fierro’s participation in treatment, trial counsel did 

advise the district court of Fierro’s participation in an intensive outpatient program when 

discussing changes to the PSI. The PSI also contained a substance abuse evaluation which 

recommended that Fierro engage in such a program. Fierro was offered the opportunity to tell the 

court anything he wanted it to know before sentence was imposed and again he did not provide 

further details regarding his treatment. The record is sufficient to show that trial counsel’s 

performance was not deficient in this regard.

Further, Fierro cannot establish that there was a reasonable probability that his sentence 

would have been different had further details regarding his treatment been known to the court. As 

noted above, the district court was concerned about the serious nature of Fierro’s repeated actions 

of driving while intoxicated and found that he was not an appropriate candidate for probation. We 

find this claim of ineffective assistance of counsel to be without merit.

(c) Evidence of Mitigating Circumstances

Fierro asserts his trial counsel failed to adequately advocate certain mitigating 

circumstances favoring probation during the sentencing hearing; including his age, his decision to 

plead no contest, his expression of remorse, his employment history, his efforts towards 

rehabilitation, and the excessive hardship a term of imprisonment would cause for his dependents. 

However, the record reflects that trial counsel advised the court of Fierro’s participation in a 

substance abuse treatment program, Fierro’ current employment as an electrician’s apprentice, and 

that Fierro was the sole provider for his children.

The record also reflects that the district court reviewed the contents of the PSI, which 

included Fierro’s age (30); the plea agreement in which a second felony offense was dismissed in 

exchange for Fierro’s no contest plea to the remaining charge; information regarding his 

employment as an electrician’s apprentice earning $21 per hour; his responsibility for one 

dependent and the fact his girlfriend was expecting another child in July 2020; his completion of 

a substance abuse evaluation; his expected commencement of intensive outpatient treatment, 

which involved attendance three times per week; and his expression of feeling bad about the 

incident, as it could have resulted in an accident. In addition, at sentencing, Fierro himself 
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acknowledged that he had made some “poor choices behind the wheel” that he was not proud of, 

and he asked the court to give him an opportunity to turn himself in after his “wife,” who was “due 

any day,” delivered their child. All of the mitigating factors noted by Fierro were either presented 

to the court at sentencing or included in the PSI. Therefore, Fierro has not shown that his trial 

counsel’s performance at the sentencing hearing was deficient nor can Fierro establish that he was 

prejudiced in any way. This claim of ineffective assistance of counsel also fails.

2. EXCESSIVE SENTENCE

Fierro’s second assignment of error is that the district court imposed an excessive sentence. 

Fierro was convicted of Refusal to Submit to a Chemical Test -- 3 prior convictions, a Class IIA 

felony, in violation of Neb. Rev. Stat. §§ 60-6,197 and 60-6,197.03(8) (Reissue 2016). A Class 

IIA felony is punishable by a minimum of 1 year’s imprisonment and a maximum of 20 years’

imprisonment. Neb. Rev. Stat. § 28-105 (Reissue 2016). This offense also requires a 15-year 

license revocation. Neb. Rev. Stat. § 60-6,197.03(8). Here, Fierro was sentenced to 2 to 4 years’

imprisonment and a 15-year license revocation, which is well within the statutory limits. 

Nevertheless, Fierro argues the district court failed to give proper weight to certain sentencing 

factors, including his remorse for committing the offense, his willingness to enter a plea, the 

hardship a sentence of imprisonment would cause to his dependents, and his rehabilitative efforts.

Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, 

the appellate court must determine whether a sentencing court abused its discretion in considering 

and applying the relevant factors as well as any applicable legal principles in determining the 

sentence to be imposed. State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019). In determining a 

sentence to be imposed, relevant factors customarily considered and applied are the defendant’s 

(1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past 

criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) 

the nature of the offense and (8) the amount of violence involved in the commission of the crime. 

Id. However, the sentencing court is not limited to any mathematically applied set of factors. State 

v. Majikian, 303 Neb. 100, 927 N.W.2d 48 (2019). The appropriateness of a sentence is necessarily 

a subjective judgment and includes the sentencing judge’s observation of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. Id.

According to the presentence investigation, Fierro was 30 years old at the time of the 

investigation. He was unmarried, with an 11-year-old daughter and another child expected to be 

born in July 2020. He dropped out of high school after the 11th grade in order to work and support 

his daughter, and is currently employed as an electrician’s apprentice earning $21 per hour. The 

PSI shows that Fierro’s prior criminal history is extensive. He had two juvenile charges, including 

his first DUI charge. His adult convictions include leaving the scene of a property damage accident, 

racing on streets, possession of marijuana (less than an ounce) (four times), possession of drug 

paraphernalia (four times), liquor in possession of a minor (twice), driving under the influence 

(three times), driving under suspension (twice), resisting arrest, open container, unlawful entry 

without a park permit, assault -- 3rd degree, and criminal mischief. Fierro scored in the 

medium-high risk to reoffend on the overall LS/CMI assessment.

Upon a review of the record, we cannot say that the district court abused its discretion in 

imposing a sentence of 2 to 4 years. The district court reviewed the presentence investigation report 
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before imposing sentence and found that Fierro was not a suitable candidate for probation. The 

decision to impose a sentence of 2 to 4 years is not clearly untenable or unreasonable, nor does the 

record reflect it was based on any inappropriate factors.

VI. CONCLUSION

For the foregoing reasons, we conclude that the record refutes Fierro’s allegations that he 

received ineffective assistance from his trial counsel and that the district court did not abuse its 

discretion in sentencing Fierro to 2 to 4 years’ imprisonment.

AFFIRMED.