S-23-0738 State of Nebraska (Appellee) v. Rosario Betancourt-Garcia (Appellant)
Appeal from the District Court for Madison County, Judge Mark A. Johnson
Attorneys: Jack W. Lafleur (Moyer, Moyer & Lafleur Appellant) and Austin N. Relph (Asst. Attorney General for Appellee)
Civil: Postconviction Relief and Re-sentencing
Proceedings below: The district court sustained, in part, Appellant’s motion for postconviction relief, and the district court re-sentenced Appellant to ten (10) to thirty (30) years in prison for Use of a Firearm to Commit a Felony and to life in prison for Conspiracy to Commit Kidnapping.
Issues: Appellant makes the following assignments of error: 1) The district court erred in denying Appellant’s allegation that he was entitled to postconviction relief because appellate counsel was prejudicially ineffective by failing to raise his ineffective assistance of counsel claim that trial counsel was constitutionally ineffective and deficient regarding his alibi defense; 2) The district court erred in denying Appellant’s allegation that he was entitled to postconviction relief because appellate counsel was prejudicially ineffective by failing to raise his ineffective assistance of counsel claim that trial counsel was constitutionally ineffective and deficient regarding his misidentification defense: 3) The district court erred and abused its discretion when it denied an evidentiary hearing on Appellant’s remaining allegations of ineffective assistance of appellate counsel; 3(I) The district court erred by denying postconviction relief without conducting an evidentiary hearing on Appellant’s claim that he received ineffective assistance of appellate counsel due to appellate counsel’s failure to raise the issue of trial counsel’s ineffective assistance in not raising or pursuing the issue of the lost or destroyed evidence; 3(II) The district court erred by denying postconviction relief without conducting an evidentiary hearing on Appellant’s claim that appellate counsel was ineffective for failing to raise the issue of trial counsel’s ineffective assistance in failing to explain the plea offer provided to Betancourt so that Appellant understood the same; 3(a) The district court erred in failing to find that appellate counsel was constitutionally ineffective for failing to assign and argue as error that Appellant’s trial counsel, Melia, failed to file any motions or a motion to quash on Count I, kidnapping, and Count II, use of a deadly weapon to commit a felony, as both counts were barred from prosecution due to the applicable statute of limitations; 3(b) The district court erred in failing to find that appellate counsel was constitutionally ineffective for failing to assign or argue that trial counsel should have filed a motion to quash or dismiss the firearm charge as the firearm was not recovered and not offered into evidence as the State could not prove that the alleged firearm met the statutory definition of a firearm; 3(c) The district court erred in failing to find that appellate counsel was constitutionally ineffective for failing to assign and argue that trial counsel, Melia, failed to object to the hearsay testimony of Officer Kotrous at the hearing for counsel’s motion for absolute discharge; 3(d) The district court erred in failing to find that appellate counsel was constitutionally ineffective for failing to assign and argue that trial counsel was ineffective for not objecting or filing a motion to obtain a different interpreter as the interpreter appointed by the court in this case was working for the prosecution and Appellant and, therefore, had a conflict of interest; 3(e) The district court erred in failing to find that appellate counsel was constitutionally ineffective for failing to assign and argue as error, that trial counsel, Headley and Hartner, with the Madison County Public Defender’s office, had a conflict of interest as the district court appointed them to represent Appellant after he had fired the office previously; 3(f) The district court erred in failing to find that appellate counsel was constitutionally ineffective for failing to assign and argue that trial counsel was constitutionally ineffective for failing to call the expert witness concerning the issues of the court appointed interpreter’s deficiencies; 3(g) The district court erred in failing to find that appellate counsel was constitutionally ineffective for failing to file a motion for directed verdict as to Count III, conspiracy to commit kidnapping; 3(h) The district court erred in failing to find that appellate counsel was constitutionally ineffective for failing to allege and argue that trial counsel was constitutionally ineffective for failing to subpoena and call Paula and Bob Chadwick who were present at the crime scene; 3(i) The district court erred in failing to find that appellate counsel was constitutionally ineffective for failing to assign and argue that trial counsel was constitutionally ineffective for failing to file a motion for new trial due to Betancourt’s inability to confront witnesses in violation of his due process rights; 3(j) The district court erred by denying post-conviction relief without conducting an evidentiary hearing on Appellant’s claim that appellate counsel was constitutionally ineffective for failing to assign as error trial counsel’s failure to object to the testimony of Appellant’s wife, Gabriele Ortiz; 3(k) The district court erred by denying postconviction relief without conducting an evidentiary hearing on Appellant’s claim that appellate counsel was constitutionally ineffective for failing to assign as error, trial counsel’s failure to object to Jury Instructions 15, 2, 4, 8, and 13; 3(l) The district court erred by denying postconviction relief without conducting an evidentiary hearing on Appellant’s claim that appellate counsel was deficient because he failed to assign and argue that trial attorneys were constitutionally ineffective for advising Appellant to testify without first informing him that the did not have to testify and that if he decided not to testify, that fact could not be considered as an admission of guilt and must not influence their verdict in any way; 3(m) The district court erred by denying postconviction relief without conducting an evidentiary hearing on Appellant’s claim that appellate counsel was constitutionally ineffective for failing to assign as error the district court’s sentence of life without parole on the conspiracy to commit kidnapping charge; 3(n) The district court erred by denying postconviction relief without conducting an evidentiary hearing on Appellant’s claim that appellate counsel was constitutionally ineffective for failing to assign as error the court’s failure to include a jury instruction on the lesser included offense of first-degree false imprisonment.