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State v. Cardona1/29/2002
1. Criminal Law: Courts: Appeal and Error. Upon appeal from a county court in a criminal case, a district court acts as an intermediate appellate court, rather than as a trial court, and its review is limited to an examination of the county court record for error or abuse of discretion. Both a district court and a higher appellate court generally review appeals from a county court for error appearing on the record.
2. Pleas: Appeal and Error. A trial court is afforded discretion in deciding whether to accept guilty pleas, and an appellate court will reverse the trial court's determination only in case of an abuse of discretion.
3. Sentences: Appeal and Error. Sentences within statutory limits will only be disturbed by an appellate court if the sentence complained of was an abuse of judicial discretion.
4. ____: ____. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.
5. Appeal and Error. Plain error will be noted only where an error is evident from the record, prejudicially affects a substantial right of a litigant, and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.
6. Pleas: Proof. In order to support a finding that a plea of guilty or nolo contendere has been entered freely, intelligently, voluntarily, and understandingly, the court must (1) inform the defendant concerning (a) the nature of the charge, (b) the right to assistance of counsel, (c) the right to confront witnesses against the defendant, (d) the right to a jury trial, and (e) the privilege against self-incrimination; and (2) examine the defendant to determine that he or she understands the foregoing. Additionally, the record must establish that (1) there is a factual basis for the plea and (2) the defendant knew the range of penalties for the crime with which he or she is charged.
7. Criminal Law: Right to Counsel. A criminal defendant who is represented by counsel need not be informed that she or he has a right to be so represented.
8. Constitutional Law: Effectiveness of Counsel: Proof. In order to sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution and Neb. Const. art. I, § 11, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defendant, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.
9. Effectiveness of Counsel: Records: Appeal and Error. Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question.
Appeal from the District Court for Lancaster County, Paul D. Merritt, Jr., Judge, on appeal thereto from the County Court for Lancaster County, Laurie J. Yardley, Judge. Judgment of District Court affirmed.
INTRODUCTION
Roldan Cardona was convicted on the charge of refusing to submit to a chemical test in the county court for Lancaster County, Nebraska, in violation of Lincoln Mun. Code § 10.16.040 (1998). The Lancaster County District Court affirmed the lower court's conviction and sentence, and Cardona now appeals from the ruling of the district court.
BACKGROUND
On July 14, 2000, Cardona was involved in a car accident that resulted in Cardon
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