State v. Arellano
A-17-346
| Neb. Ct. App. | Dec 12, 2017Background
- Arellano was charged with eight counts of possession of a firearm by a prohibited person (Class ID felonies), one felony drug count, and two paraphernalia infractions; a jury convicted him on the eight firearm counts only.
- The State relied in part on an ex parte domestic abuse protection order (Exhibit 5) that included a firearm prohibition; the defense argued the return of service did not adequately prove Arellano was served with the specific protection order.
- At a pretrial hearing the court ruled that if properly presented Exhibit 5 would be admissible; no objection was made when Exhibit 5 was offered at trial. Arellano nonetheless testified he was served with a protection order but claimed he did not read the firearm prohibition.
- Arellano filed a motion for new trial 42 days after the verdict; the district court held a hearing and orally overruled the motion.
- Arellano raised multiple ineffective-assistance claims on appeal (failure to move for recusal, failure to call unnamed witnesses, failure to file a motion to suppress, failure to object to Exhibit 5), and challenged jury communications and sentencing credit.
Issues
| Issue | Arellano's Argument | State's/Respondent's Argument | Held |
|---|---|---|---|
| Admissibility of protection order (Exhibit 5) / motion in limine | Exhibit 5 did not show proper service; therefore no notice of firearm prohibition | Exhibit 5’s cover sheet, attachments, case number and return show service; trial counsel waived by not objecting | Waived on appeal for failure to object at trial; admission would have been upheld if objected |
| Timeliness of motion for new trial | Court abused discretion; evidence/jury communications warranted new trial | Motion was filed after the 10-day statutory period and not based on newly discovered evidence | Motion for new trial was untimely and therefore a nullity; merits not reached |
| Jury communications during deliberations | Court continued deliberations and answered jury questions outside counsel; that denied confrontation/notice | No record of improper communications in trial record; issue only raised at untimely new-trial hearing | Not addressed on merits because issue was preserved only in the untimely motion for new trial |
| Ineffective assistance of counsel (multiple claims) | Counsel failed to seek recusal, call witnesses, move to suppress, and object to Exhibit 5 | Some claims are unsupported or record is insufficient; objections to Exhibit 5 would have failed; suppression theory lacks merit | Claims that can be decided on record were rejected (no-merit or insufficient specificity); recusal claim requires more record and was not resolved on direct appeal |
| Credit for time served | (not raised by parties) 95 days credited to each count | Statute and precedent limit applying presentence credit only once across concurrent sentences | Court plainly erred; affirmed conviction but modified sentence to apply 95 days’ credit only to Count I and strike duplicate credits on remaining counts |
Key Cases Cited
- State v. Schreiner, 276 Neb. 393 (Neb. 2008) (motion in limine rulings are not final evidentiary rulings on appeal)
- State v. Filholm, 287 Neb. 763 (Neb. 2014) (standard for appellate review of ineffective-assistance claims)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑part test for ineffective assistance of counsel)
- State v. Glazebrook, 22 Neb. App. 621 (Neb. Ct. App. 2015) (preservation rule: evidentiary rulings raised in motion in limine must be objected to at trial to preserve on appeal)
- State v. Banes, 268 Neb. 805 (Neb. 2004) (presentence custody credit applies only once even when sentences run concurrently)