State v. Hernandez, 847 N.W.2d 111

Hernandez was charged in 2010 with two counts of first degree sexual assault of a child and two counts of child abuse, plus a habitual-criminal allegation.
Plea agreement resulted in Hernandez pleading guilty to one count of first degree sexual assault of a child (Class II) and one count of child abuse (Class IIIA); other charges were dismissed, habitual-criminal enhancement was forgoen, and the State remained silent at sentencing.
Hernandez received a 16 to 17 year sentence for sexual assault and 18 to 20 months for child abuse, to be served consecutively.
On August 6, 2012, Hernandez filed a pro se postconviction relief motion asserting ineffective assistance of trial counsel during plea negotiations and other allegations.
The district court held an evidentiary hearing limited to trial counsel’s effectiveness in the plea process and denied postconviction relief after finding counsel’s conduct not deficient.
On appeal, Hernandez challenges whether counsel provided ineffective assistance during the plea negotiations, arguing he would have accepted a better offer had counsel advised correctly.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective during plea negotiations	Hernandez contends counsel’s advice misrepresented the March 5 offer and affected decisions	Hernandez claims trial counsel’s performance was deficient in advising and conveying offers	No deficiency; credibility supported counsel; valid plea chain followed.
Whether counsel’s conduct deprived Hernandez of chances for probation	But-for counsel, Hernandez would have accepted the March 5 offer with probation	Counsel advised accepting offers; Hernandez instructed to pursue option A for probation	Probation-focused outcome not shown to be deprived by counsel.
Whether the March 5, 2010, offer was properly conveyed and understood	Hernandez relied on erroneous impression counsel suggested charges would be dismissed	Counsel testified no dismissal promise; offered March 5 remained valid in exchange process	Trial court’s credibility finding supported; offers conveyed accurately.

Missouri v. Frye, 132 S. Ct. 1399 (2012) (right to effective counsel extends to plea negotiations; two-part Strickland test applies)
State v. Vanderpool, 286 Neb. 111 (2013) (deficient performance and prejudice shown by reasonable probability of different outcome)
State v. Lopez, 274 Neb. 756 (2008) (prejudice focus on whether plea process outcome would have differed)
State v. Dunkin, 283 Neb. 30 (2012) (mixed question of law and fact for ineffective assistance claims in postconviction)
State v. Benzel, 269 Neb. 1 (2004) (postconviction fact-finding credibility determinations)
State v. Keyser, 286 Neb. 176 (2013) (standard of review for postconviction findings of fact)