State v. Orellana
A-24-846
Neb. Ct. App.Jun 17, 2025Background
- Jose E. Orellana was found guilty after a bench trial of two counts of first degree sexual assault of a child and one count of first degree sexual assault; he was sentenced to an aggregate of 115 to 130 years’ imprisonment.
- The charges stemmed from sexual abuse of S.L., beginning when she was a child and continuing through her adolescence, resulting in two pregnancies, with DNA evidence identifying Orellana as the father of at least one child.
- S.L., her mother Guadalupe, and other evidence corroborated the abuse and paternity.
- Orellana appealed, arguing his trial counsel was ineffective for not seeking an independent DNA test or S.L.’s Planned Parenthood records, and that his sentences were excessive.
- The appellate court reviewed not only his claims, but also sua sponte found plain error in the application of credit for time served in his sentencing.
Issues
| Issue | Orellana’s Argument | State’s Argument | Held |
|---|---|---|---|
| Ineffective assistance – DNA test | Counsel failed to get independent DNA test; this could have shown he wasn’t the child’s father | No evidence further testing would aid; DNA evidence and other testimony were strong | Claim fails; argument is speculative and insufficient |
| Ineffective assistance – medical records | Counsel failed to get Planned Parenthood records that could refute paternity at age 15 | Argument speculative; other strong corroborative evidence existed | Claim fails; speculation not sufficient |
| Excessive sentences | Sentences were excessive and not in line with other, similar cases | Sentences within statutory limits, factually supported by record | Sentences affirmed as within discretion |
| Credit for time served | Not specifically raised | N/A | Plain error found: credit for time served to be applied only once to aggregate sentence |
Key Cases Cited
- State v. Miranda, 313 Neb. 358 (standard on ineffective assistance claims on direct appeal)
- State v. Woolridge-Jones, 316 Neb. 500 (appellate review of sentences within statutory limits)
- State v. Swartz, 318 Neb. 553 (Strickland standards for ineffective assistance of counsel)
- State v. Blaha, 303 Neb. 415 (sentencing factors and appellate review standards)
- State v. Morton, 310 Neb. 355 (no requirement for sentencing courts to compare similar cases)
- State v. Ezell, 314 Neb. 825 (individualized sentencing and appellate review)
- State v. Mabior, 314 Neb. 932 (plain error standard)
- State v. Nelson, 318 Neb. 484 (rules regarding application of credit for time served)