State v. Rosas, A-16-468

Background

Jose P. Rosas pled guilty in 2006 to possession of methamphetamine with intent to deliver (Class II) and possession of cocaine (Class IV); he entered drug court but was later terminated and placed on 4 years’ probation in April 2008.
In October 2011 the State charged Rosas with violating his 2006 probation based on new vehicle- and failure-to-appear-related charges arising July 2011; the information referenced only the possession-with-intent conviction.
At an April 2012 hearing Rosas admitted the probation violation after the court advised him of procedural rights and told him he could face the original sentencing range for the Class II conviction; a factual basis was stated and counsel confirmed access to evidence.
In June 2012 the court revoked probation and imposed concurrent sentences: 20–25 years for the methamphetamine conviction and 20 months–5 years for the cocaine conviction; related 2011-case sentences were ordered consecutive but that case’s appeal was dismissed.
Rosas moved to withdraw his admission and later filed appeals and postconviction motions alleging (1) the admission was not knowing/voluntary, (2) sentence was excessive, and (3) ineffective assistance of counsel; after a postconviction hearing he obtained a new direct appeal in the 2006 case, which is the subject of this decision.

Issues

Issue	Rosas’ Argument	State’s Argument	Held
Whether Rosas’ admission to probation violation was knowing, voluntary, intelligent	Admission invalid because factual basis unclear; court failed to re-advise penalties for cocaine; court should have probed competency (post-accident medication)	Admission met revocation-hearing due process and statutory requirements; factual basis and disclosure provided; court asked competency questions and Rosas answered no impairment	Court affirmed admission was valid; revocation procedures satisfied
Whether sentence imposed was excessive	20–25 years (plus other consecutive time) is excessive and limits parole discretion	Sentences are within statutory ranges and court considered relevant sentencing factors, public danger, and PSR recommending incarceration	Sentence not excessive; no abuse of discretion in sentencing
Whether counsel was ineffective regarding advice about likely sentence	Counsel promised a 2–4 year exposure, which induced the admission; counsel failed to advise properly	Record refutes reliance: judge advised Rosas he faced 1–50 years and Rosas said he understood; thus no deficient performance or prejudice shown	Ineffective-assistance claim denied for 2006 case
Scope / procedural: Whether appellate review may reach related 2011 pleas/sentences	Rosas raised challenges to 2006 and 2011 pleas/sentences	Court limited review to 2006 case because new direct appeal in 2011 case was dismissed for failure to file briefs	Court declined to consider issues tied solely to the 2011 case in this appeal

Key Cases Cited

State v. Johnson, 287 Neb. 190, 842 N.W.2d 63 (Neb. 2014) (standards and due-process protections for probation revocation)
State v. Bol, 294 Neb. 248, 882 N.W.2d 674 (Neb. 2016) (requirements for a knowing, voluntary, and intelligent guilty plea)
In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (Neb. 2010) (probation revocation is a continuation of original prosecution and does not trigger full trial rights)
State v. Schuetz, 18 Neb. App. 658, 790 N.W.2d 726 (Neb. App. 2010) (distinguishing rights in revocation hearings from criminal trials)
State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (Neb. 2015) (no prejudice shown where sentence imposed falls within advisement range)
State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (Neb. 2015) (judge’s advisement can refute claims of reliance on counsel’s promises)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)