State v. Sierra, 305 Neb. 249

Background

Jonathan J. Sierra was tried for burglary, conspiracy, multiple counts of theft (including three counts for tools taken from a garage owned/used by multiple persons), theft of a truck and trailer, and criminal mischief; jury convicted on all but criminal mischief.
Co-defendant/accomplice Jonathan Mally pleaded and testified for the State; evidence included Walmart surveillance photos, cell‑phone location testimony, and tools recovered from Sierra’s and Mally’s residences.
Defense counsel missed reciprocal discovery deadlines and filed a witness list five days before trial; court granted the State’s motion in limine and excluded several late‑disclosed defense witnesses and prevented the alibi defense.
Sierra’s appointed counsel moved to withdraw before trial (motion denied); after trial that counsel was later charged in an unrelated theft matter and Sierra obtained new counsel for sentencing.
On appeal Sierra raised a Double Jeopardy challenge to multiple theft counts and numerous ineffective‑assistance claims (failure to disclose witnesses/serve alibi notice, failures to object/suppress, failure to request accomplice instruction, inadequate communication/recordkeeping, and that counsel’s personal legal problems created a conflict).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Double jeopardy for multiple theft counts (tools belonging to multiple owners taken simultaneously)	State conceded that multiple convictions for the simultaneously stolen tools were improper	Sierra argued multiple counts punished the same offense	Vacated two of the three Class IIA theft convictions; theft of items taken simultaneously from same place is a single offense (plain error)
Denial of counsel’s motion to withdraw	Trial court properly exercised discretion; no showing counsel incompetent	Sierra argued breakdown in communication and counsel incompetence required withdrawal	No abuse of discretion; court inquired at hearing and denial proper
Granting State’s motion in limine excluding late‑disclosed witnesses / precluding alibi	State argued defense violated reciprocal discovery and §29‑1919 remedy was appropriate	Sierra argued Woods and Sixth Amendment right to compulsory process	Court did not abuse discretion; exclusion permissible under §29‑1919 and did not violate Sixth Amendment
Ineffective assistance re: discovery failures, failure to depose/call witnesses, failure to serve alibi, and related trial prep complaints	State: many claims are either without merit or the record is insufficient to evaluate counsel’s strategy	Sierra: counsel’s omission prejudiced defense and deprived him of witnesses/alibi	Most claims cannot be resolved on direct appeal because the record is insufficient to assess deficiency or prejudice; some discrete claims (agreeing not to call fiance; not requesting continuance; not excluding evidence found in Mally’s possession; not objecting to Hanke’s testimony about items from Sierra’s residence) found without merit
Ineffective assistance re: evidentiary/identification objections, cell‑records testimony, search suppression, and proffer statements	State: objections either would likely fail, or record lacks info to evaluate strategy; many issues require further factfinding	Sierra: counsel should have objected/suppressed/authenticated evidence and sought accomplice caution instruction	Record insufficient to resolve most; counsel’s failure to request accomplice caution instruction is unresolved on record (should have been given if requested); some objection failures not shown prejudicial
Claim that counsel was per se ineffective because of counsel’s later criminal charge / conflict of interest	State: no record evidence of conflict or that counsel’s personal matters affected representation	Sierra: counsel’s personal legal issues created a disabling conflict and rendered representation ineffective	Record contains no evidence to support per se ineffectiveness; claim insufficient on direct appeal

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance of counsel: deficient performance and prejudice)
Taylor v. Illinois, 484 U.S. 400 (1988) (no absolute right to call witnesses; courts may limit testimony to protect trial integrity)
Benton v. Maryland, 395 U.S. 784 (1969) (double jeopardy protections apply to states under the Constitution)
State v. Miner, 273 Neb. 837 (2007) (Nebraska double jeopardy precedent regarding multiple punishments)
State v. Chairez, 302 Neb. 731 (2019) (standards for ineffective assistance on direct appeal; whether record suffices)
State v. Woods, 255 Neb. 755 (1998) (limited application of reciprocal discovery and alibi notice rules)
State v. Sellers, 279 Neb. 220 (2010) (defendant entitled to cautionary instruction on accomplice testimony when evidence supports accomplice status)
State v. McGuire, 286 Neb. 494 (2013) (standards for considering motions to withdraw counsel)