State v. Sepulveda

State of NebraSka , appellee , v.
D omiNgo J. SepulveDa , appellaNt.
775 N.W.2d 40
Filed November 20, 2009. 	No. S-08-1291.
1. Judgments: Appeal and Error. When reviewing a question of law, an appellate
court resolves the question independently of the lower court’s conclusion.
2. Convictions: Weapons: Intent. When the felony which serves as the basis of
the use of a weapon charge is an unintentional crime, the accused cannot be con-
victed of use of a firearm to commit a felony.
3. Assault: Intent. The intent required by the assault statutes relates to the act which
produces the injury, not to the consequences which result from the assault.
4. Postconviction: Appeal and Error. A party cannot raise an issue in a postconvic-
tion motion if he or she could have raised that same issue on direct appeal.
5. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), the defendant must show that counsel’s performance was defi-
cient and that this deficient performance actually prejudiced his or her defense.
6. Postconviction: Appeal and Error. Plain error cannot be asserted in a postcon-
viction proceeding to raise claims of error by the trial court.
7. Appeal and Error. Consideration of plain error occurs at the discretion of an
appellate court.
Appeal from the District Court for Douglas County: JohN D.
hartigaN, Jr ., Judge. Affirmed.
Sarah M. Mooney, of Mooney Law Office, for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
heavicaN, 	c.J., 	Wright, 	coNNolly, 	gerrarD, 	StephaN,
mccormack, and miller-lermaN, JJ.
Wright, J.
NATURE OF CASE
Domingo J. Sepulveda was convicted by a jury of man-
slaughter and use of a firearm to commit a felony. His con-
victions and sentences were affirmed on direct appeal. In this
postconviction action, Sepulveda seeks reversal of his convic-
tion for use of a firearm to commit a felony. We affirm the
judgment of the trial court denying postconviction relief.
972 	278 NEBRASkA REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

SCOPE OF REVIEW
[1] When reviewing a question of law, an appellate court
resolves 	the 	question 	independently 	of 	the 	lower 	court’s
conclusion. See State v. Dunster, ante p. 268, 769 N.W.2d
401 (2009).
FACTS
On November 25, 1995, Sepulveda attended a party in a
second-floor apartment in Omaha, Nebraska, where a large
number of people were drinking beer and listening to a live
band. Chris Reich testified that during the party, Sepulveda
showed him a gun in his coat pocket. Shortly thereafter,
Reich got into an argument with a group of other men. A
fight started and moved outside, and many of the partygoers
followed. Three of the men involved in the fight, including
the victim, James Geiger, began to run down the street. Reich
saw Sepulveda pull out his gun, point it at the men, and begin
shooting. Reich heard three or four shots, after which Geiger
fell to the street.
Lorenzo Walker testified that after the gunfire began, people
were “running all over the place,” trying to avoid getting shot.
Walker saw the gun in Sepulveda’s right hand and heard four
or five shots. Later that night, Walker picked up Sepulveda.
Sepulveda bragged about the shooting and stated that he had
made a $20 bet with someone that he would fire his gun
that night.
Justin Doane testified that before the shooting, Sepulveda
had Doane feel the gun in his coat pocket. After the fight,
Doane saw Sepulveda pull the gun from his coat pocket and fire
shots. Another witness testified that after the fight, Sepulveda
ran down the street and fired his gun. She also saw Sepulveda
standing with the gun in his hand after the shooting.
One of Sepulveda’s shots hit Geiger in the back of the head
and caused him to fall down. Geiger was eventually able to
get up and continue walking down the street. A police officer
found him on the porch of a nearby house, and he was taken
to the hospital. Geiger died November 27, 1995, from a single
gunshot wound to the back of his head.
STATE v. SEPULVEDA 	973
Cite as 278 Neb. 972

Sepulveda was charged with murder in the second degree
and use of a firearm to commit a felony. A jury found him
guilty of the lesser-included offense of manslaughter and use
of a firearm to commit a felony. The district court sentenced
Sepulveda to 15 to 20 years’ imprisonment on the manslaugh-
ter conviction and 30 to 50 years’ imprisonment on the use of
a firearm to commit a felony conviction. It ordered the sen-
tences to run consecutively. Separately, Sepulveda was found
guilty of violation of probation and sentenced to 59 to 60
months’ imprisonment.
On direct appeal, Sepulveda claimed that the district court
erred in (1) not allowing him various preliminary hearings,
(2) allowing the State to introduce evidence of the manner in
which he was arrested, (3) imposing excessive sentences, and
(4) finding that there was sufficient evidence to support a guilty
verdict on both charges. In a memorandum opinion filed on
April 30, 1997, in case No. A-96-909, the Nebraska Court of
Appeals affirmed Sepulveda’s convictions and sentences. This
court denied his petition for further review.
Sepulveda’s motion for postconviction relief alleges that
his trial and appellate counsel were ineffective for failing to
recognize that his convictions of manslaughter and use of
a firearm to commit a felony were legally inconsistent. He
asserts that he cannot be convicted of use of a firearm to com-
mit a felony when the underlying felony is an unintentional
crime. Sepulveda claims it is plain error to allow convictions
for manslaughter and use of a firearm to commit a felony. He
also claims that his trial counsel erred in failing to call several
witnesses in his defense.
After an evidentiary hearing, the district court concluded
that Sepulveda’s trial and appellate counsel were not ineffec-
tive. The district court denied postconviction relief and dis-
missed the action. Sepulveda appeals.
ASSIGNMENTS OF ERROR
Sepulveda claims, summarized and restated, that the post-
conviction court (1) erred in concluding that manslaughter
upon a sudden quarrel is an intentional crime; (2) erred in not
finding that Sepulveda’s trial counsel was ineffective because
974 	278 NEBRASkA REPORTS

he did not object to the jury instruction for use of a firearm to
commit a felony when Sepulveda was convicted of manslaugh-
ter, was ineffective because he did not object to convictions
for both manslaughter and use of a firearm to commit a felony,
and was ineffective because he failed to call certain witnesses
at trial; (3) erred in not finding that Sepulveda’s appellate
counsel was ineffective for failing to assign ineffectiveness
of trial counsel regarding the firearm conviction in his direct
appeal; (4) erred in not finding that Sepulveda was innocent;
and (5) erred in refusing to find that it was plain error to allow
convictions for both manslaughter and use of a firearm to com-
mit a felony.
ANALYSIS
maNSlaughter
Sepulveda was initially charged with second degree mur-
der, but the jury found him guilty of manslaughter. Sepulveda
claims that the trial court erred in finding that manslaughter
upon a sudden quarrel is an intentional felony. We conclude
that the trial court did not make such a finding. The court
stated that a sudden quarrel involves an intentional act and
determined Sepulveda had not met his burden of proof to show
that the decision reached would have been different if the
jurors had received different instructions. This was the extent
of the court’s finding on this issue.
[2] When reviewing a question of law, an appellate court
resolves the question independently of the lower court’s conclu-
sion. See State v. Dunster, ante p. 268, 769 N.W.2d 401 (2009).
Sepulveda argues that his manslaughter conviction cannot serve
as the basis for a use of a firearm conviction. When the felony
which serves as the basis of the use of a weapon charge is an
unintentional crime, the accused cannot be convicted of use
of a firearm to commit a felony. See State v. Pruett, 263 Neb.
99, 638 N.W.2d 809 (2002). Thus, if an unintentional act by
Sepulveda was the predicate felony for the charge of use of a
firearm to commit a felony, Sepulveda could not be convicted
of that charge. Sepulveda’s argument fails because his man-
slaughter conviction was not the predicate felony for his use of
a firearm conviction.
STATE v. SEPULVEDA 	975
Cite as 278 Neb. 972

preDicate feloNy for uSe of firearm
to commit feloNy
Use of a deadly weapon to commit a felony occurs when
a person
uses a firearm, a knife, brass or iron knuckles, or any
other deadly weapon to commit any felony which may be
prosecuted in a court of this state or . . . unlawfully pos-
sesses a firearm, a knife, brass or iron knuckles, or any
other deadly weapon during the commission of any felony
which may be prosecuted in a court of this state . . . .
Neb. Rev. Stat. § 28-1205(1) (Reissue 2008). In accordance
with the statute, the defendant must commit an underlying or
predicate felony before he or she can be convicted of use of a
deadly weapon to commit a felony.
Sepulveda’s reliance on State v. Ring, 233 Neb. 720, 447
N.W.2d 908 (1989), and State v. Pruett, supra, is misplaced
because Ring and Pruett are distinguishable from the facts of
this case. In State v. Ring, supra, the defendant was convicted
of felony motor vehicle homicide and using a motor vehicle
as a deadly weapon to commit a felony. We interpreted the
language “‘to commit any felony’” to mean “‘for the purpose
of committing any felony.’” Id. at 724, 447 N.W.2d at 911.
Accordingly, to prove a charge of use of a deadly weapon
to commit a felony, the State was required to prove that the
defendant used the motor vehicle for the purpose of commit-
ting a felony. The elements of motor vehicle homicide include
that the defendant caused the death of the victim unintention-
ally while unlawfully operating a motor vehicle and that the
unlawful operation of the motor vehicle was a result of either
driving while under the influence of alcohol or driving reck-
lessly. The State did not prove that the defendant intentionally
used the motor vehicle as a deadly weapon. Because there was
no intentional action, motor vehicle homicide could not be the
predicate felony for a use of a deadly weapon to commit a
felony conviction. Id.
In State v. Pruett, supra, the defendant was convicted of
manslaughter and use of a deadly weapon to commit a fel-
ony while committing the offense of reckless assault. The
976 	278 NEBRASkA REPORTS

defendant killed his friend by accidentally firing a live round
instead of a “dummy round” at the friend as a joke. On appeal,
the defendant claimed that he could not be convicted of both
manslaughter and use of a deadly weapon to commit a felony
because both manslaughter and reckless assault were uninten-
tional crimes. We agreed. When the felony which served as the
basis of the use of a weapon charge is an unintentional crime,
the accused cannot be convicted of use of a weapon to com-
mit a felony. Id. Because the defendant did not commit any
intentional acts, he could not be convicted of use of a deadly
weapon to commit a felony. Id.
In the case at bar, the jury found that Sepulveda intentionally
used a firearm in the commission of the crime of manslaughter.
Manslaughter is defined as an unintentional crime; however,
assault is not. The trial court instructed the jury that to convict
Sepulveda of manslaughter, it must find four elements:
1. That the Defendant, Domingo J. Sepulveda killed
James Geiger;
2. That he did so without malice, either:
a. upon a sudden quarrel, or
b. unintentionally while in the commission of an unlaw-
ful act;
3. That he did so on or about the 25th day of November,
1995 in Douglas County, Nebraska; and
4. That the Defendant did not act in the defense
of another.
The jury was also instructed:
Before you can find the Defendant guilty of unlawfully
using a firearm in the commission of a felony as charged
in Count II of the Information, the burden is upon the
State of Nebraska to establish beyond a reasonable doubt
each and all of the following:
1. That on or about November 25, 1995, in Douglas
County, Nebraska, the Defendant did commit murder
in the second degree or manslaughter as set forth in
the above;
2. That in the commission of said crime a firearm was
used by Defendant;
STATE v. SEPULVEDA 	977
Cite as 278 Neb. 972

3. That such use of a firearm in the commission of the
crime was intentional; and
4. That Defendant did not act in the defense of
another.
If the crime of manslaughter were the underlying felony for
the weapons charge, Sepulveda could not be convicted of use
of a firearm to commit a felony. However, Sepulveda incor-
rectly assumes that the predicate felony for a conviction of
use of a firearm to commit a felony must be the manslaughter
conviction. The jury was instructed that “assault in any degree
is an unlawful act within the meaning of the manslaugh-
ter statute.”
[3] First degree assault is intentionally or knowingly caus-
ing serious bodily injury to another person. Neb. Rev. Stat.
§ 28-308 (Reissue 2008). First degree assault is a felony and
a general intent crime. State v. Cebuhar, 252 Neb. 796, 567
N.W.2d 129 (1997). The intent required by the assault statutes
relates to the act which produces the injury, not to the conse-
quences which result from the assault. See State v. Williams,
243 Neb. 959, 503 N.W.2d 561 (1993).
Although Sepulveda may not have intended that Geiger would
be killed as a result of Sepulveda’s actions, there is no doubt
that Sepulveda intended the assault of Geiger. Manslaughter
can occur either upon a sudden quarrel or unintentionally while
in the commission of an unlawful act. There was no evidence
that Sepulveda suddenly quarreled with Geiger or even that
Sepulveda had personal contact with Geiger.
There was evidence that Sepulveda bet someone $20 that
he would fire his gun that night and showed the gun to several
people before the shooting. Witnesses saw Sepulveda chase
Geiger, point the loaded gun at him, and pull the trigger as
Geiger ran away. This action resulted in the death of Geiger.
The jury found that Geiger’s death was unintentional. It also
found that Sepulveda’s use of the firearm in the commission
of the crime was intentional. Under the circumstances, the act
of firing the gun at Geiger which resulted in Geiger’s death
was an intentional and unlawful assault and was the predicate
offense of use of a firearm to commit a felony. To hold other-
wise would be to ignore the facts.
978 	278 NEBRASkA REPORTS

iNeffective aSSiStaNce of couNSel
[4] Sepulveda claims ineffective assistance of trial and
appellate counsel based on the failure to raise the issue of
manslaughter as an underlying felony of use of a firearm to
commit a felony. The State argues that these claims are barred.
A party cannot raise an issue in a postconviction motion if he
or she could have raised that same issue on direct appeal. State
v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008). However,
Sepulveda alleges ineffective assistance of appellate coun-
sel in failing to claim ineffective assistance of trial counsel.
Postconviction was Sepulveda’s first opportunity to bring this
claim; therefore, it is not procedurally barred. See State v.
Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002).
[5] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
counsel’s performance was deficient and that this deficient
performance actually prejudiced his or her defense. State v.
Hudson, 277 Neb. 182, 761 N.W.2d 536 (2009).
Intentional assault rather than manslaughter was the predi-
cate felony to use of a firearm to commit a felony; therefore,
convictions for both manslaughter and use of a firearm to com-
mit a felony were not inconsistent. Sepulveda’s trial counsel’s
failure to raise the issue was not deficient performance and
did not result in ineffective assistance of counsel. Because
Sepulveda’s trial counsel did not render ineffective assistance
of counsel, Sepulveda’s appellate counsel was not ineffective
for failing to address the issue on appeal. These assignments of
error are without merit.
plaiN error aND actual iNNoceNce
Sepulveda alleges that the postconviction court should have
found that it was plain error for the trial court to instruct the
jury in a way that it could find Sepulveda guilty of use of
a firearm to commit a felony if it found him guilty of man-
slaughter. He also argues that it was plain error to allow the
jury’s verdict of guilty on both charges to stand. He also asserts
that the court erred in not finding plain error because he was
legally innocent of the crime of use of a firearm to commit a
STATE v. SEPULVEDA 	979
Cite as 278 Neb. 972

felony, as the underlying crime of manslaughter is an uninten-
tional crime.
[6,7] Sepulveda essentially argues that the trial court erred in
not recognizing the inconsistency between convictions for both
use of a firearm to commit a felony and manslaughter, and not
instructing the jury accordingly. Plain error cannot be asserted
in a postconviction proceeding to raise claims of error by the
trial court. Consideration of plain error occurs at the discre-
tion of an appellate court. State v. Archie, 273 Neb. 612, 733
N.W.2d 513 (2007). Sepulveda’s claims of plain error merely
repackage his other assignments of error. Accordingly, plain
error is not a claim that Sepulveda can raise in this postconvic-
tion motion.
iNeffective aSSiStaNce of couNSel
for failiNg to call WitNeSSeS
Finally, Sepulveda claims that he received ineffective assist-
ance of counsel because his trial counsel did not call several
individuals to testify on his behalf at trial. A party cannot raise
an issue in a postconviction motion if he or she could have
raised that same issue on direct appeal. State v. Jackson, 275
Neb. 434, 747 N.W.2d 418 (2008). Sepulveda had different
counsel at trial and on direct appeal and could have raised the
issue of his trial counsel’s failure to call these witnesses at that
time. To preserve this claim, Sepulveda needed to allege inef-
fective assistance of appellate counsel for failing to raise the
claim on direct appeal. See State v. Dunster, ante p. 268, 769
N.W.2d 401 (2009). He did not, and accordingly, this assign-
ment of error is barred.
CONCLUSION
Sepulveda was properly convicted of use of a firearm to
commit a felony because the underlying felony was an inten-
tional assault. All of Sepulveda’s assignments of error are
without merit. Accordingly, we affirm the judgment of the
district court.
affirmeD.
980 	278 NEBRASkA REPORTS