State v. Yos-Chiguil

III. ConClusIon
Although we find that Ellis’ argument regarding evidence
admitted pursuant to rule 404(2) has merit, we find that the
error was harmless; the physical evidence, and statements Ellis
was reported to have made before the physical evidence con-
nected him to the crime, established his guilt beyond any rea-
sonable dispute. The district court, however, correctly overruled
Ellis’ objections to alleged “jailhouse informer” testimony and
DnA evidence. And we find no merit to Ellis’ constitutional
challenges to nebraska’s capital sentencing scheme or his
claims that the evidence is insufficient to support the findings
of the jury and the sentencing panel. Finally, we find, on our
de novo review, that the death penalty is warranted and pro-
portional in this case. Therefore, Ellis’ conviction and sentence
are affirmed.
A ffirmed.
H eAvicAn, C.J., not participating.
StAte of nebrASkA, Appellee , v.
mAuro YoS-cHiguil , AppellAnt.
798 n.W.2d 832
Filed May 27, 2011. 	no. s-10-671.
1. Jurisdiction: Appeal and Error. An appellate court determines a jurisdictional
question that does not involve a factual dispute as a matter of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusion.
3. Postconviction: Appeal and Error. Whether a claim raised in a postconviction
proceeding is procedurally barred presents a question of law.
4. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel
provided ineffective assistance presents a mixed question of law and fact.
Determinations regarding whether counsel was deficient and whether the defend-
ant was prejudiced are questions of law that an appellate court reviews inde-
pendently of the lower court’s decision. The court reviews factual findings for
clear error.
5. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
6. Postconviction: Final Orders. Within a postconviction proceeding, an order
granting an evidentiary hearing on some issues and denying a hearing on others
is a final order.
618 	281 nEBrAskA rEporTs
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

7. Postconviction: Appeal and Error. In a postconviction motion, an appellate
court will not consider as an assignment of error a claim that was not presented
to the district court.
8. Postconviction: Statutes. neb. rev. stat. § 29-1819.02 (reissue 2008) is not a
general postconviction relief statute.
9. Statutes: Appeal and Error. An appellate court will not read into a statute a
meaning that is not there.
10. Postconviction: Pleas: Waiver. normally, a voluntary guilty plea waives all
defenses to a criminal charge.
11. Postconviction: Pleas: Effectiveness of Counsel. In a postconviction proceed-
ing brought by a defendant because of a guilty plea or a plea of no contest, a
court will consider an allegation that the plea was the result of ineffective assist-
ance of counsel.
12. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. When a
court denies relief without an evidentiary hearing, an appellate court must deter-
mine whether the petitioner has alleged facts that would support a claim of inef-
fective assistance of counsel and, if so, whether the files and records affirmatively
show that he is entitled to no relief.
13. Postconviction: Effectiveness of Counsel: Proof. To establish a right to post-
conviction relief on a claim of ineffective assistance of counsel, the petitioner has
the burden to show that counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the defendant.
14. Effectiveness of Counsel: Proof. To show deficient performance, a defendant
must show that counsel’s performance did not equal that of a lawyer with ordi-
nary training and skill in criminal law in the area.
15. ____: ____. To show prejudice, the defendant must demonstrate a reasonable
probability that but for counsel’s deficient performance, the result of the proceed-
ing would have been different.
16. Effectiveness of Counsel: Pleas: Proof. Within the plea context, in order to
satisfy the prejudice requirement to establish an ineffective assistance of counsel
claim, the defendant must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.
17. ____: ____: ____. To establish an ineffective assistance of counsel claim, the
viability of the defense is relevant as to how it would have reasonably affected
the defendant’s decision whether to plead guilty or go to trial.
18. Postconviction: Effectiveness of Counsel: Proof. A postconviction petitioner
does not need to show that a defense of which counsel failed to advise him would
have succeeded at trial. Instead, he must show only a reasonable probability that
he would have insisted on going to trial.
19. Effectiveness of Counsel: Pleas: Proof. In a claim for ineffective assistance of
counsel, the likelihood of the defense’s success should be considered with other
factors such as the likely penalties the defendant would face if convicted at trial,
the relative benefit of the plea bargain, and the strength of the state’s case. self-
serving declarations that he would have gone to trial will not be enough; he must
present objective evidence showing a reasonable probability that he would have
insisted on going to trial.
sTATE v. yos-ChIguIl 	619
Cite as 281 neb. 618

20. Effectiveness of Counsel: Proof. As with all applications of the ineffective assist-
ance of counsel test under Strickland v. Washington, 466 u.s. 668, 104 s. Ct.
2052, 80 l. Ed. 2d 674 (1984), the question whether a given defendant has made
the requisite showing will turn on the facts of a particular case.
21. Postconviction: Right to Counsel. under the nebraska postconviction Act, it is
within the discretion of the trial court as to whether to appoint counsel to repre-
sent the defendant.
22. Postconviction: Justiciable Issues: Right to Counsel: Appeal and Error.
Where the assigned errors in the postconviction petition before the district court
are either procedurally barred or without merit, establishing that the postconvic-
tion proceeding contained no justiciable issue of law or fact, it is not an abuse of
discretion to fail to appoint counsel for an indigent defendant.
23. Postconviction: Justiciable Issues: Right to Counsel. When the defendant’s
petition presents a justiciable issue to the district court for postconviction deter-
mination, an indigent defendant is entitled to the appointment of counsel.
Appeal from the District Court for Buffalo County: JoHn p.
icenogle, Judge. reversed and remanded.
Mauro yos-Chiguil, pro se.
Jon Bruning, Attorney general, and stacy M. Foust for
appellee.
H eAvicAn, c.J., connollY, gerrArd, StepHAn, mccormAck ,
and miller-lermAn, JJ.
connollY, J.
In 2008, Mauro yos-Chiguil pleaded nolo contendere to
attempted second degree murder and second degree assault.
The Court of Appeals dismissed his direct appeal as untimely.
he then unsuccessfully sought relief under nebraska’s immi-
gration advisement statute.1 he now petitions for postconvic-
tion relief. The district court denied his petition without an
evidentiary hearing, and he appealed. We conclude that we lack
jurisdiction over some, but not all, of yos-Chiguil’s claims. We
remand the claim over which we have jurisdiction for an evi-
dentiary hearing.
BACkgrounD
The state initially charged yos-Chiguil in December 2007
with one count of attempted second degree murder, a Class II
1 see neb. rev. stat. § 29-1819.02 (reissue 2008).
620 	281 nEBrAskA rEporTs

felony2; one count of second degree assault, a Class IIIA fel-
ony3; and two counts of use of a deadly weapon to commit
a felony, a Class III felony.4 As part of a plea bargain, yos-
Chiguil pleaded nolo contendere to amended charges of one
count of attempted second degree murder and one count of
second degree assault. on May 9, 2008, the court sentenced
him to prison for 18 to 28 years on the attempted murder con-
viction and 2 to 5 years on the assault conviction. The court
gave yos-Chiguil credit for 153 days served and ordered that
the sentences be served concurrently. yos-Chiguil did not file
his notice of appeal until June 17, which rendered it untimely
under neb. rev. stat. § 25-1912 (reissue 2008). on July 15,
2008, in case no. A-08-697, the Court of Appeals summarily
dismissed his appeal.
later in 2008, yos-Chiguil sought to withdraw his nolo
contendere pleas under § 29-1819.02, which allows defendants
facing immigration consequences to withdraw their pleas if
the court failed to warn them of such consequences.5 The
district court denied him relief. on appeal in State v. Yos-
Chiguil,6 we upheld the district court’s order. We concluded
that although the trial court did not warn yos-Chiguil of the
effect his conviction would have on efforts to gain naturaliza-
tion, he had not shown that his conviction had had any effect
on such efforts.
yos-Chiguil next moved for postconviction relief, which
is the current appeal. his first claim is somewhat difficult to
pin down. It seemingly alleges both a due process violation
and an ineffective assistance of counsel claim. yos-Chiguil
seems to argue that due process requires strict compliance with
§ 29-1819.02 and that his attorney was ineffective for fail-
ing to press this claim. yos-Chiguil’s next claim is clearer; he
argues that his attorney was ineffective for not explaining that
2 neb. rev. stat. §§ 28-201 and 28-304 (reissue 2008).
3 neb. rev. stat. § 28-309 (reissue 2008).
4 neb. rev. stat. § 28-1205 (reissue 2008).
5 see State v. Mena-Rivera, 280 neb. 948, 791 n.W.2d 613 (2010).
6 State v. Yos-Chiguil, 278 neb. 591, 772 n.W.2d 574 (2009).
sTATE v. yos-ChIguIl 	621
Cite as 281 neb. 618

the defense of intoxication could possibly negate the intent
element required for second degree murder. As his final claim,
yos-Chiguil argues that his attorney was ineffective in failing
to timely perfect his direct appeal. yos-Chiguil explains that
he made his desire to appeal known to his attorney but that it
was frustrated because the attorney wrote all correspondence
to yos-Chiguil in English, a language that yos-Chiguil does
not understand. yos-Chiguil argues that this language barrier
complicated the perfecting of the appeal and ultimately caused
it to be untimely. As relief, yos-Chiguil sought an evidentiary
hearing, discovery, and ultimately a vacation of the convictions
and sentences.
on January 22, 2010, the district court ruled on several of
yos-Chiguil’s claims. The district court denied the first claim
regarding strict compliance with § 29-1819.02. The court
seems to have considered our previous ruling in Yos-Chiguil
dispositive as to that issue. The court also denied the claim
that trial counsel was ineffective in failing to perfect an appeal.
The court said that it was aware of no precedent requiring
that counsel provide translated documents to his client. The
court also noted that yos-Chiguil apparently had access to
translation services in prison because he has been able to file
lengthy legal documents. Finally, the court found that defense
counsel should have discussed an intoxication defense with the
defendant. It gave the state 30 days to brief why the failure
to discuss the intoxication defense should not be considered
ineffective assistance of counsel. yos-Chiguil moved for recon-
sideration of this order, but on February 11 the court denied
this motion.
on June 21, 2010, the court entered an order overruling the
remaining postconviction claim, which asserted that defense
counsel was ineffective for not advising the defendant of an
intoxication defense. The court denied this claim because it
concluded that the argument could have been presented at
an earlier proceeding but was not, and was thus procedurally
barred. The court apparently thought that the argument could
have been presented with yos-Chiguil’s § 29-1819.02 motion.
on July 7, 2010, yos-Chiguil filed his notice of appeal in the
district court, perfecting his appeal to this court.
622 	281 nEBrAskA rEporTs

AssIgnMEnTs oF Error
yos-Chiguil assigns that the district court erred as follows:
(1) in finding that yos-Chiguil’s postconviction motion is
procedurally barred;
(2) in denying yos-Chiguil’s motion for an evidentiary hear-
ing and postconviction relief on his claim that counsel was
ineffective in failing to (a) perfect an appeal, (b) argue that
due process required strict compliance with § 29-1819.02,
and (c) advise yos-Chiguil of the possibility of an intoxica-
tion defense;
(3) in committing plain error by not requiring strict compli-
ance with the terms of § 29-1819.02 when yos-Chiguil entered
his nolo contendere pleas; and
(4) in denying yos-Chiguil’s motion for appointment of
counsel to assist him with presenting the meritorious claims
raised in his postconviction motion.
sTAnDArD oF rEVIEW
[1-3] An appellate court determines a jurisdictional ques-
tion that does not involve a factual dispute as a matter of law.7
When reviewing questions of law, an appellate court resolves
the questions independently of the lower court’s conclusion.8
Whether a claim raised in a postconviction proceeding is pro-
cedurally barred also presents a question of law.9
[4] A claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact.10 Determinations
regarding whether counsel was deficient and whether the defend-
ant was prejudiced are questions of law that we review inde-
pendently of the lower court’s decision.11 We review factual
findings for clear error.12
7 see In re Estate of Hockemeier, 280 neb. 420, 786 n.W.2d 680 (2010).
8 see id.
9 see State v. Haas, 279 neb. 812, 782 n.W.2d 584 (2010).
10 State v. McGhee, 280 neb. 558, 787 n.W.2d 700 (2010).
11 see id.
12 see Haas, supra note 9.
sTATE v. yos-ChIguIl 	623
Cite as 281 neb. 618

AnAlysIs
JuriSdiction
[5] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.13 The state argues that
we lack jurisdiction over yos-Chiguil’s claims that the trial
court dismissed in its January 22, 2010, decision because yos-
Chiguil did not file his notice of appeal within 30 days of the
date of the judgment.14 The state asserts that even if the 30
days did not begin running until February 11 because of yos-
Chiguil’s motion to reconsider, the notice of appeal filed on
July 7 would have still been untimely.
[6] We agree that we lack jurisdiction over several of yos-
Chiguil’s claims. We have previously stated that within a
postconviction proceeding, an order granting an evidentiary
hearing on some issues and denying a hearing on others is a
final order.15 In other words, an order denying an evidentiary
hearing on a postconviction claim is a final judgment as to
that claim.16 under § 25-1912, a notice of appeal must be filed
within 30 days. yos-Chiguil did not file his appeal until July
7, 2010, which, even if the clock did not begin running until
February 11, is well outside the 30 days that yos-Chiguil had
to file his appeal.
so we do not have jurisdiction to hear any claims that were
disposed of in the court’s January 22, 2010, order. These
include the claims that trial counsel was ineffective in not argu-
ing that due process requires trial courts to follow the exact
language of § 29-1819.02 and that trial counsel was ineffec-
tive in perfecting the appeal. Excising these claims from the
errors assigned by yos-Chiguil, we are left with the following
assigned errors to consider: whether the trial court’s failure
to strictly comply with § 29-1819.02 constitutes plain error,
13 State v. Poindexter, 277 neb. 936, 766 n.W.2d 391 (2009).
14 see § 25-1912.
15 see, Poindexter, supra note 13; State v. Harris, 267 neb. 771, 677 n.W.2d
147 (2004); State v. Silvers, 255 neb. 702, 587 n.W.2d 325 (1998).
16 Poindexter, supra note 13.
624 	281 nEBrAskA rEporTs

whether the postconviction court erred in determining that yos-
Chiguil’s ineffective assistance claim regarding the intoxication
defense was barred, and if it was not, whether the claim was
meritorious and whether the court should have appointed coun-
sel for yos-Chiguil.
Strict compliAnce WitH § 29-1819.02
[7] yos-Chiguil argues that it was error for the trial court
that took his plea to not strictly comply with § 29-1819.02. As
mentioned, yos-Chiguil’s first claim for relief in his petition is
somewhat muddled, so it is not entirely clear that yos-Chiguil
presented this argument to the district court. We have previ-
ously said that, in a postconviction motion, we will not con-
sider as an assignment of error a claim that was not presented
to the district court.17
But giving yos-Chiguil the benefit of the doubt and reading
his complaint to include this claim for relief would not help his
cause. Assuming that we read yos-Chiguil’s motion to encom-
pass this claim, the court dismissed this claim in the January
22, 2010, order. The court made clear that the only claim not
dismissed in the January 22 order is the ineffective assistance
of counsel claim regarding the intoxication defense. Because
yos-Chiguil did not timely appeal from that final order, we
lack jurisdiction to consider his strict compliance claim.
ineffective counSel for fAilure to A dviSe
on An intoxicAtion defenSe
yos-Chiguil claimed that his trial counsel was ineffec-
tive because he did not advise him on the possibility of
an intoxication defense. Although this is yos-Chiguil’s first
postconviction proceeding, the district court found that this
argument was procedurally barred because yos-Chiguil had
previously moved to withdraw his pleas under § 29-1819.02.
The court ruled that yos-Chiguil could have raised his ineffec-
tive assistance of counsel argument then. The state concedes
that the district court erred. The state correctly explains that
§ 29-1819.02 is a statutory remedy for the trial court’s failure
17 see Haas, supra note 9.
sTATE v. yos-ChIguIl 	625
Cite as 281 neb. 618

to give an immigration advisement and cannot be used to
assert other errors.
[8] section 29-1819.02 is not a general postconviction relief
statute. The nebraska postconviction Act18 provides relief if
there was a “denial or infringement” of constitutional rights.
But the failure of a trial court to warn a defendant of immigra-
tion consequences does not implicate a constitutional right.19
so a defendant seeking to withdraw his plea because the court
failed to advise him of immigration consequences cannot find
relief under the act.
however, recognizing the unfairness present when a defend-
ant pleads to a crime without knowing the immigration conse-
quences of such a plea, the legislature enacted § 29-1819.02.
This statute requires that courts apprise defendants of the
potential immigration consequences of their pleas and allows
some defendants to withdraw their pleas if a court has failed
to do so. While the Constitution does not require such a
practice, the legislature, in its judgment, determined that fair-
ness did.
[9] section 29-1819.02, however, speaks only to immigration
consequences. nothing in its text indicates that the legislature
intended it to serve as a vehicle for asserting all errors in the
plea process. And we will not read into a statute a meaning that
is not there.20 We conclude that the district court erred in hold-
ing that yos-Chiguil’s claim of ineffective assistance of counsel
was procedurally barred because he could have raised it in his
§ 29-1819.02 motion.
The state, nevertheless, argues that we should still affirm
the decision of the district court, but for a different reason.
The state argues that yos-Chiguil’s pleadings are insufficient
to grant him relief.
[10,11] normally, a voluntary guilty plea waives all defenses
to a criminal charge.21 however, in a postconviction proceeding
18 neb. rev. stat. § 29-3001 et seq. (reissue 2008).
19 see Smith v. State, 287 ga. 391, 697 s.E.2d 177 (2010).
20 Cargill Meat Solutions v. Colfax Cty. Bd. of Equal., ante p. 93, 798
n.W.2d 823 (2011).
21 see State v. McLeod, 274 neb. 566, 741 n.W.2d 664 (2007).
626 	281 nEBrAskA rEporTs

brought by a defendant because of a guilty plea or a plea of no
contest, a court will consider an allegation that the plea was the
result of ineffective assistance of counsel.22
[12] At this stage in the proceedings, the question is not
whether yos-Chiguil is entitled to relief. rather, it is simply
whether his pleadings are sufficient to grant him an evidentiary
hearing. When a court denies relief without an evidentiary
hearing, we must determine whether the petitioner has alleged
facts that would support a claim of ineffective assistance of
counsel and, if so, whether the files and records affirmatively
show that he is entitled to no relief.23
[13-16] To establish a right to postconviction relief on a
claim of ineffective assistance of counsel, the petitioner has the
burden to show that counsel’s performance was deficient and
that counsel’s deficient performance prejudiced the defendant.24
To show deficient performance, a defendant must show that
counsel’s performance did not equal that of a lawyer with ordi-
nary training and skill in criminal law in the area.25 To show
prejudice, the defendant must demonstrate a reasonable prob-
ability that but for counsel’s deficient performance, the result
of the proceeding would have been different.26 Within the plea
context, “in order to satisfy the ‘prejudice’ requirement, the
defendant must show that there is a reasonable probability that,
but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.”27
22 see id.
23 see id.
24 see McGhee, supra note 10. see, also, Strickland v. Washington, 466 u.s.
668, 104 s. Ct. 2052, 80 l. Ed. 2d 674 (1984).
25 State v. Cook, 257 neb. 693, 601 n.W.2d 501 (1999).
26 see McGhee, supra note 10.
27 Hill v. Lockhart, 474 u.s. 52, 59, 106 s. Ct. 366, 88 l. Ed. 2d 203 (1985).
see, also, State v. Vo, 279 neb. 964, 783 n.W.2d 416 (2010); State v.
Silvers, 260 neb. 831, 620 n.W.2d 73 (2000); State v. Buckman, 259 neb.
924, 613 n.W.2d 463 (2000); State v. Lyman, 241 neb. 911, 492 n.W.2d
16 (1992), disapproved on other grounds, State v. Canbaz, 270 neb. 559,
705 n.W.2d 221 (2005); State v. Stevenson, 9 neb. App. 316, 611 n.W.2d
126 (2000); State v. Johnson, 4 neb. App. 776, 551 n.W.2d 742 (1996).
sTATE v. yos-ChIguIl 	627
Cite as 281 neb. 618

The state, while acknowledging that this is the standard we
have long applied to guilty pleas, insists that we have misinter-
preted u.s. supreme Court precedent regarding the prejudice
requirement. The state argues that a showing that the defendant
would have insisted on trial is not enough; the defendant must
also prove that the defense would have likely succeeded at trial.
In support of its argument, the state cites Hill v. Lockhart,28
which contains two paragraphs that have resulted in a split of
authority.29 They read:
We hold, therefore, that the two-part Strickland v.
Washington test applies to challenges to guilty pleas
based on ineffective assistance of counsel. In the con-
text of guilty pleas, the first half of the Strickland v.
Washington test is nothing more than a restatement of
the standard of attorney competence already set forth in
Tollett v. Henderson[30] and McMann v. Richardson.[31] The
second, or “prejudice,” requirement, on the other hand,
focuses on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process. In
other words, in order to satisfy the “prejudice” require-
ment, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going
to trial.
In many guilty plea cases, the “prejudice” inquiry
will closely resemble the inquiry engaged in by courts
reviewing ineffective-assistance challenges to convictions
obtained through a trial. For example, where the alleged
error of counsel is a failure to investigate or discover poten-
tially exculpatory evidence, the determination whether the
error “prejudiced” the defendant by causing him to plead
28 Hill, supra note 27.
29 see Grosvenor v. State, 874 so. 2d 1176 (Fla. 2004).
30 Tollett v. Henderson, 411 u.s. 258, 93 s. Ct. 1602, 36 l. Ed. 2d 235
(1973).
31 McMann v. Richardson, 397 u.s. 759, 90 s. Ct. 1441, 25 l. Ed. 2d 763
(1970).
628 	281 nEBrAskA rEporTs

guilty rather than go to trial will depend on the likelihood
that discovery of the evidence would have led counsel to
change his recommendation as to the plea. This assess-
ment, in turn, will depend in large part on a prediction
whether the evidence likely would have changed the
outcome of a trial. similarly, where the alleged error of
counsel is a failure to advise the defendant of a potential
affirmative defense to the crime charged, the resolution of
the “prejudice” inquiry will depend largely on whether the
affirmative defense likely would have succeeded at trial.
see, e. g., Evans v. Meyer, 742 F. 2d 371, 375 (CA7 1984)
(“It is inconceivable to us . . . that [the defendant] would
have gone to trial on a defense of intoxication, or that if
he had done so he either would have been acquitted or, if
convicted, would nevertheless have been given a shorter
sentence than he actually received”). As we explained in
Strickland v. Washington,[32] these predictions of the out-
come at a possible trial, where necessary, should be made
objectively, without regard for the “idiosyncrasies of the
particular decisionmaker.”33
The state seizes on language in the second paragraph and
argues that yos-Chiguil must show that his defense will ulti-
mately be successful at trial. The state argues that to merely
claim that he would have insisted on a trial is not enough.
[17] We, however, do not read Hill as the state does. under
our reading, a defendant must only allege facts showing a
reasonable probability that he would have insisted on going to
trial had counsel informed him of the defense. The viability
of the defense is relevant as to how it would have reasonably
affected the defendant’s decision whether to plead guilty or go
to trial. But it is not the sole factor to consider.
Two aspects of the above-quoted language lead us to this
reading of Hill. Most important, the Court unequivocally stated
that “in order to satisfy the ‘prejudice’ requirement, the defend-
ant must show that there is a reasonable probability that, but
32 Strickland, supra note 24.
33 Hill, supra note 27, 474 u.s. at 58-60, quoting Strickland, supra note 24.
sTATE v. yos-ChIguIl 	629
Cite as 281 neb. 618

for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.”34 This seems clear.
It is true that the Court also stated, “where the alleged error
of counsel is a failure to advise the defendant of a potential
affirmative defense to the crime charged, the resolution of
the ‘prejudice’ inquiry will depend largely on whether the
affirmative defense likely would have succeeded at trial.”35
But we would emphasize the word largely. This qualifying
language indicates to us that there are other factors at play.
other relevant factors could include the benefit of an offered
plea bargain or the potential penalties the defendant faces. We
do not believe that the ultimate merits of the defense are the
only consideration. But they are relevant to whether the defend-
ant would, in the light of all the circumstances known to him
at the time, roll the dice on that defense and insist on going
to trial.
In Grosvenor v. State,36 the Florida supreme Court con-
fronted the exact argument we find before us. The court
concluded that the defendant did not have to allege that the
defense would have ultimately succeeded at trial to show
prejudice. The court also noted that this approach was the
majority rule.37
The Florida court explained that the viability of any defense
went to the credibility of the defendant’s assertion that he or
she would have insisted on going to trial. In other words, if
counsel failed to advise the defendant of a defense that was
likely unmeritorious, it is doubtful that the defendant was prej-
udiced because he would probably have taken the benefit of a
favorable plea bargain and refused to bet on a long shot.
34 Id., 474 u.s. at 59.
35 Id.
36 Grosvenor, supra note 29.
37 Id. see, also, e.g., Dando v. Yukins, 461 F.3d 791 (6th Cir. 2006); Miller
v. Champion, 262 F.3d 1066 (10th Cir. 2001); Armstead v. Scott, 37 F.3d
202 (5th Cir. 1994); Ex Parte Imoudu, 284 s.W.3d 866 (Tex. Crim. App.
2009); McKeeth v. State, 140 Idaho 847, 103 p.3d 460 (2004); Copas v.
Commissioner of Correction, 234 Conn. 139, 662 A.2d 718 (1995).
630 	281 nEBrAskA rEporTs

The u.s. supreme Court’s recent decision in Premo v.
Moore38 also 	bolsters 	our 	analysis. 	In 	Premo, 	the 	Court
reversed the ninth Circuit’s grant of habeas corpus to an
inmate who alleged that his counsel had provided ineffec-
tive assistance in advising him to plead to the charge without
first attempting to suppress a confession. The Court repeated
that to show prejudice under Hill, a defendant must show “‘a
reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to
trial.’”39 The Court found that the state postconviction court’s
conclusion that the defendant would have accepted the plea
bargain even if the confession had been suppressed was not
unreasonable. The Court noted that the defendant’s early plea
cut short the state’s investigation, during which it could have
found even more incriminating evidence; that the state already
had two other admissible confessions; that the defendant could
face the death penalty or life without parole; and that the
defendant received the statutory minimum sentence under the
plea bargain. The supreme Court’s analysis confirms our prior
decisions holding that the inquiry is whether the defendant
would have pleaded guilty or insisted on trial based on the
circumstances known to him at the time.
[18-20] In sum, a postconviction petitioner does not need
to show that a defense of which counsel failed to advise him
would have succeeded at trial. Instead, he must show only a
reasonable probability that he would have insisted on going to
trial. But the likelihood of the defense’s success is not irrele-
vant; rather, it is relevant to the consideration of whether “a
rational defendant [would have] insist[ed] on going to trial.”40
It should be considered with other factors such as the likely
penalties the defendant would face if convicted at trial, the rela-
tive benefit of the plea bargain, and the strength of the state’s
38 Premo v. Moore, 562 u.s. 115, 131 s. Ct. 733, 178 l. Ed. 2d 649
(2011).
39 Id., 562 u.s. at 129, quoting Hill, supra note 27.
40 Roe v. Flores-Ortega, 528 u.s. 470, 486, 120 s. Ct. 1029, 145 l. Ed. 2d
985 (2000), citing Hill, supra note 27.
sTATE v. yos-ChIguIl 	631
Cite as 281 neb. 618

case. self-serving declarations that he would have gone to trial
will not be enough; he must present objective evidence show-
ing a reasonable probability that he would have insisted on
going to trial.41 “As with all applications of the Strickland test,
the question whether a given defendant has made the requisite
showing will turn on the facts of a particular case.”42
We thus stay true to our prior holdings that to allege inef-
fective assistance of counsel regarding the entry of a guilty
plea, a petitioner must allege only facts that show deficient
performance on the part of counsel and facts that show the
defendant would have insisted on going to trial but for the defi-
cient performance.
having reviewed the pleadings, we conclude that yos-
Chiguil’s pleadings state a claim for postconviction relief. And
because the meager record in front of us does not affirmatively
show that he is not entitled to relief, yos-Chiguil must receive
an evidentiary hearing.
A ppointment of counSel
[21-23] Finally, we consider whether yos-Chiguil is enti-
tled to appointed counsel on remand. under the nebraska
postconviction Act, it is within the discretion of the trial court
as to whether to appoint counsel to represent the defendant.43
Where the assigned errors in the postconviction petition before
the district court are either procedurally barred or without
merit, establishing that the postconviction proceeding con-
tained no justiciable issue of law or fact, it is not an abuse of
discretion to fail to appoint counsel for an indigent defendant.44
But when the defendant’s petition presents a justiciable issue to
the district court for postconviction determination, an indigent
defendant is entitled to the appointment of counsel.45
As mentioned, we have determined that yos-Chiguil’s plead-
ings are adequate to state a claim for ineffective assistance of
41 Berkey v. U.S., 318 F.3d 768 (7th Cir. 2003).
42 Flores-Ortega, supra note 40, 528 u.s. at 485.
43 Silvers, supra note 15.
44 Id.
45 Id.
632 	281 nEBrAskA rEporTs

counsel. Thus, on remand, he is entitled to have the assistance
of appointed counsel.
ConClusIon
We conclude that we are unable to reach any of yos-Chiguil’s
claims with the exception of his claim that counsel was inef-
fective for not discussing an intoxication defense. We believe
that that claim alleges sufficient facts to warrant an evidentiary
hearing. Finally, yos-Chiguil is entitled to the assistance of
counsel during his hearing.
reverSed And remAnded.
WrigHt, J., not participating.
sTATE v. yos-ChIguIl 	633
Cite as 281 neb. 618
H eAvicAn, C.J., concurring.
I concur with the majority’s decision and reasoning. I
write separately to highlight one important caveat: A defend-
ant seeking postconviction relief after pleading guilty might
receive an evidentiary hearing by alleging in pleadings that
he or she would have insisted on going to trial but for his or
her counsel’s ineffective assistance. But this is merely the first
hurdle. As the u.s. supreme Court recently stated in Premo
v. Moore1:
There are certain differences between inadequate assist-
ance of counsel claims in cases where there was a full
trial on the merits and those . . . where a plea was
entered even before the prosecution decided upon all of
the charges. A trial provides the full written record and
factual background that serve to limit and clarify some of
the choices counsel made. still, hindsight cannot suffice
for relief when counsel’s choices were reasonable and
legitimate based on predictions of how the trial would
proceed. . . .
hindsight and second guesses are also inappropriate,
and often more so, where a plea has been entered without
a full trial or . . . even before the prosecution decided
on the charges. The added uncertainty that results when
there is no extended, formal record and no actual history
1 Premo v. Moore, 562 u.s. 115, 132, 131 s. Ct. 733, 178 l. Ed. 2d 649
(2011).

to show how the charges have played out at trial works
against the party alleging inadequate assistance. Counsel,
too, faced that uncertainty. There is a most substantial
burden on the claimant to show ineffective assistance.
The plea process brings to the criminal justice system a
stability and a certainty that must not be undermined by
the prospect of collateral challenges in cases not only
where witnesses and evidence have disappeared, but also
in cases where witnesses and evidence were not presented
in the first place.
In addition to making sufficient allegations to warrant an
evidentiary 	hearing, 	defendants 	such 	as yos-Chiguil 	must
also bear “the substantial burden” to show that counsel was
ineffective.
634 	281 nEBrAskA rEporTs