State v. Ramirez

STATE v. RAMIREZ 	697
Cite as 284 Neb. 697
Equal Protection Clause of the Nebraska Constitution. Without
addressing the merits of Melissa’s equal protection challenge,
we find the constitutional question is not properly before
this court.
[9] As we did in Givens v. Anchor Packing,14 we refuse to
address the merits of the constitutional challenge raised by
Melissa. Section 24-219, which grants this court the authority
to answer certified questions, limits our answers to questions of
law which are certified.15 There was no constitutional question
within the question certified to us by the U.S. District Court.
For this reason, we will not substantively address Melissa’s
constitutional challenge.
CONCLUSION
The answer to the certified question is no, a child conceived
after her biological father’s death through intrauterine insemi-
nation using the father’s sperm and born within 9 months of
his death cannot inherit from the father as his surviving issue
under Nebraska intestacy law. Further, Melissa’s constitutional
challenge is not properly before this court and therefore cannot
be substantively answered.
Judgment entered.
Wright, J., not participating.
14 Givens v. Anchor Packing, 237 Neb. 565, 466 N.W.2d 771 (1991).
15 See id.
State of nebraSka, appellee, v.
arevalo ramirez, appellant.
823 N.W.2d 193
Filed November 16, 2012. 	No. S-12-178.
1. Effectiveness of Counsel: Records: Appeal and Error. The fact that an inef-
fective assistance of counsel claim is raised on direct appeal does not necessarily
mean that it can be resolved. The determining factor is whether the record is suf-
ficient to adequately review the question.
2. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective
assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing.
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698 	284 NEBRASKA REPORTS
3. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion by the
trial court.
4. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial counsel
is different from his or her counsel on direct appeal, the defendant must raise on
direct appeal any issue of trial counsel’s ineffective performance which is known
to the defendant or is apparent from the record. Otherwise, the issue will be pro-
cedurally barred.
5. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and
(8) the amount of violence involved in the commission of the crime.
6. ____. In imposing a sentence, the sentencing court is not limited to any math-
ematically applied set of factors.
7. ____. The appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the defendant’s life.
Appeal from the District Court for Douglas County: gregory
m. S chatz, Judge. Affirmed.
Sean M. Conway, of Dornan, Lustgarten & Troia, P.C.,
L.L.O., for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
heavican, c.J., Wright, connolly, Stephan, mccormack,
miller‑lerman, and caSSel, JJ.
Wright, J.
NATURE OF CASE
Arevalo Ramirez pled no contest to first degree sexual
assault. He was sentenced to 25 to 30 years’ imprisonment
with credit for 224 days served. The two issues presented
for review in this appeal are whether Ramirez’ trial coun-
sel was ineffective and whether Ramirez received an exces-
sive sentence.
SCOPE OF REVIEW
[1] The fact that an ineffective assistance of counsel claim
is raised on direct appeal does not necessarily mean that it can
be resolved. The determining factor is whether the record is

STATE v. RAMIREZ 	699
Cite as 284 Neb. 697
sufficient to adequately review the question. State v. Sidzyik,
281 Neb. 305, 795 N.W.2d 281 (2011).
[2] An ineffective assistance of counsel claim will not be
addressed on direct appeal if it requires an evidentiary hearing.
State v. Freemont, ante p. 179, 817 N.W.2d 277 (2012).
[3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Bauldwin, 283 Neb. 678, 811 N.W.2d
267 (2012).
FACTS
On July 11, 2011, Ramirez was charged by information in
Douglas County District Court with one count of first degree
sexual assault, a Class II felony, and one count of first degree
false imprisonment, a Class IIIA felony. On November 21, he
pled no contest to the first degree sexual assault charge and the
remaining charge was dismissed by the State.
As a factual basis for the plea, the State advised the district
court that on June 22, 2011, Ramirez agreed to pick up the
victim, J.F., and give her a ride home. Rather than driving J.F.
home, Ramirez drove to a park and sexually assaulted J.F. in
the back seat of his vehicle. J.F. later escaped.
In announcing Ramirez’ sentence on January 31, 2012, the
district court noted that J.F. was Ramirez’ niece, that she was
16 years old at the time of the crime, and that according to
the presentence investigation report, Ramirez also had sexual
contact with J.F. when she was 13 years old. Ramirez was
sentenced to 25 to 30 years’ imprisonment with credit for 224
days served. He was also required to register under Nebraska’s
Sex Offender Registration Act, Neb. Rev. Stat. §§ 29-4001 to
29-4014 (Reissue 2008 & Cum. Supp. 2012).
At sentencing, the district court inquired as to Ramirez’
citizenship status. Defense counsel replied: “Judge, he is a
legal permanent resident. However, with the conviction of such
a serious felony, it will be at the discretion of Immigration
whether or not to proceed with removal once he’s done with
his sentence. And normally on a case like this they would
do that.”
Ramirez timely filed his notice of appeal on February 29,
2012. The State moved for summary affirmance on May 23,

700 	284 NEBRASKA REPORTS
but the motion was overruled. This court moved the case
to its docket pursuant to our authority to regulate the dock-
ets of the appellate courts of this state. See Neb. Rev. Stat.
§ 24-1106(3) (Reissue 2008). Pursuant to Neb. Ct. R. App. P.
§ 2-111(E)(5)(a) (rev. 2008), the case was submitted without
oral argument.
ASSIGNMENTS OF ERROR
Ramirez assigns as error that he received ineffective assist-
ance of counsel and that his sentence is excessive.
ANALYSIS
ineffective aSSiStance
of counSel
In this appeal, Ramirez contends that his trial counsel
was ineffective in failing to inform him prior to his plea
that a sexual assault conviction would result in mandatory
deportation.
[4] Ramirez is represented by different counsel on appeal
than he was in the district court. When a defendant’s trial coun-
sel is different from his or her counsel on direct appeal, the
defendant must raise on direct appeal any issue of trial coun-
sel’s ineffective performance which is known to the defend-
ant or is apparent from the record. Otherwise, the issue will
be procedurally barred. State v. Molina, 279 Neb. 405, 778
N.W.2d 713 (2010). Therefore, as he has done, Ramirez was
required to raise his ineffective assistance of counsel claim on
direct appeal.
The fact that an ineffective assistance of counsel claim is
raised on direct appeal does not necessarily mean that it can be
resolved. The determining factor is whether the record is suf-
ficient to adequately review the question. State v. Sidzyik, 281
Neb. 305, 795 N.W.2d 281 (2011). An ineffective assistance
of counsel claim will not be addressed on direct appeal if it
requires an evidentiary hearing. State v. Freemont, ante p. 179,
817 N.W.2d 277 (2012).
The evidence in the record of defense counsel’s alleged
ineffectiveness is a statement by counsel to the district court:
“Judge, he is a legal permanent resident. However, with the

STATE v. RAMIREZ 	701
Cite as 284 Neb. 697
conviction of such a serious felony, it will be at the discretion
of Immigration whether or not to proceed with removal once
he’s done with his sentence. And normally on a case like this
they would do that.” This statement was made at the sentenc-
ing hearing, after Ramirez’ plea had been entered. Thus, it is
not possible to evaluate whether defense counsel was ineffec-
tive, because the record contains insufficient evidence of what
defense counsel told Ramirez before the plea was entered.
Because the record is insufficient to address this assignment of
error, we decline to address it on direct appeal. See, id.; State
v. Sidzyik, supra.
exceSSive Sentence
[5] Ramirez argues that the district court did not properly
consider all the sentencing factors set forth in State v. Timmens,
263 Neb. 622, 641 N.W.2d 383 (2002). These factors were
reiterated in State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267
(2012). When imposing a sentence, a sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense,
and (8) the amount of violence involved in the commission of
the crime. Id.
[6,7] In imposing a sentence, the sentencing court is not
limited to any mathematically applied set of factors. Id. The
appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life. Id. An appellate court
will not disturb a sentence imposed within the statutory limits
absent an abuse of discretion by the trial court. Id.
Ramirez was found guilty of a Class II felony, which carries
a sentence of 1 to 50 years’ imprisonment. See Neb. Rev. Stat.
§ 28-105(1) (Cum. Supp. 2012). He was sentenced to 25 to 30
years’ imprisonment. Ramirez’ sentence falls well within the
statutory range. As such, we review the district court’s deci-
sion for an abuse of discretion. See State v. Bauldwin, supra.
An abuse of discretion occurs when a trial court’s decision is

702 	284 NEBRASKA REPORTS
based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. Id.
In announcing Ramirez’ sentence, the district court noted
that the victim was Ramirez’ niece and that she was 16 years
old when the crime occurred. The court further noted that the
presentence investigation report indicated Ramirez also had
sexual contact with J.F. when she was 13. The court agreed
with a probation officer’s assessment that Ramirez was a
high-risk candidate for community supervision and that a sub-
stantial sentence was required.
The presentence investigation report contains several eval-
uation scores. Ramirez scored in the “very high risk” range for
“procriminal attitude/orientation” and in the “high risk” range
for “leisure/recreation.” Additionally, the presentence inves-
tigation report indicated that Ramirez was at a high risk for
rearrest. It also included a victim impact statement addressing
the fears and changed family relationships J.F. has experienced
as a result of the incident.
In State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007),
the defendant, who was convicted of first degree sexual assault
on a child and incest, alleged he received excessive sentences.
He claimed the trial court failed to properly consider that he
had no sexual offenses on his record and that a test indicated
he did not have an established pattern of sexual interest in
children. This court noted that the defendant had a propensity
for violence and that he inflicted pain and fear on his victim.
We further noted that “[s]exual assault on a child is a serious
and deplorable crime, and the injury that results from this type
of assault is well established.” Id. at 646, 733 N.W.2d at 539.
This court concluded that the defendant’s concurrent sentences
of 25 to 30 years in prison for first degree sexual assault on a
child and 10 to 20 years in prison for incest were not an abuse
of discretion.
Ramirez sexually assaulted his 16-year-old niece. This was
a serious and deplorable crime, see id., and the sentence
Ramirez received was well within the statutory range. We can-
not say that the district court abused its discretion in imposing
this sentence.

STATE v. RAMIREZ 	703
Cite as 284 Neb. 697
CONCLUSION
The record is insufficient to review on direct appeal Ramirez’
claim of ineffective assistance of counsel, and accordingly, we
decline to address it. The district court did not abuse its discre-
tion in sentencing Ramirez to 25 to 30 years’ imprisonment for
first degree sexual assault. The judgment of the district court
is affirmed.
affirmed.