State v. Figeroa

State of NebraSka , appellaNt, v. JoaquiN figeroa ,
alSo kNowN aS M ario SaNta M aria , alSo
kNowN aS JoSe aloNzo, appellee .
767 N.W.2d 775
Filed July 10, 2009. 	No. S-08-848.
1. Right to Counsel: Waiver: Appeal and Error. In determining whether a defend-
ant’s waiver of counsel was voluntary, knowing, and intelligent, an appellate
court applies a “clearly erroneous” standard of review.
2. Criminal Law: Judgments: Jurisdiction: Appeal and Error. Absent specific
statutory authorization, the State, as a general rule, has no right to appeal an
adverse ruling in a criminal case.
3. Appeal and Error. The purpose of appellate review pursuant to Neb. Rev. Stat.
§ 29-2315.01 (Reissue 2008) is to provide an authoritative exposition of the law
to serve as precedent in future cases.
4. Double Jeopardy: Juries: Pleas. Jeopardy attaches (1) in a case tried to a jury,
when the jury is impaneled and sworn; (2) when a judge, hearing a case without
a jury, begins to hear the evidence as to the guilt of the defendant; or (3) at the
time the trial court accepts the defendant’s guilty plea.
5. Constitutional Law: Right to Counsel: Waiver. A defendant may waive the
constitutional right to counsel, so long as the waiver is made knowingly, volun-
tarily, and intelligently.
6. Right to Counsel: Waiver. Formal warnings do not have to be given by the trial
court to establish a knowing, voluntary, and intelligent waiver of the right to
counsel. In other words, a formalistic litany is not required to show such a waiver
was knowingly and intelligently made.
7. ____: ____. When considering whether a defendant voluntarily, knowingly, and
intelligently waived his right to counsel, an appellate court reviews the totality of
the circumstances appearing in the record.
8. ____: ____. An appellate court employs a two-step analysis to determine
whether a defendant should be allowed to waive counsel. First, the court con-
siders whether the defendant was competent to waive counsel, and second, it
considers whether the defendant has voluntarily, knowingly, and intelligently
waived counsel.
9. ____: ____. Where a defendant has waived the right to counsel, the dispositive
inquiry is whether the defendant was sufficiently aware of the right to have coun-
sel and of the possible consequences of a decision to proceed without counsel.
Consideration may be given to a defendant’s familiarity with the criminal jus-
tice system.
10. ____: ____. A waiver of counsel need not be prudent, just knowing and
intelligent.
Appeal from the District Court for Dakota County, williaM
biNkard, Judge, on appeal thereto from the County Court for
Dakota County, kurt rager, Judge. Exception sustained.
98 	278 NEbRASkA REpoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

kimberly 	M. 	Watson, 	Dakota 	County 	Attorney, 	for
appellant.
Dennis R. Hurley, of Hurley Law offices, for appellee.
H eavicaN, 	c.J., 	wrigHt, 	coNNolly, 	gerrard, 	StepHaN,
MccorMack, and M iller-lerMaN, JJ.
MccorMack, J.
NATURE oF CASE
Joaquin Figeroa, also known as Mario Santa Maria or Jose
Alonzo, appeared pro se in the county court for Dakota County,
Nebraska, and pled guilty to false reporting and resisting arrest,
both Class I misdemeanors.1 Figeroa was ordered to pay costs
of $44, and he was sentenced to 250 days in county jail for the
false reporting conviction and to 1 year in the Department of
Correctional Services for the resisting arrest conviction, run-
ning consecutively. Figeroa appealed his convictions to the
district court, and the district court reversed. The district court
concluded that the county court had failed to adequately inform
Figeroa of his right to counsel. Accordingly, the district court
remanded the matter to the county court for further proceed-
ings and ordered the county court to strike the guilty plea and
reverse Figeroa’s judgment and sentences. The State brought
this error proceeding pursuant to Neb. Rev. Stat. § 29-2315.01
(Reissue 2008).
bACkGRoUND
Figeroa appeared without counsel at a group arraignment
in the county court for Dakota County and was informed of
his constitutional rights. The court said in relevant part: “You
have the right to an attorney of your own choice at your own
expense. If you cannot afford one, the Court can appoint an
attorney for you at public expense.” After the court completed
the general rights advisory, Figeroa was individually advised of
the nature of his charges and the possible penalties. The court
asked Figeroa if he heard and understood the rights given to the
1 See Neb. Rev. Stat. §§ 28-904 and 28-907 (Reissue 2008).
STATE v. FIGERoA 	99
Cite as 278 Neb. 98

group, and Figeroa said that he heard and understood his rights.
The following conversation took place:
THE CoURT: As for an attorney, do you wish to
request counsel at public expense if you cannot afford
one, hire your own at your own expense, or proceed with-
out one?
[Figeroa]: proceed without one.
THE CoURT: Did anyone promise you anything or
threaten you in any way in order to get you to do that?
[Figeroa]: No, sir.
THE CoURT: Are you currently under the influence of
alcohol or drugs?
[Figeroa]: No, sir.
based on this conversation, the court concluded that Figeroa
knowingly waived his right to counsel and allowed him to pro-
ceed pro se. The record reflected that Figeroa was a convicted
felon and had an extensive criminal history.
Ultimately, Figeroa pled guilty and was sentenced. on
February 13, 2008, Figeroa filed his notice of appeal to the dis-
trict court for Dakota County, asserting as error, among other
things, that he did not knowingly, intelligently, and voluntarily
waive his right to an attorney. Figeroa argued that he was not
adequately informed of his right to counsel, because the court’s
use of the word “can” implied that the court was not required
to appoint counsel, at the State’s expense, even if Figeroa was
unable to afford to secure his own.
The district court for Dakota County, acting as an inter-
mediate appellate court, entered an order reversing Figeroa’s
judgment and sentences, based on Figeroa’s assigned error that
he did not knowingly, voluntarily, and intelligently waive his
right to counsel. The district court concluded that Figeroa was
not informed of his constitutional right to counsel, because
the county court’s statement that “[i]f you cannot afford one,
the Court can appoint an attorney for you at public expense”
was misleading. Accordingly, the district court ordered that the
guilty plea be stricken and that the judgment and sentences
of the county court be reversed, and the matter remanded
for further proceedings. The district court did not make any
determinations 	regarding 	Figeroa’s 	remaining 	assignments
100 	278 NEbRASkA REpoRTS

of error. The State brought this error proceeding pursuant
to § 29-2315.01.
ASSIGNMENT oF ERRoR
The State argues that the district court erred in concluding
that the county court failed to sufficiently advise Figeroa of his
constitutional right to legal counsel at public expense.
STANDARD oF REVIEW
[1] In determining whether a defendant’s waiver of counsel
was voluntary, knowing, and intelligent, an appellate court
applies a “clearly erroneous” standard of review.2
ANALYSIS
[2,3] The State requests that this court reverse the district
court’s order and affirm the county court’s judgment and
sentences. Absent specific statutory authorization, the State,
as a general rule, has no right to appeal an adverse ruling
in a criminal case.3 In the present case, the State appealed
the district court’s decision under § 29-2315.01, which pro-
vides one exception to the general rule. Section 29-2315.01
allows the county attorney to request appellate review of an
adverse decision or ruling in a criminal case in district court
after a final order or judgment in the criminal case has been
entered, but § 29-2315.01 does not allow an appellate court to
review issues upon which no ruling was made.4 The purpose
of appellate review pursuant to § 29-2315.01 is to provide an
authoritative exposition of the law to serve as precedent in
future cases.5
[4] because the State brought this appeal as an error pro-
ceeding, disposition of this case is governed by Neb. Rev. Stat.
§ 29-2316 (Reissue 2008). Section 29-2316 provides:
2 State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007); State v. Gunther,
271 Neb. 874, 716 N.W.2d 691 (2006).
3 State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008).
4 See, State v. Dorcey, 256 Neb. 795, 592 N.W.2d 495 (1999); State v.
Jensen, 226 Neb. 40, 409 N.W.2d 319 (1987).
5 See State v. Hense, supra note 3.
STATE v. FIGERoA 	101
Cite as 278 Neb. 98

The judgment of the court in any action taken pursu-
ant to section 29-2315.01 shall not be reversed nor in
any manner affected when the defendant in the trial court
has been placed legally in jeopardy, but in such cases the
decision of the appellate court shall determine the law
to govern in any similar case which may be pending at
the time the decision is rendered or which may thereaf-
ter arise in the state. When the decision of the appellate
court establishes that the final order of the trial court was
erroneous and the defendant had not been placed legally
in jeopardy prior to the entry of such erroneous order, the
trial court may upon application of the prosecuting attor-
ney issue its warrant for the rearrest of the defendant and
the cause against him or her shall thereupon proceed in
accordance with the law as determined by the decision of
the appellate court.
In State v. Vasquez,6 we held that jeopardy attaches (1) in a
case tried to a jury, when the jury is impaneled and sworn; (2)
when a judge, hearing a case without a jury, begins to hear the
evidence as to the guilt of the defendant; or (3) at the time the
trial court accepts the defendant’s guilty plea.
In the present case, jeopardy attached when the county court
accepted Figeroa’s guilty plea; thus, we are unable, under
§ 29-2316, to reinstate Figeroa’s judgment and sentences,
regardless of the outcome of this case. In other words, our
decision in this error proceeding cannot affect the judgment of
the district court. However, our decision determines the law to
govern in any similar cases now pending or that may subse-
quently arise.
The sole issue presented by the parties in this appeal is
whether 	Figeroa 	knowingly, 	voluntarily, 	and 	intelligently
waived his right to counsel before the county court. The State
argues that Figeroa was sufficiently advised and aware of his
constitutional right to counsel. The State argues that the county
court’s use of the word “can” was appropriate, because the
court is not required to appoint counsel if the defendant has
6 State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006).
102 	278 NEbRASkA REpoRTS

sufficient funds to hire his own. Thus, the State maintains
that Figeroa knowingly and intelligently waived his right to
counsel and exercised his right of self-representation. on the
record before us, we conclude that the county court did not err
in concluding that Figeroa’s waiver of counsel was knowing,
voluntary, and intelligent.
[5,6] A defendant may waive the constitutional right to
counsel, so long as the waiver is made knowingly, voluntarily,
and intelligently.7 We have explained that formal warnings do
not have to be given by the trial court to establish a knowing,
voluntary, and intelligent waiver of the right to counsel.8 In
other words, a formalistic litany is not required to show such a
waiver was knowingly and intelligently made.9
[7-10] Instead, when considering whether a defendant volun-
tarily, knowingly, and intelligently waived his right to counsel,
we review the totality of the circumstances appearing in the
record.10 We employ a two-step analysis to determine whether
a defendant should be allowed to waive counsel. First, we con-
sider whether the defendant was competent to waive counsel,
and second, we consider whether the defendant has voluntarily,
knowingly, and intelligently waived counsel.11 The dispositive
inquiry is whether the defendant was sufficiently aware of the
right to have counsel and of the possible consequences of a
decision to proceed without counsel.12 Consideration may be
given to a defendant’s familiarity with the criminal justice sys-
tem.13 A waiver of counsel need not be prudent, just knowing
and intelligent.14
The district court did not find, and Figeroa does not argue,
that his waiver of counsel was involuntary, nor does he argue
7 See State v. Hessler, supra note 2.
8 See State v. Delgado, 269 Neb. 141, 690 N.W.2d 787 (2005).
9 State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991).
10 See State v. Gunther, supra note 2.
11 See State v. Hessler, supra note 2.
12 State v. Wilson, 252 Neb. 637, 564 N.W.2d 241 (1997).
13 Id.
14 Id.
STATE v. FIGERoA 	103
Cite as 278 Neb. 98

that he was incompetent. The record does not reveal any reason
why the court should doubt Figeroa’s competence to waive
counsel. As such, we conclude that Figeroa was competent to
waive counsel.15
but the district court concluded that Figeroa’s waiver was
not knowing and intelligent, because the county court, by using
the word “can” instead of “will,”
gave [Figeroa] the impression that if the court, in an
expansive manifestation of magnanimity were to feel
like appointing an attorney to represent defendant, or
wanted to do so, or thought that it might be an accept-
able idea to do so, then the court would not be prohibited
from doing so.
Thus, the district court found that Figeroa was not adequately
aware of his right to counsel.
A similar argument was rejected in State v. Fernando-
Granados.16 In that case, the defendant was advised, “‘“[Y]ou
have the right to consult with a lawyer and have a lawyer pres-
ent with you during questioning.”’”17 He was then advised,
“‘[I]f [you do] not have the money to pay for a lawyer the
Court [could, may, can] ha[s] the ability to appoint one.’”18 We
concluded that reading the two warnings together, the defend-
ant was clearly advised of his right to have an attorney present
during questioning. We reasoned, “Although the phrase ‘will
appoint’ was not used, the advisement was nevertheless suf-
ficient to reasonably inform him of his right to an attorney,
and to apprise him that a method, i.e., appointment by the
court, existed for ensuring that an attorney was available to
him.”19 We concluded, “The challenged warning . . . was suf-
ficient to accomplish what the U.S. Supreme Court stated as its
purpose, namely, to prevent a misunderstanding that the right
15 See State v. Hessler, supra note 2.
16 State v. Fernando-Granados, 268 Neb. 290, 682 N.W.2d 266 (2004).
17 Id. at 306, 682 N.W.2d at 279.
18 Id.
19 Id. at 307, 682 N.W.2d at 280.
104 	278 NEbRASkA REpoRTS

to consult a lawyer is conditioned upon having the funds to
obtain one.”20
In the present case, Figeroa was both advised of his right
to counsel and questioned regarding his knowledge of that
right. Specifically, the county court stated, “If you cannot
afford [an attorney], the Court can appoint an attorney for
you at public expense.” Figeroa was later asked if he under-
stood his rights, to which he stated he did. The court again
inquired, “As for an attorney, do you wish to request counsel
at public expense if you cannot afford one, hire your own at
your own expense, or proceed without one?” Not only did
Figeroa’s answers indicate that he was aware of his con-
stitutional right to counsel, but the two admonitions, read
together, made it sufficiently clear that an attorney would be
provided to Figeroa in the event that he was not financially
able to obtain his own.
Read together, the two admonitions, considered in conjunc-
tion with Figeroa’s experience with the criminal justice system,
were sufficient to make Figeroa aware of his constitutional
right to counsel.21 Thus, the county court’s finding that Figeroa
was aware of his constitutional right to counsel and thus vol-
untarily, knowingly, and intelligently waived that right was
not clearly erroneous, and the State’s exception to the district
court’s order has merit and is sustained.
CoNCLUSIoN
Considering the totality of the circumstances, we find no
error in the county court’s warnings and we conclude that the
county court did not clearly err in concluding that Figeroa
knowingly, voluntarily, and intelligently waived his right to
counsel. Thus, the district court erred in not affirming the
county court’s judgment and sentences. The State’s exception
is sustained; however, the limitations of § 29-2316 preclude
this court from reinstating Figeroa’s judgment and sentences,
despite the district court’s error.
exceptioN SuStaiNed.
20 Id. at 307, 682 N.W.2d at 279-80.
21 See State v. Rhines, 548 N.W.2d 415 (S.D. 1996).
STATE v. FIGERoA 	105
Cite as 278 Neb. 98

gerrard, J., concurring in part, and in part dissenting.
I agree with the majority’s conclusion that pursuant to State
v. Fernando-Granados,1 the district court erred in concluding
that Figeroa was not effectively informed of his constitutional
right to counsel. but I disagree with the conclusion that the
county court’s convictions and sentences cannot be reinstated
pursuant to Neb. Rev. Stat. § 29-2316 (Reissue 2008). I rec-
ognize that this court’s decision in State v. Vasquez2 is factu-
ally on point. but I would follow our prior holdings in State
v. Griffin,3 State v. Neiss,4 and State v. Schall5 and reinstate
the county court’s judgment. I respectfully dissent from the
majority’s conclusion to the contrary.
The majority relies on its holding in State v. Hense6 that
whether a defendant “has been placed legally in jeopardy”
within the meaning of § 29-2316 does not depend on double
jeopardy analysis. but for nearly 20 years before that, we
had held—without amendment from the Legislature—that the
Legislature intended for errors to be correctible through error
proceedings consistent with double jeopardy principles.7 And
it is also well established that while a penal statute is given
a strict construction, it should be given a construction which
is sensible and prevents injustice or an absurd consequence.8
We should try to avoid a statutory construction which would
lead to an absurd result.9 The result in this case is unjust
and impractical.
1 State v. Fernando-Granados, 268 Neb. 290, 682 N.W.2d 266 (2004).
2 State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006).
3 State v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005).
4 State v. Neiss, 260 Neb. 691, 619 N.W.2d 222 (2000).
5 State v. Schall, 234 Neb. 101, 449 N.W.2d 225 (1989).
6 State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008).
7 See id. (Gerrard, J., concurring in part, and in part dissenting; Heavican,
C.J., and Stephan, J., join).
8 See State v. Hochstein and Anderson, 262 Neb. 311, 632 N.W.2d 273
(2001).
9 State v. Hamilton, 277 Neb. 593, 763 N.W.2d 731 (2009).
106 	278 NEbRASkA REpoRTS

We have concluded, as a matter of law, that Figeroa was
correctly informed of his rights and knowingly, intelligently,
and voluntarily pled guilty to the offenses with which he
was charged. In other words, Figeroa was convicted and sen-
tenced in a fair and lawful proceeding, yet, under this court’s
interpretation of § 29-2316, we are apparently prohibited
from affirming the result of that proceeding. And the court’s
construction of the prohibition against reversing the district
court’s judgment “when the defendant in the trial court has
been placed legally in jeopardy”10 results in the defendant
in this case facing more jeopardy. prosecutorial and judicial
resources will be wasted providing Figeroa with a new trial
to which he is not entitled—in order to “protect” his right to
be free from being tried twice for the same offense. This does
not make sense.
As I explained in my dissenting opinion in Hense, I believe
that § 29-2316 incorporates double jeopardy principles11 and
permits reversal of the district court’s judgment where double
jeopardy would not preclude it.12 That reading of § 29-2316
is even more sensible where, as here, the district court is act-
ing as an intermediate appellate court, and the only effect of
reversing the district court’s judgment is to affirm the valid
convictions and sentences. It is well established that under the
Double Jeopardy Clause, an appellate court’s order reversing
a conviction is subject to further review.13 And that was pre-
cisely the conclusion we reached under § 29-2316 in Griffin
and Schall.14
I recognize how this court’s decisions in Hense and Vasquez
might command the majority’s disposition of this case. but
I see little in § 29-2316 to compel the conclusion that the
10 See § 29-2316.
11 See, U.S. Const. amend. V; Neb. Const. art. I, § 12.
12 Hense, supra note 6 (Gerrard, J., concurring in part, and in part dissenting;
Heavican, C.J., and Stephan, J., join). See, also, Neiss, supra note 4.
13 See, Smith v. Massachusetts, 543 U.S. 462, 125 S. Ct. 1129, 160 L. Ed. 2d
914 (2005); United States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013, 43 L.
Ed. 2d 232 (1975).
14 See, Griffin, supra note 3; Schall, supra note 5.
STATE v. FIGERoA 	107
Cite as 278 Neb. 98

Legislature intended to insulate the decisions of the district
court, sitting as an intermediate appellate court, from further
appellate review. Under this court’s construction of the stat-
ute, a district court’s reversal of a lower court’s judgment has
become “‘tantamount to a verdict of acquittal at the hands
of the jury, not subject to review.’”15 That is almost precisely
what § 29-2316 was meant to preclude—not what it is meant
to accomplish.
And I worry about what is coming next. In this case, the
only result—so far—is an unnecessary trial. In previous cases,
defendants have received the benefit of lesser convictions or
sentences than they might have deserved.16 but more is sure
to come, and the court’s current construction of § 29-2316
would leave us powerless to effectively correct more serious
errors. In the present case, the proverbial chickens the court
hatched in Hense have come home to roost. Wolves are sure
to follow.
It is my hope that this court corrects course before more
unintended mischief happens. We recently stated that “remain-
ing true to an intrinsically sounder doctrine better serves the
values of stare decisis than following a more recently decided
case inconsistent with the decisions that came before it.”17
Returning to the sound doctrine of Griffin, Neiss, and Schall
would serve us well. And failing that, the Legislature could
amend the statutes relating to prosecutorial appeals, as the U.S.
Congress has, to authorize the State to appeal whenever con-
stitutionally permissible.18 otherwise, I fear a serious miscar-
riage of justice will occur that we will be powerless to undo. I
respectfully dissent from the court’s ultimate disposition.
H eavicaN, C.J., and StepHaN, J., join in this concurrence
and dissent.
15 Wilson, supra note 13, 420 U.S. at 345.
16 See, State v. Head, 276 Neb. 354, 754 N.W.2d 612 (2008); Hense, supra
note 6; Vasquez, supra note 2. See, also, State v. Stafford, post p. 109, 767
N.W.2d 507 (2009).
17 State v. Hausmann, 277 Neb. 819, 828, 765 N.W.2d 219, 226 (2009), cit-
ing Mayhew v. Mayhew, 205 W. Va. 490, 519 S.E.2d 188 (1999).
18 See, 18 U.S.C. § 3731 (2006); Wilson, supra note 13.
108 	278 NEbRASkA REpoRTS