State v. Uwanaka

433 N.W.2d 540 (1989)

230 Neb. 808

STATE of Nebraska, Appellee, v. Gabriel H. UWANAKA, Appellant.

No. 87-887.

Supreme Court of Nebraska.

January 6, 1989.

Alan H. Kirshen, of Kirshen & Kratville, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Jill Gradwohl Schroeder, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ.

SHANAHAN, Justice.

In its five-count complaint filed in the county court for Sarpy County, the State charged Gabriel H. Uwanaka with driving while intoxicated (DWI), see Neb.Rev.Stat. § 39-669.07 (Supp.1987), driving under suspension, false reporting, speeding, and operating an improperly registered auto. Pursuant to a plea agreement, Uwanaka pled no contest to the DWI charge in exchange for the State's dismissal of the other four counts. The court sentenced Uwanaka to 30 days in jail, fined him $500, and suspended his driver's license for a period of 6 months. On appeal, the district court affirmed Uwanaka's conviction and sentence. Uwanaka claims that (1) he was denied effective assistance of counsel and (2) his plea of no contest was "fatally tainted."

Uwanaka asserts that his trial counsel simply "went through the motions" in handling the case in county court. The record shows that Uwanaka's lawyer secured dismissal *541 of four counts of the complaint in exchange for a plea of no contest to the DWI charge. The factual basis, given and accepted in conjunction with Uwanaka's no-contest plea, discloses that Uwanaka failed a number of field sobriety tests administered by the arresting officer, exuded the odor of alcohol and displayed bloodshot eyes at the time of his arrest, and had a blood alcohol level of .108 percent according to an Intoxilyzer test. Nevertheless, Uwanaka contends his lawyer failed to investigate circumstances surrounding Uwanaka's arrest, the blood alcohol test, and possible defenses, namely, "one of the three medications which Defendant was taking, Triavil, will potentiate the action of central nervous system depressants, enhancing the response to alcohol and barbituates [sic] and that another, Fiorinal, is a barbituate [sic]." We note that § 39-669.07 provides in part: "It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle: (1) While under the influence of alcoholic liquor or of any drug...."

As this court expressed in State v. Hawthorne, 230 Neb. 343, 347, 431 N.W.2d 630, 633 (1988):

[A]ccording to the test adopted in Strickland v. Washington, [466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], to sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U.S. Constitution and thereby obtain reversal of a defendant's conviction, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.

In our review of the record, we have been unable to locate a factual basis even remotely related to Uwanaka's claim of ineffective assistance of counsel in relation to his lawyer's alleged lack of investigation or diligent presentation of an available defense. To sustain a claim of ineffective assistance of counsel, the defendant has the burden to present a record which shows counsel's deficient performance in representing the defendant. Uwanaka has failed to meet his burden to show that "counsel's performance was deficient." State v. Hawthorne, supra 230 Neb. at 347, 431 N.W.2d at 633.

Uwanaka's claim that his plea was "fatally tainted" is meritless. The county court fully informed Uwanaka concerning an accused's rights and the consequences of a plea of guilty or nolo contendere. See State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986). Uwanaka waived rights accorded under Irish, supra, and entered his valid nolo contendere plea. Therefore, we affirm the judgment of conviction.

AFFIRMED.