State v. Pineda-Paz - Attempted Murder Conviction Affirmed

IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL (Memorandum Web Opinion) S TATE V. P INEDA -P AZ NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E). S TATE OF N EBRASKA, APPELLEE, V. H ERMES J. P INEDA -P AZ, APPELLANT. Filed February 24, 2026. No. A-25-497. Appeal from the District Court for Hall County: A NDREW C. B UTLER, Judge. Affirmed. Robert W. Alexander, of Dowding, Dowding & Dowding, for appellant. Michael T. Hilgers, Attorney General, and Jacob M. Waggoner for appellee. R IEDMANN, Chief Judge, and M OORE and B ISHOP, Judges. B ISHOP, Judge. INTRODUCTION Hermes J. Pineda-Paz pled guilty to attempted first degree murde r and atte mpted use of a deadly weapon to commit a felony. The Hall County District Court sentenced him to concurrent terms of incarceration. P ineda-Paz appeals, claiming that the district court imposed an excessive sentence and that his trial counsel was ineffective. We affirm. BACKGROUND On January 18, 2019, the State filed an information charging Pineda-Paz with four counts: count I, attempted first degree murder, a Class II fe lony, pursuant to Neb. R ev. Stat. §§ 28-201 and 28-303 (Reissue 2016); count III, first degree a ssault, a Class I I felony, pursuant to Neb. Rev. Stat. § 28-308 (Reissue 2016); and counts II and IV, use of a de adly weapon to commit a felony, a Class II felony, pursuant to Neb. Rev. Stat. § 28-1205 (Reissue 2016).

On November 21, 2019, a plea he aring was held. Pineda -Paz appeared with counsel and was aided by a certified court int erpreter. Pursuant to a plea agreement, the State amended the information by interlineation (la ter filed November 22), reducing the cha rge in count II to attempted use of a deadl y weapon to commit a felony, a Class IIA felony, pursuant to §§ 28-201 and 28-1205. Pineda-Paz then pled guil ty to count I (attempted fi rst degree murder) and count II (attempted use of a de adly w eapon to commit a felony), and the State moved to dismiss the remaining counts. The State provided the following factual ba sis for the plea: On October 6, 2018, officers with the Grand I sland Police De partment were dispatched to a re sidence located in Grand I sland, Hall County, Nebraska. Offic ers arrived at that location and observed the defendant, Hermes Pineda-Paz. At some point they determined that he was 17 years of age. As the officers approached him, Mr. Pineda-Paz said, “ I just killed someone. Take me to jail. ” Officers entered the residence and observed the vi ctim, Jorge Castaneda Or dones, lying down. They observed that he had several large deep la cerations on his head and face. The lacerations were de ep enough that the brain matter was exposed. He was bleeding profusely. The officers noted that he was still alive. Mr. Castaneda was transported to the hospital. Medical professionals performe d a craniotomy. They also indic ated Mr. Castaneda had a n orbita l frac ture, a nd they also noted five de ep lacerations on his head and face. [Pineda-Paz ’ ] mot her was present. S he told the of ficers that her son,... Pineda- Paz, had called her whe n she was out of the home and told her that he ha d killed Jorge, th at he had kil led him and s tabbed him. She called several people, whi ch led to the police arriving at the residence along with herself. She also advised the off icers there had been an incident about a week earlier where she ’ d encountered her son, [Pineda-Paz], with a knife, and [he] indica ted that he wanted to kill Jorge. She told th e officers she had calmed him down on that date. Officers also were able to re cover two machetes at the residence, one of whic h had been used to strike the victim in this case. All those events occurred in Hall County, Nebraska, on that date. The district court accepte d Pineda-Paz ’ plea and found him guilty of count I (attempted first degree murder) and count II (a ttempted use of a deadly weapon to commit a felony). The cou rt dismissed, with prejudice, the remaining counts, and the case was set for sentencing. At the sentencing hearing on January 27, 2020, the district court sentenced Pineda -Paz to concurrent sentenc es of 36 to 40 years ’ imprisonment for attempted first degree murder, and 10 to 12 years ’ imprisonment for attempted use of a de adly weapon to commit a felony. He was given 479 days ’ credit for time already served. No direct appeal was filed at that time. In 2022, Pineda-Paz filed a pro se motion for postconviction relief. The motion for postconviction relief was subsequently amended after current counsel was appointed to represent Pineda-Paz. After an evid entiary hearing in March 2025, the district court entered an orde r on June 6, 2025, granting Pineda-Paz ’ amended motion for postconviction relief, in part. The court found that P ineda-Paz ’ trial counsel was ineffective for failing to file a direct appeal, and it restored his

right to direct appeal. The court o rdered that current couns el would r emain as court -appointed counsel for the pende ncy of Pineda-Paz ’ direct appeal. The court stated it was not considering the remaining claims in the amended motion for postconviction relief and was “ essentially dismissing the remaining claims at this time. ” Pineda-Paz timely filed this new direc t appeal. ASSIGNMENTS OF ERROR Pineda-Paz assigns that (1) his sentence was excessive, and (2) his “ Sixth Amendment rights were violated because he did not receive effective assistance of counsel. ” STANDARD OF REVIEW An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by th e trial court. State v. Hagens, 320 Neb. 65, 26 N.W.3d 174 (2025). An abuse of discr etion occurs when a tria l court ’ s decision is based upon rea sons that are untenable or unreasonable or if its action is clearly against justice or c onscience, reason, and evidence. Id. Whether a claim of ine ffective assistance of trial counsel may b e determined on direc t appeal is a question of l aw. In reviewing claims of ineffective assistance of counse l on direct appeal, an appellate court decides only whether th e undisputed facts con tained within the record are sufficient to conclusively determine whether co unsel did or did not provide effective assistance and whether the defendant was or was no t prejudiced by counsel ’ s alleged deficient performance. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). ANALYSIS E XCESSIVE S ENTENCE Pineda-Paz wa s convicted of one count of attempted first degre e murder, a Class II felony, punishable by 1 to 50 ye ars ’ imprisonment. See Neb. Rev. Stat. § 28 -105 (Cum. S upp. 2024). H e was senten ced to 36 to 4 0 ye ars ’ imprisonment. Pineda-Paz was also convicted of one count of attempted use of a d eadly weapon to commit a felony, a Class IIA felony, punishable by up to 20 years ’ imprisonment. See § 28-105. He w as sentenced to 10 to 12 years ’ imprisonment. His sentences were within the statutory range. As such, we review the distr ict court ’ s senten cing determination only for an abuse of discretion. See State v. Sutton, 319 Neb. 581, 24 N.W.3d 43 (2025) (where a sentence imposed within statutory limits is alleged to be excessive, appellate court must determine wheth er sentencing court abused its discretion in considering and applying the relevant factors, as well as any applicable lega l principles in determining sentence to be imposed.) In determining a sentence to b e imposed, relevant factors customarily considered and applied are 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 violen ce involved in the commission of the crime. Id. The appropriateness of a sentence is necessarily a subjective judgment a nd includes the sentenc ing judge ’ s observation of the defendant ’ s demeanor and attitude and all the facts and circ umstances surrounding the defendant ’ s life. Id. Pineda-Paz committed the current offense 1½ mo nths before he turned 18 years old, and he was 19 years old a t the time of s entencing. According to the p resentence investigation report

(PSR), he grew up in Hondur as and c ame to the United States as a tee nager. He had completed the 11th grade, and he was a senior in high school at the time of this offense. Pineda -Paz was living with his mother and his siblings at the time of his arrest. He described his mother as “ a hard-working woman who worked a lot to provide for her children, ” but he “ acknowledge[d] h er need to work so many hours left him and his siblings unattended fre quently. ” Pineda-Paz ’ “ time and attention were consumed with substance abuse ” in the time leading up to his arre st. The victim in this case had be en staying at Pineda-Paz ’ home. According to police reports in the PSR, Pineda-Paz ’ mother s aid that the victim was her niec e ’ s boyfriend, and he needed a place to stay (h er niec e lived in Honduras). Pineda-Paz ’ mother also said that Pineda-Paz told her that the victim would not “ leave [him] alone or give [him] space. ” Pineda-Paz reported th at he had one prior offense, driving during suspension, for which he received a fine. How ever, the probation officer could not find evidence of that offense in his record. The probation officer noted that the current offense was all that appeared i n Pineda -Paz ’ record. However, “ [h]e has had r easonably extensive incidents reported [in jail] that included destruction of jail property, spitting at officers, harm to self, and conflict with other in mates. ” As part of the presentence investigation, a “ Level of Service/Case Manage ment Inventory ” (LS/CMI) was conducted, and Pineda-Paz was assessed a t an overall “ [h] igh ” risk to reoffend. He scored in the “ [v]ery [h]igh ” risk range in the criminogenic risk fa ctor domain for alcohol/drug problem. He scored in the “ [h]igh ” risk range in the domains for leisure/recreation, companions, and procriminal attitude/orientation. He scored in the “ [m]edium ” risk range in the domains for education/employment, family/marital, and antisocial pattern. And he scored in the “ [v]ery [l]ow ” risk range in the domain for criminal history. At the sentencing hearing, Pineda-Paz ’ counsel stated that “ at the time of this occurrence, ” Pineda-Paz was “ a minor and was dealing with identification issues, not only because he was an immigrant here learning English, ” but he “ was dealing with his sexuality as well. ” “ I believ e the police reports say they ’ d been watching gang videos from Honduras on Yo uTube, gang videos of how they treat homosexuals in prison, ” and “ [m]y client snapped. ” Pine da-Paz “ made a very irrational decision that day. ” Counsel argued that P ineda-Paz “ had no violence in his record, ” “ [b]ut what he has had is a hard time admitting his sexuality in a community where, honestly, it ’ s not as accepting ” and “ h e was scared. ” Couns el stated, “ [Pineda-Paz] con veyed with me that he was... remorseful ” and “ to tell the Court and to tell [the victim] how sorry he is for what happened and the pain that he ’ s caused his family. ” Coun sel requested that Pineda-Paz ’ sentences run concurrently. Pineda-Paz personally stated, “ I ’ m sorry for what I did. ” The S tate argued that Pineda-Paz “ struck the victim in the head multiple times with a machete causing massive injuries to his skull and brain. ” “ There was also information unraveled during the investigation that [Pineda-Paz] had come to his mother ’ s room and had told her about a week before the incident that he was going to stab the victim a nd kill the victim, ” but the mother “ indicated that she was able to calm [Pined a-Paz] down, and nothing happened on that particular date. ” On the date of the machete in cident, “ when the police arrived [Pined a-Paz] told them he ’ d just killed someone, so at that point he thought he ’ d actually murdered th e victim in this ca se ”; officers “ indicated [Pine da-Paz] w as calm, collected, didn ’ t a ppear to have any signs of concern or remorse, and was unfazed. ” The victim “ suffere d a serious brain injury ” and “ [h]e ’ s no longer

able to care for himself ” -- he cannot wa lk, requires assistance with daily activities, and has problems with his mem ory. The victim was still receiving ongoing medical care and there a re potential additional surgeries. “ He ’ s extremely lucky to be alive. ” The State was concerned about “ why this happened, ” and it said that “ the only thing [it] could derive from reading all of the police reports and the presentence investigation mat erial was that the victim was bothering him. ” After going through the criminogenic risk factor domains in the PSR, the State asked the dist rict court to consider imposing consecutive sentences. The district court went through the various sente ncing factors. Th e court stated that in reviewing the PS R, it w as able to read the police reports, see pictures of the scene, and see the picture of “ the violent injuries that were inflicted ” on the victim. The court also stated th at it had reviewed the letters se nt by Pineda-Paz ’ family and friends. The court said t hat “ this was a violent crime ” and Pineda-Paz ’ “ actions were not provoked by the victim ”; “ [t]here is no re ason to excuse or justify this offense. ” It then sentenced Pineda-Paz as set forth previously. On appea l, Pineda-Paz contends, “ The sentence, although within the statutorily authorized range, nonetheless constituted an abuse of discretion by the District Court because it failed to properly balance the relevant sentencing factors. ” Brief for appellant at 9. He a rgues that “ almost every individual criteria weighed in favor of mitigation. ” Id. at 10. In partic ular, he notes his young age (and the relative lack of brain development among tee nagers), persona l hardships, and that the victim had allegedly “ threatened to commit violent acts against him [and] his mom failed to help him. ” Id. at 13. The State contends that the district court relied on the appropriate sentencing factors and the P SR. It argues that Pineda-Paz essentially invi tes this court “ to substitute its judgment of an appropriate sentence for that of the district court. ” Brief for appellee at 9. Pineda-Paz ’ sentence s are within the statutory ra nge, and we c annot say that the district court abused it s discretion in the se ntences imposed. S ee State v. Ri vera-Meister, 318 Neb. 164, 14 N.W.3d 1 (2024) (no abuse of discretion in sentenc e imposed when r eview of record shows sentencing court considered relevant sentencing factors and did not consider any inappropriate factors). I NEFFECTIVE A SSISTANCE OF C OUNSEL Pineda-Paz ’ appellate counsel is different from his trial counsel. Wh en a d efendant ’ s trial counsel is different from his or he r 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 fr om the re cor d; otherwise, the iss ue will be procedurally barred in a subsequent postconviction proceeding. State v. Kruger, 320 Neb. 361, 27 N.W.3d 398 (2025). On direct appeal in a criminal case, claims of ineffective assistance of counsel must be both specifically assigned and specifically argued in the appellant ’ s brief. Id. Pineda-Paz assigns as error that his “ Sixth Amendment rights we re violated because he did not receive e ffective as sistance of counsel. ” Br ief for appellant at 5. He argues but did not specifically assign that trial counsel was ineffective because counsel fail ed to investigate and advise him (1) on a self-defense claim and (2) “ of a possible insanity defense adequately and to get an evaluation conducted. ” Id. at 16. He also argues but did not specifically assign that trial counsel ’ s representation of him “ violated Neb. Re v. Ct. R. of Prof. C ond. § 3 -501.8(f) ” (conflict of interest; compensation for representing a client). Brief for a ppellant at 18.

Assignments of error on direct appeal re garding ineffec tive assistance of trial c ounsel must specifically allege the co nduct that is claimed to constitute deficient performance. State v. Kruger, supra. A generalized and vague assignment of err or that does not advise an appellate court of the issue submitted for decisi on will not be considered. Id. An assignment is specific when it addresses a spe cific issue that does not require additional information to understa nd precisely what the assignment attacks. Id. See, also, State v. Mrza, 302 Neb. 931, 935, 926 N.W.2d 79, 86 (2019) (holding that “ assignments of error on direct appeal regarding ineffective assistance o f trial counsel must spec ifically allege defic ient performance, and a n appellate court will not scour the remainder of the brief in se arch of such specificity ”), disapproved on other grounds, State v. Hagens, 320 Neb. 65, 26 N.W.3d 174 (2025). An ineffective assistance of counsel claim is ra ised on direct appeal when the c laim a lleges deficient performance with enough particularity for (1) an appellate c ourt to make a de termination of whether the claim can be decided upon the trial record and (2) a district c ourt later reviewing a petition for postconviction relief to recognize wh ether the claim was broug ht before the appellate court. State v. German, 3 16 Neb. 841, 7 N.W.3d 206 (2024). When a claim of ineffective assistance of counsel is raised in a direct app eal, the appellant is not required to allege prejudice; however, an appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel. Id. Pineda-Paz ’ assignment of error only generally alleged that “ he did not receive effective assistance of counsel. ” Brief for appellant at 5. There is no specific a llegation of deficient performance set forth in the assigned error. Therefore, ev en though Pineda -Paz more particularly describes the alleged deficiencies in the argument section of his brief, his fa ilure to allege such deficiencies in the “ Assignments of Error ” section of his brief does not meet the requirement established by Mrza, supra. Pineda-Paz suggests that based on past Nebraska Supreme Court cases, the “ appellate courts prioritize substanc e and cla rity over rigid f ormalism, ” reply brie f for appellant at 11, and that Mrza, supra, “ established the spec ificity rule to address ambiguit y -- not to punis h clarity. ” Reply brief for appellant at 8. Although we understand Pineda-Paz ’ frustration on this issue, we do not read Mrza, supra, to allow us the flexibility he seeks. We therefore do not consider his assignment of err or alleging ineffective assistance of trial counsel. See, State v. Rupp, 320 Neb. 502, 28 N.W.3d 74 (2025) (assignment of error must, standing alone, permit appellate court to determine if c laim can be de cided upon trial record a nd also permit district court to later recognize that claim was raised on direct appeal; this requires description of specific conduct allege d to constitute deficient performance); State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020) (ineffective assistance of counsel claim not considered whe n assigned e rror did not specify counsel ’ s deficient performance, even thoug h argument section of br ief discussed c laims in detail), disap proved on other grounds, State v. Hagens, supra. CONCLUSION For the reasons stated above, we find that the district court did not abuse its discretion in sentencing Pineda-Paz. A FFIRMED.