State v. Warner
| Decision Date | 29 July 2022 |
| Docket Number | S-21-733 |
| Citation | 312 Neb. 116 |
| Parties | State of Nebraska, appellee, v. Paul B. Warner, appellant. |
| Court | Nebraska Supreme Court |
1. Pleas: Appeal and Error. An appellate court will not disturb the trial court's ruling on a presentencing motion to withdraw a guilty or no contest plea absent an abuse of discretion.
2. Effectiveness of Counsel: Constitutional Law: Statutes Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement.
3. Effectiveness of Counsel: Appeal and Error. In reviewing a claim of ineffective assistance of trial counsel on direct appeal, an appellate court determines as a matter of law whether the record conclusively shows that (1) a defense counsel's performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel's alleged deficient performance.
4. Pleas. When a defendant moves to withdraw his or her plea before sentencing, a court, in its discretion, may sustain the motion for any fair and just reason, provided that such withdrawal would not substantially prejudice the prosecution.
5. Pleas: Proof. A defendant moving to withdraw his or her plea before sentencing has the burden to show the grounds for withdrawal by clear and convincing evidence.
6. Pleas. A defendant's change of mind alone is not a fair and just reason to withdraw a guilty or no contest plea.
7. Effectiveness of Counsel: Postconviction: Records: 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 procedurally barred in a subsequent postconviction proceeding.
8. Effectiveness of Counsel: Records: Appeal and Error. 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 sufficient to adequately review the question.
Appeal from the District Court for Cass County: Michael A. Smith Judge. Affirmed.
William F. Eustice for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
On an evening in January 2020, Paul B. Warner physically attacked his wife, his son, and a friend. When law enforcement officers arrived at the scene, Warner fired a gun at them. Based on these incidents, the State charged Warner with 29 separate felonies. Although Warner obtained an opinion from a forensic psychiatrist that he was temporarily insane during the events at issue, Warner and the State entered into a plea agreement in which Warner agreed to plead guilty or no contest to six felony charges and the State agreed to dismiss all remaining charges. After the district court accepted Warner's no contest pleas to the agreed-upon charges, however, Warner filed a motion to withdraw his pleas. The district court overruled Warner's motion and sentenced him accordingly. Warner now appeals, primarily arguing that the district court should have permitted him to withdraw his pleas. He also contends that his trial counsel was ineffective in providing advice regarding the plea agreement. We find no error on the part of the district court and conclude that we are unable to review Warner's ineffective assistance of counsel claim on this record. Therefore, we affirm.
Initial Charges and Notice of Intention to Rely Upon Insanity Defense.
In May 2020, the State filed an information charging Warner with 29 separate felonies. The charged crimes included 4 counts of attempted first degree assault on an officer, 10 counts of use of a firearm to commit a felony, 1 count of attempted first degree assault, 8 counts of terroristic threats, 3 counts of use of a deadly weapon to commit a felony, 1 count of second degree assault, 1 count of strangulation, and 1 count of felony child abuse. The State alleged that all of the offenses were committed on January 22, 2020.
In October 2020, Warner filed a notice of intention to rely upon an insanity defense pursuant to Neb. Rev. Stat. § 29-2203 (Reissue 2016). The State responded with a motion also filed under § 29-2203, requesting an order directing that Warner be examined by "Dr. Hartmann" of the Lincoln Regional Center. The district court granted the State's motion and entered an order directing that Hartmann or other staff members of the Lincoln Regional Center inquire into Warner's sanity at the time of the commission of the alleged offenses and provide a written report to the district court regarding the same.
Plea Agreement and Entry of No Contest Pleas.
In March 2021, the parties appeared for a hearing and informed the district court that a plea agreement had been reached. A written copy of the plea agreement was received by the district court. Under the plea agreement, Warner agreed to plead guilty or no contest to use of a firearm to commit a felony, terroristic threats, second degree assault, felony child abuse, and two counts of attempted first degree assault on an officer. For its part, the State agreed that upon the district court's acceptance of Warner's pleas, it would dismiss all remaining counts asserted in the information. The State also agreed that it would recommend specific terms of imprisonment set out in the plea agreement.
The plea agreement also contained several express references to a possible insanity defense. Following the heading. "Waiver of insanity defense," the agreement provided: "By pleading guilty or no contest, [Warner] will be waiving any claim that he was legally insane at the time of this offense and will be found guilty of [the offenses to which he was entering a plea]." (Emphasis in original.) Another provision of the plea agreement provided that Warner had "had an adequate opportunity to discuss with defense counsel . . . [t]he facts and circumstances of the case [and] [a]ny factual and legal defenses that may be available in the case, including . . . not guilty by reason of insanity (if applicable)." In addition, the plea agreement provided that Warner understood that "by entering this plea and being sentenced under this agreement," he would give up the right to appeal "any issues relating to [Warner's] insanity at the time of this offense."
At the hearing, the district court questioned Warner and his counsel about the plea agreement. Both acknowledged that they had read it, discussed it, and signed it and that Warner had also initialed each page. Warner denied needing more time to discuss the plea agreement with his attorney. The district court explained each offense and its possible penalties to Warner. It also advised him of his rights to an attorney, to a jury trial, to a speedy trial, to confrontation, to testify or decline to testify, and to appeal the judgment. The district court informed Warner that if he pled no contest to the charges, he would be giving up all such rights with the exception of the right to an attorney and the right to appeal. Warner acknowledged that he understood and entered pleas of no contest in accordance with the plea agreement. When asked by the district court, Warner confirmed that he was entering the no contest pleas freely and voluntarily.
The district court then asked the State to provide a factual basis for the pleas. According to the State, on January 22 2020, Warner was speaking with his wife and a friend in his garage when his behavior suddenly changed. Warner subsequently poked his friend in the shoulder with a knife; pointed the knife at his friend and made a slashing motion; and grabbed his friend's hand and forced the knife into it, causing injury. Warner later grabbed his wife by the throat and pushed her to the ground and attacked her with a pair of antlers. When the couple's minor son attempted to defend his mother, Warner grabbed his son by the throat multiple times. Warner also threatened to kill his wife if their son did not get him the keys to his truck. Warner eventually backed his truck through the closed garage door and then ran on foot into a nearby wooded area. When law enforcement officers arrived and searched for Warner outside, he entered his house, but later emerged with a handgun. Despite the officers' instructions to drop the handgun, Warner raised the gun and fired at least two rounds in the direction of the officers, striking one of the patrol cars. The officers then returned fire, wounding Warner. Warner did not object or comment upon the factual basis provided by the State.
The district court found that Warner's pleas and waiver of rights were made knowingly, intelligently, and voluntarily and that there was a sufficient factual basis to support the pleas. It accepted his no contest pleas and dismissed the remaining counts. It ordered a presentence investigation report and scheduled the matter for sentencing.
Motion to Withdraw Pleas.
Prior to sentencing, new counsel entered an appearance on behalf of Warner. Shortly thereafter, Warner filed a motion to withdraw his prior pleas. The district court continued the sentencing hearing and set a hearing on Warner's motion to withdraw his pleas for the same day.
At the hearing on Warner's motion to withdraw his pleas, Warner testified that after the State filed its initial charges, Dr Terry Davis, a forensic psychiatrist, examined Warner, reviewed various...
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