State v. Warner
| Decision Date | 29 July 2022 |
| Docket Number | S-21-733. |
| Citation | 312 Neb. 116,977 N.W.2d 904 |
| Parties | STATE of Nebraska, appellee, v. Paul B. WARNER, appellant. |
| Court | Nebraska Supreme Court |
William F. Eustice, Omaha, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein, Lincoln, 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.
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.
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.
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 records and reports regarding the case, and determined that Warner was insane when he committed the acts that led to his prosecution. Warner offered, and the district court received, a copy of a written report authored by Davis dated September 16, 2020.
In his report, Davis noted that Warner's behavior had changed drastically over the 2 or 3 weeks leading up to the alleged offenses. During that time, Warner claimed that he was the "reincarnation of King Arthur" and that aliens were following him and controlling his life. Davis observed that Warner had a history of depression and anxiety, but that he stopped taking prescribed psychotropic medications about 3 weeks prior to the events at issue. Davis concluded that Warner's actions on January 22, 2020, were "clearly irrational" and not "the actions of a man in command of his faculties." In Davis’ opinion, Warner suffered a psychotic break on January 22; that but for the "manic and psychotic episode," the offenses would not have occurred; and that at that time, Warner was incapable of perceiving right from wrong. Although Davis believed that Warner was legally insane when he committed the acts for which he was charged, Davis also opined that Warner was competent to stand trial or to enter pleas to those charges with the caveat that Warner had no memory of the January 22 incident and would have to rely on other accounts.
Davis’ report acknowledged that Warner admitted to drinking approximately three alcoholic beverages on January 22, 2020, and that Warner's wife believed that after Warner stopped taking his prescribed medications, he had begun " ‘self-medicating’ " with marijuana. Davis also acknowledged several text messages Warner sent after the incident in which he stated that he became upset after he observed his wife " ‘flirting’ " with his friend and attributed his actions to being drunk. Davis suggested that Warner may have preferred to be perceived as drunk rather than mentally ill and concluded his actions were the result of his mental health condition and not any drug or alcohol use.
Warner testified that at the time he entered his no contest pleas, he was aware of Davis’ opinion that he was not responsible by reason of insanity. He testified, however, that he wanted to withdraw his pleas, so that he could obtain a second opinion as to his sanity at the time of the charged offenses. Specifically, Warner testified that Hartmann began an examination of him but was unable...
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