State v. Warner , 312 Neb. 116 ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    08/05/2022 09:06 AM CDT
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    STATE V. WARNER
    Cite as 
    312 Neb. 116
    State of Nebraska, appellee, v.
    Paul B. Warner, appellant.
    ____ N.W.2d ___
    Filed July 29, 2022.     No. S-21-733.
    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 con-
    test 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
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    312 Nebraska Reports
    STATE V. WARNER
    Cite as 
    312 Neb. 116
    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.
    Papik, J.
    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 con-
    test 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 inef-
    fective assistance of counsel claim on this record. Therefore,
    we affirm.
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    STATE V. WARNER
    Cite as 
    312 Neb. 116
    BACKGROUND
    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 imprison-
    ment set out in the plea agreement.
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    STATE V. WARNER
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    312 Neb. 116
    The plea agreement also contained several express refer-
    ences 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 oppor-
    tunity to discuss with defense counsel . . . [t]he facts and cir-
    cumstances 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 agree-
    ment 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] insan-
    ity 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 tes-
    tify, 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 fac-
    tual 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
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    STATE V. WARNER
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    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 direc-
    tion 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 sched-
    uled 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 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
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    STATE V. WARNER
    Cite as 
    312 Neb. 116
    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 irratio-
    nal” and not “the actions of a man in command of his facul-
    ties.” In Davis’ opinion, Warner suffered a psychotic break
    on January 22; that but for the “manic and psychotic epi-
    sode,” 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 drink-
    ing 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 con-
    test pleas, he was aware of Davis’ opinion that he was not
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    STATE V. WARNER
    Cite as 
    312 Neb. 116
    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 to complete it. Warner
    asserted that he wanted Hartmann to complete the examina-
    tion and that if Hartmann also found him insane at the time
    of the charged offenses, he would not enter any pleas. Warner
    also claimed that at the time he entered his pleas, he did not
    understand how to pursue a defense of not responsible by rea-
    son of insanity.
    The district court denied Warner’s motion to withdraw his
    pleas and immediately proceeded to sentence Warner.
    Sentencing.
    The district court sentenced Warner to a combined term of
    18 to 32 years’ imprisonment. The sentence followed the sen-
    tencing recommendation within the plea agreement.
    Warner timely appealed.
    ASSIGNMENTS OF ERROR
    Warner assigns that the district court erred (1) in not adjudi-
    cating his notice of intention to rely upon an insanity defense
    and (2) in denying his motion to withdraw his no contest pleas.
    He also assigns that his trial counsel was ineffective for not
    advising Warner against entering the plea agreement, given his
    potential insanity defense.
    STANDARD OF REVIEW
    [1] A trial court has discretion to allow defendants to with-
    draw their guilty or no contest pleas before sentencing. State v.
    Canaday, 
    307 Neb. 407
    , 
    949 N.W.2d 348
     (2020). 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. 
    Id.
    [2,3] Whether a claim of ineffective assistance of trial coun-
    sel can be determined on direct appeal presents a question of
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    STATE V. WARNER
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    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. State v. Theisen, 
    306 Neb. 591
    , 
    946 N.W.2d 677
    (2020). 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 defi-
    cient performance. 
    Id.
    ANALYSIS
    Notice of Intention to Rely Upon Insanity Defense.
    Warner’s first assignment of error is not entirely clear. He
    appears to contend that his filing of a notice of intention to
    rely upon an insanity defense triggered an obligation on the
    part of the district court to determine, prior to trial and prior
    to accepting his pleas, whether Warner was insane at the time
    of the charged offenses. Warner does not explain the source of
    this purported obligation.
    Nothing in § 29-2203, the statute that requires the filing of
    a notice of intention to rely upon an insanity defense, suggests
    that the district court has a pretrial obligation to determine
    the sanity of a defendant who has filed such a notice. To the
    contrary, various provisions of that statute indicate that the
    question of whether a defendant was insane at the time of
    the charged offenses is to be determined at trial. The statute
    provides that “[n]o evidence offered by the defendant for the
    purpose of establishing his or her insanity shall be admitted
    in the trial of the case” unless notice is provided to the dis-
    trict court and the county attorney in the manner prescribed.
    § 29-2203(1) (emphasis supplied). The statute also provides
    that “[i]f the trier of fact acquits the defendant on the grounds
    of insanity, the verdict shall reflect whether the trier acquits
    him or her on that ground alone or on other grounds as well.”
    § 29-2203(3).
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    STATE V. WARNER
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    312 Neb. 116
    Warner’s filing of a notice of intention to rely upon an
    insanity defense preserved his right to present evidence as to
    his sanity at trial. It did not require the district court to make
    any determination regarding Warner’s sanity before trial, and
    it did not preclude the district court from accepting Warner’s
    waiver of his right to trial when he entered his no contest pleas.
    Warner’s first assignment of error is meritless.
    Motion to Withdraw No Contest Pleas.
    Warner next contends that the district court erred by overrul-
    ing his motion to withdraw his no contest pleas. Before turning
    to Warner’s arguments, we briefly review the standards govern-
    ing motions to withdraw a guilty or no contest plea.
    [4,5] The right to withdraw a plea previously entered is not
    absolute. State v. Carr, 
    294 Neb. 185
    , 
    881 N.W.2d 192
     (2016).
    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. 
    Id.
     The defendant
    has the burden to show the grounds for withdrawal by clear
    and convincing evidence. 
    Id.
    Warner offers a number of arguments as to why he should
    have been permitted to withdraw his no contest pleas. His
    primary argument is that a defendant cannot waive an insanity
    defense. Again, however, Warner offers no authority and little
    explanation for this assertion. Warner’s counsel did clarify at
    oral argument that Warner is not contending that he was psy-
    chotic or suffering from any other condition that would render
    him incapable of entering a plea at the time of the plea hearing.
    Instead, it is Warner’s position that because Davis had pro-
    vided an opinion that he was insane at the time of the charged
    offenses, he could not waive the insanity defense by entering
    a plea. We see no reason, however, why a defendant who is
    competent to enter a plea could not waive a potential insan-
    ity defense just as he or she could waive any other defense.
    Indeed, were we to agree with Warner, a defendant with a
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    STATE V. WARNER
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    potential insanity defense would be deprived of the opportunity
    to enter into a plea agreement in the manner any other defend­
    ant may.
    Alternatively, Warner suggests that he should have been
    permitted to withdraw his pleas because, at the time of the plea
    hearing, he did not understand the defense of not responsible
    by reason of insanity. The only evidence Warner points to in
    support of this argument, however, is his testimony that he “did
    not . . . understand how to pursue” a defense of not responsible
    by reason of insanity. Even if Warner did not understand the
    mechanics of how to pursue a defense of not responsible by
    reason of insanity, the record undermines any notion that he
    did not understand his no contest pleas would waive the right
    to rely on such a defense. As we have discussed above, the plea
    agreement, which Warner initialed, signed, discussed with his
    counsel, and stated a desire to enter, expressly provided that
    by entering the plea agreement, Warner was waiving the right
    to claim that he was legally insane at the time of the charged
    offenses and would be found guilty of the offenses to which
    he agreed to enter pleas. And, as we have emphasized, Warner
    makes no claim that, at the time of the plea hearing, he lacked
    competence to enter the pleas.
    Finally, Warner contends that he should have been permit-
    ted to withdraw his pleas, so that Hartmann could complete
    the examination of his sanity. While we have recognized that
    newly discovered evidence can be a fair and just reason to
    allow for the withdrawal of a guilty or no contest plea before
    sentencing, see State v. Carr, 
    294 Neb. 185
    , 
    881 N.W.2d 192
    (2016), Warner cannot make a claim of newly discovered
    evidence here. Warner did not discover new evidence to sup-
    port an insanity defense after entering his pleas. At the time
    he entered his no contest pleas, Warner already knew about
    Davis’ opinion that he was legally insane at the time of the
    charged offenses. See U.S. v. Harvey, 
    829 F.3d 586
     (8th Cir.
    2016) (holding that claims of innocence did not constitute fair
    and just reason to allow for withdrawal of plea because claim
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    was based on information available to defendant prior to plea).
    And, at the time Warner sought to withdraw his no contest
    pleas, he could not know whether Hartmann or any other
    expert would subsequently find that he was legally insane.
    [6] Based on the evidence before us, Warner’s desire to
    obtain a second opinion regarding his sanity and his desire
    to withdraw his pleas more generally appear to have been the
    result of nothing more than Warner’s changing his mind about
    his earlier decision to enter no contest pleas. While it is under-
    standable that a defendant might have second thoughts about
    a decision to enter a plea agreement, the Nebraska Court of
    Appeals has recently concluded that the fact that a defendant
    changed his or her mind is, on its own, an insufficient basis
    upon which to withdraw a plea. See State v. Nollett, 
    29 Neb. App. 282
    , 
    953 N.W.2d 57
     (2020). Many other courts, both state
    and federal, have reached the same conclusion. See, e.g., U.S.
    v. Brown, 
    250 F.3d 811
     (3d Cir. 2001); U.S. v. Stuttley, 
    103 F.3d 684
     (8th Cir. 1996); U.S. v. Rios-Ortiz, 
    830 F.2d 1067
     (9th
    Cir. 1987); Winsted v. State, 
    241 P.3d 497
     (Wyo. 2010); State
    v. Jenkins, 
    303 Wis. 2d 157
    , 
    736 N.W.2d 24
     (2007). We agree
    with this view and hold that a defendant’s change of mind alone
    is not a fair and just reason to withdraw a guilty or no contest
    plea. If second thoughts alone could constitute a fair and just
    reason to withdraw a plea, the requirement that a defendant
    demonstrate a fair and just reason before being permitted to
    withdraw a plea would be rendered completely hollow.
    Unpersuaded by any of Warner’s arguments, we conclude
    that the district court did not abuse its discretion by overruling
    Warner’s motion to withdraw his pleas.
    Ineffective Assistance of Counsel.
    Finally, Warner assigns and argues that his trial counsel
    was ineffective for not advising Warner against entering the
    plea agreement given his potential insanity defense. We find
    that our record is insufficient to review this claim on direct
    appeal.
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    [7,8] When, as here, 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 appar-
    ent from the record; otherwise, the issue will be procedur-
    ally barred in a subsequent postconviction proceeding. State
    v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
     (2019). The fact that
    an ineffective assistance of counsel claim is raised on direct
    appeal does not necessarily mean that it can be resolved. State
    v. Theisen, 
    306 Neb. 591
    , 
    946 N.W.2d 677
     (2020). The deter-
    mining factor is whether the record is sufficient to adequately
    review the question. 
    Id.
    Our record in this case contains no information as to what
    trial counsel advised Warner regarding the plea agreement or
    a possible insanity defense. Neither does the record provide
    any indication about the reasoning that informed that coun-
    sel’s advice. Because we cannot conclusively determine on
    this record whether counsel provided deficient performance or
    whether Warner was prejudiced by the alleged deficient per­
    formance, the record is insufficient to review this claim on
    direct appeal. See State v. Mrza, 
    supra.
    CONCLUSION
    Because we find no error on the part of the district court
    and cannot review Warner’s ineffective assistance of counsel
    claim on this record, we affirm Warner’s convictions.
    Affirmed.