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09/09/2022 01:07 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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Nebraska Supreme Court Advance Sheets
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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. WARNER
Cite as 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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. WARNER
Cite as 312 Neb. 116
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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. WARNER
Cite as 312 Neb. 116
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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. WARNER
Cite as 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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312 Nebraska Reports
STATE V. WARNER
Cite as 312 Neb. 116
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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STATE V. WARNER
Cite as 312 Neb. 116
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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. WARNER
Cite as 312 Neb. 116
[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.