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State v. Pestka

February 5, 2002

STATE OF NEBRASKA, APPELLEE
v.
JEFFREY ALLEN PESTKA, APPELLANT



Irwin, Chief Judge, and Inbody and Carlson, Judges.

The opinion of the court was delivered by: Carlson, Judge

Not designated for permanent publication

Appeal from the District Court for Lancaster County: Paul D. Merritt, Jr., Judge. Affirmed.

INTRODUCTION

Jeffrey Allen Pestka was convicted of second degree murder pursuant to a plea of no contest. Pestka filed two motions to withdraw his plea. Each motion was denied after an evidentiary hearing. Pestka was subsequently sentenced to 40 to 60 years' imprisonment.

Pestka appeals his conviction, claiming that the district court abused its discretion in denying his motions to withdraw his plea. We find no error and therefore affirm the judgment of the district court.

FACTUAL BACKGROUND

At the plea hearing on April 14, 2000, a factual basis was provided by the State. On May 2, 1999, Pestka and Richard Napier were drinking at Big Red Keno in Lincoln, Nebraska. Soon after they left, a fight between them occurred. During the course of the fight, Pestka struck Napier numerous times and choked him to death.

Pestka called his now sister-in-law, Tracy Gutman, and told her, as recorded on audiotape:

"I can't tell you how angry I am inside. Actually, I am. I can say I just choked the mother fucker until he was dead. That fucker was gurgling, fucking his tongue and tons of blood. It got it all over me, and now I don't know what I'm supposed to do. I had fun doing it, and now that just, fuck, bitch, I'm a punk, ain't I. Now you're dead. How do you like that?"

Pestka was later arrested by the Lincoln Police Department. Blood was found on his clothing and on his person. DNA reports determined that the blood matched Napier's.

After Napier's body was found in a ditch along O Street, an autopsy was performed. The autopsy stated that the cause of Napier's death was strangulation and blunt force trauma.

The court appointed the Lancaster County public defender's office to represent Pestka. A member of that office was specifically assigned as Pestka's attorney. We will refer to him as "original counsel" or ...


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