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State v. Payne

Supreme Court of Nebraska

November 14, 2014

STATE OF NEBRASKA, APPELLEE,
v.
CHRISTOPHER M. PAYNE, APPELLANT

Page 784

Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge.

Christopher M. Payne, Pro se, and, on brief, Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 785

[289 Neb. 468] Heavican, C.J.

INTRODUCTION

Christopher M. Payne appeals from the district court's denial, without an evidentiary hearing, of his motion for postconviction relief. We reverse, and remand with directions.

FACTUAL BACKGROUND

Payne was charged by information on April 27, 2005, with first degree sexual assault on a child, incest, and sexual [289 Neb. 469] assault of a child. Pursuant to a plea agreement, Payne pled no contest to first degree sexual assault on a child and was sentenced to 40 to 50 years' imprisonment. Payne did not file a direct appeal.

Payne filed a motion for postconviction relief on August 24, 2012, and subsequently filed an amended and second amended motion. In his operative motion, Payne alleges that his trial counsel (he was represented by two different counsel prior to his conviction) were ineffective in (1) failing to preserve his speedy trial rights and filing a motion to discharge based on that violation; (2) failing to move for discharge following a preindictment delay; (3) failing to adequately investigate possible defenses, specifically, not hiring an expert witness; (4) failing to request dismissal before the county court for the State's failure to provide sufficient evidence as to venue and corpus delicti and in failing to file a plea in abatement or motion to quash on these grounds; and (5) advising him to plead guilty or no contest despite the fact that a law enforcement witness testified falsely. In addition, Payne alleges that he should be permitted to withdraw his no contest plea due to the aforementioned false testimony.

The district court denied Payne's motion without an evidentiary ...


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