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State v. Carr

Supreme Court of Nebraska

July 15, 2016

State of Nebraska, appellee,
v.
Joshua D. Carr, appellant.

         1. Pleas: Courts. A trial court has discretion to allow defendants to withdraw their guilty or no contest pleas before sentencing.

         2. 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 contest plea absent an abuse of discretion.

         3. 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.

         4. 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.

         5. Pleas: Evidence. Newly discovered evidence can be a fair and just reason to withdraw a guilty or no contest plea before sentencing.

         6. ___: ___. If a defendant moves to withdraw his or her plea because of newly discovered evidence, the court must consider the credibility of the newly discovered evidence.

         7. Pleas. To support a finding that a defendant freely, intelligently, voluntarily, and understandingly entered a guilty plea, a court must inform a defendant about (1) the nature of the charge, (2) the right to assistance of counsel, (3) the right to confront witnesses against the defendant, (4) the right to a jury trial, and (5) the privilege against self-incrimination.

         8. ___. To support a finding that a defendant freely, intelligently, voluntarily, and understandingly entered a guilty plea, the record must show a factual basis for the plea and that the defendant knew the range of penalties for the crime charged.

          [294 Neb. 186] 9. Pleas: Right to Counsel. A court's failure to inform a defendant of the right to assistance of counsel does not necessarily render the plea invalid if the defendant was actually represented by counsel.

         Appeals from the District Court for Lancaster County: Steven D. Burns, Judge.

          Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, and Kelch, JJ.

          CONNOLLY, J.

         SUMMARY

         Joshua D. Carr argues that the court abused its discretion by not allowing him to withdraw his guilty and no contest pleas before sentencing because of newly discovered evidence. After the court accepted Carr's pleas, he deposed a previously unknown witness whose testimony, Carr contends, would impeach the State's witnesses. The court overruled Carr's motion to withdraw his pleas because it determined that the newly discovered evidence did not exculpate Carr and was not credible. We conclude that the court did not abuse its discretion, and we therefore affirm.

         BACKGROUND

         In 2014, the State filed two informations against Carr. In case No. S-15-921, the State charged Carr with robbery and use of a firearm to commit a felony for events occurring on September 11, 2014 (the robbery case). In case No. S-15-922, the State charged Carr with first degree murder, attempted robbery, possession of a stolen firearm, and two counts of use of a firearm to commit a felony (the homicide case). The State [294 Neb. 187] alleged that the homicide case arose from the robbery and death of Maurice Williams on August 30, 2014.

         Carr and the State reached a plea agreement. He pleaded guilty to the robbery charge in the robbery case, and in exchange, the State dismissed the use of a firearm charge. In the homicide case, Carr pleaded no contest to an amended information charging him with attempted robbery, use of a firearm to commit a felony, and manslaughter.

         Before accepting Carr's pleas, the court received a factual basis for the charges. For the robbery case, the prosecutor stated:

[0]n Thursday, September 11th, 2014 at approximately 2:00 a.m., three male individuals contacted the residents of an apartment [on] Huntington Avenue, Lincoln, Lancaster County, Nebraska, at the front door. The three individuals said they were looking for a place to "cool out."
After a short period of time, one of the three individuals pulled out a black semi-automatic handgun and asked where the marijuana was. As one individual pointed a gun at and threatened the individuals in the apartment . . . the other two searched the apartment and collected [cash and personal property].
A person who was in the apartment during the robbery identified the three male individuals responsible as . . . Carr, Micheal [sic] Nevels and Jomarcus Scott.
[Later], law enforcement contacted . . . Carr and . . . Scott and they located a . . . handgun during the search of . . . Scott. . . . Scott admitted to the robbery at [the apartment on] Huntington with . . . Carr and . . . Nevels.

         The State gave the following factual basis for the charges in the amended information in the homicide case:

[0]n Saturday, August 30th, 2014 at approximately 1:03 a.m., Lincoln police officers were sent to [an apartment on] "R" Street, . . . Lincoln, Lancaster County, Nebraska. [Persons] reported that . . . Williams had been shot. Law [294 Neb. 188] enforcement and emergency personnel found . . . Williams lying on the floor inside ...

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