Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/22/2017 09:14 AM CDT




                                                        - 154 -
                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                                                  STATE v. CROSS
                                                 Cite as 297 Neb. 154




                                        State of Nebraska, appellee, v.
                                          Shawn L. Cross, appellant.
                                                    ___ N.W.2d ___

                                          Filed July 14, 2017.    No. S-16-376.

                1.	 Criminal Law: Motions for New Trial: Evidence: Appeal and Error.
                     A de novo standard of review applies when an appellate court is review-
                     ing a trial court’s dismissal of a motion for a new trial under Neb. Rev.
                     Stat. § 29-2102(2) (Reissue 2016) without conducting an evidentiary
                     hearing. But a trial court’s denial of a motion for new trial after an evi-
                     dentiary hearing is reviewed for an abuse of discretion.
                2.	 Criminal Law: Motions for New Trial: Evidence: Time. When a
                     motion for new trial is filed more than 5 years after the date of the ver-
                     dict, there are two requirements that must be satisfied for the motion to
                     be timely under Neb. Rev. Stat. § 29-2103(4) (Reissue 2016): First, the
                     motion and supporting documents must show the new evidence could
                     not with reasonable diligence have been discovered and produced at
                     trial. Second, the evidence must be so substantial that a different result
                     may have occurred.
                 3.	 ____: ____: ____: ____. The timeliness requirements under Neb. Rev.
                     Stat. § 29-2103(4) (Reissue 2016) may be considered in any order, but
                     unless both requirements are satisfied, a motion for new trial based on
                     newly discovered evidence cannot be filed more than 5 years after the
                     date of the verdict.

                  Appeal from the District Court for Scotts Bluff County:
               R andall L. Lippstreu, Judge. Affirmed.

                    Shawn L. Cross, pro se.

                 Douglas J. Peterson, Attorney General, and Kimberly A.
               Klein for appellee.
                                     - 155 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. CROSS
                               Cite as 297 Neb. 154

  Heavican, C.J., Wright, Miller-Lerman, Stacy, K elch, and
Funke, JJ.
   Stacy, J.
   More than 5 years after his conviction, Shawn L. Cross filed
a motion for new trial, pursuant to Neb. Rev. Stat. § 29-2101(5)
(Reissue 2016), claiming newly discovered evidence. The dis-
trict court dismissed the motion without a hearing, pursuant to
Neb. Rev. Stat. § 29-2102(2) (Reissue 2016). Cross appeals,
and we affirm.
                             I. FACTS
   In 2009, Cross was charged with second degree assault and
use of a weapon to commit a felony for allegedly beating Pedro
Pacheco with a baseball bat.1 Before trial, Cross’ appointed
counsel, Richard DeForge, was allowed to withdraw based on a
conflict of interest. The conflict was that DeForge was already
representing Elgie Iron Bear, who was listed as a witness in
Cross’ case. Cross was appointed new counsel. Several months
later, new counsel was also permitted to withdraw, after which
DeForge was reappointed to represent Cross. The record shows
the reappointment of DeForge occurred because, by that point,
the case involving Iron Bear was closed and DeForge no longer
had a conflict of interest. DeForge thereafter represented Cross
at trial and on his direct appeal.
   The case was tried to a jury in March 2010, and Cross
was convicted of both charges. The court subsequently found
Cross was a habitual criminal2 and sentenced him to impris-
onment for a total of 20 to 25 years. Cross’ convictions and
sentences were summarily affirmed by the Nebraska Court
of Appeals.3
   In 2011, Cross filed a pro se motion for postconviction relief.
In it, he raised claims of ineffective assistance of counsel,

 1	
      See Neb. Rev. Stat. §§ 28-309 and 28-1205(1)(b) (Reissue 2016).
 2	
      Neb. Rev. Stat. § 29-2221 (Reissue 2016).
 3	
      State v. Cross, 18 Neb. App. lxxxv (No. A-10-426, Nov. 15, 2010).
                                     - 156 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. CROSS
                               Cite as 297 Neb. 154

including a claim that DeForge had a conflict of interest based
on the Iron Bear representation. Cross was appointed new
postconviction counsel, and an evidentiary hearing was held.
The district court denied postconviction relief, and the Court of
Appeals summarily affirmed.4
   In December 2015, Cross filed a pro se motion for new
trial pursuant to § 29-2101(1), (2), (4), and (5). The district
court found that to the extent Cross sought a new trial based
on the grounds set forth in subsections (1), (2), and (4) of
§ 29-2101, the motion was filed more than 10 days after the
verdict and was untimely under Neb. Rev. Stat. § 29-2103(3)
(Reissue 2016). The court also found Cross was not entitled
to a new trial based on newly discovered evidence under
§ 29-2101(5), because his motion and supporting documents
failed to set forth sufficient facts. The district court dismissed
the motion without conducting an evidentiary hearing.5 Cross
did not appeal.
   In March 2016, Cross filed another motion for new trial,
again claiming newly discovered evidence under § 29-2101(5).
The allegations of the second motion, which we address in
more detail in our analysis, were substantially similar to
those found insufficient in his first motion. As it had done
previously, the court examined the motion and supporting
documents, concluded they failed to set forth sufficient facts,
and dismissed the motion without conducting an eviden-
tiary hearing.6
   Cross timely appealed from the dismissal of his second
motion for new trial. We moved the case to our docket on our
own motion7 to address the impact of recent legislative amend-
ments to the new trial statutes at issue.8

 4	
      State v. Cross, 20 Neb. App. xxviii (No. A-12-188, Oct. 10, 2012).
 5	
      See § 29-2102(2). 
 6	
      Id.
 7	
      Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
 8	
      See 2015 Neb. Laws, L.B. 245, amending §§ 29-2102 and 29-2103.
                                     - 157 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. CROSS
                               Cite as 297 Neb. 154

               II. ASSIGNMENTS OF ERROR
   Cross assigns, restated, that the district court erred in (1)
failing to apply the correct standard of review to his motion
based on newly discovered evidence, (2) failing to hold an
evidentiary hearing, and (3) denying his motion for new trial
without addressing his conflict of interest allegation.
                         III. ANALYSIS
                    1. Statutory Framework
   In criminal cases, motions for new trial are governed by
§§ 29-2101, 29-2102, and 29-2103. In 2015, the Legislature
amended §§ 29-2102 and 29-2103,9 and this is our first oppor-
tunity to interpret and apply those amendments. We begin by
providing an overview of the statutory scheme.
   Section 29-2101 sets out the seven grounds on which a
motion for new trial may be based; only § 29-2101(5) is
relevant to this case. Pursuant to that subsection, a new trial
may be granted based on “newly discovered evidence material
for the defendant which he or she could not with reasonable
diligence have discovered and produced at the trial.”10 A new
trial may be granted only if the ground materially affects the
defend­ant’s substantial rights.11
   Section 29-2103 sets out how and when motions for new
trial must be presented. It requires all such motions to be “made
by written application” and to “state the grounds under section
29-2101 which are the basis for the motion.”12 Additionally,
§ 29-2103(2) requires the motion to “be supported by evi-
dence as provided in section 29-2102.” The statutory time-
frame for filing a motion for new trial varies depending on the
ground asserted.13

 9	
      Id.
10	
      § 29-2101(5).
11	
      § 29-2101.
12	
      § 29-2103(1) and (2).
13	
      Compare § 29-2103(3), (4), and (5).
                                     - 158 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. CROSS
                               Cite as 297 Neb. 154

   Prior to August 30, 2015, a motion based on newly dis-
covered evidence had to be filed within 3 years of the ver-
dict.14 Effective that date, however, the Legislature amended
§§ 29-2102 and 29-2103.15 Now, a motion for new trial
alleging newly discovered evidence must be filed “within a
reasonable time after the discovery of the new evidence” and
“cannot be filed more than five years after the date of the
verdict, unless the motion and supporting documents show
the new evidence could not with reasonable diligence have
been discovered and produced at trial and such evidence is so
substantial that a different result may have occurred.”16 Both
of Cross’ motions for new trial were filed after the effective
date of the amendments and more than 5 years after the date
of the verdict.
   Section 29-2102 sets out what evidence must accompany
a motion for new trial. The type of necessary evidence varies
depending on which ground for new trial is relied upon.17 As
relevant here, a motion for new trial based on newly discovered
evidence under § 29-2101(5) “shall be supported by evidence
of the truth of the ground in the form of affidavits, depositions,
or oral testimony.”18
   Prior to the amendments made by L.B. 245, the new trial
statutes did not directly address when a court was required
to hold an evidentiary hearing on a motion. But as amended,
§ 29-2102(2) now dictates both when a hearing is required and
when a motion may be dismissed without a hearing:
      If the motion for new trial and supporting documents
      fail to set forth sufficient facts, the court may, on its
      own motion, dismiss the motion without a hearing. If the
      motion for new trial and supporting documents set forth

14	
      § 29-2103(4) (Reissue 2008).
15	
      2015 Neb. Laws, L.B. 245.
16	
      § 29-2103(4) (Reissue 2016).
17	
      § 29-2102(1).
18	
      Id.
                                       - 159 -
                 Nebraska Supreme Court A dvance Sheets
                         297 Nebraska R eports
                                  STATE v. CROSS
                                 Cite as 297 Neb. 154

      facts which, if true, would materially affect the substan-
      tial rights of the defendant, the court shall cause notice
      of the motion to be served on the prosecuting attorney,
      grant a hearing on the motion, and determine the issues
      and make findings of fact and conclusions of law with
      respect thereto.
The district court relied on the new provisions of § 29-2102(2)
to dismiss Cross’ second motion for new trial without a
hearing. We note that, unlike motions for postconviction
relief, the statutes governing motions for new trial contain no
express limitation on successive motions.19 As such, although
the district court noted Cross had filed successive motions
for new trial raising substantially the same grounds, it did
not dismiss the second motion on that basis, and instead
proceeded to analyze the second motion under the applicable
new trial statutes.

                     2. Standard of R eview
  We have not yet determined the standard of review to be
applied when an appellate court reviews a trial court’s dis-
missal of a motion for a new trial under § 29-2102(2) without
conducting an evidentiary hearing. Historically, a trial court’s
order denying a motion for new trial has been reviewed for an
abuse of discretion.20 We have accorded trial judges signifi-
cant discretion in granting or denying a motion for new trial,
because the trial judge sees the witnesses, hears the testimony,
and has a special perspective on the relationship between the
evidence and the verdict.21

19	
      Compare § 29-2101 et seq., with Neb. Rev. Stat. § 29-3001(3) (Reissue
      2016) (“[t]he court need not entertain a second motion or successive
      motions for similar relief on behalf of the same prisoner”). See, also, State
      v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).
20	
      See, e.g., State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015); State v.
      Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).
21	
      State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
                                     - 160 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. CROSS
                               Cite as 297 Neb. 154

   But we are persuaded that a different standard of review
should be applied when a motion for new trial is denied
without an evidentiary hearing under § 29-2102(2). In such a
situation, the role of the trial judge is to examine the motion
and supporting documents to determine whether they set forth
sufficient facts which, if true, “would materially affect the
substantial rights of the defendant.”22 A trial judge undertakes
a similar review process in postconviction proceedings, so we
look to our jurisprudence in that area for guidance.
   Nebraska’s postconviction statutes allow a prisoner in cus-
tody under sentence to move for relief on the ground there was
such a denial or infringement of the prisoner’s constitutional
rights as to render the judgment void or voidable.23 “Unless the
motion and the files and records of the case show . . . that the
prisoner is entitled to no relief,” the court must hold an evi-
dentiary hearing.24 Based on this language, we have held that
a trial court must review a postconviction motion to determine
whether it contains sufficient allegations which, if true, dem-
onstrate a violation of the defendant’s constitutional rights.25
If the trial court finds that the allegations are not sufficient to
meet this standard or that the files and records affirmatively
show the defendant is not entitled to postconviction relief, it
may deny relief without conducting an evidentiary hearing. If
the defendant appeals, we review the trial court’s determina-
tion de novo.26
   As noted, § 29-2102(2) authorizes the trial court to dis-
miss a motion for new trial without conducting an eviden-
tiary hearing “[i]f the motion for new trial and supporting
documents fail to set forth sufficient facts.” This statutory
language is similar to the language the Legislature used in the

22	
      § 29-2102(2).
23	
      § 29-3001.
24	
      § 29-3001(2).
25	
      See State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015).
26	
      See, id.; State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015).
                                     - 161 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. CROSS
                               Cite as 297 Neb. 154

postconviction act.27 Moreover, the nature of the trial court’s
review of motions for postconviction relief and motions for
new criminal trials are similar. Indeed, the legislative history
of § 29-2102(2) suggests the Legislature intended the new
prehearing review process applicable to motions for new trial
to be similar to the prehearing review process applied in post-
conviction actions.28
   [1] For these reasons, we determine a de novo standard
of review should apply when an appellate court is review-
ing a trial court’s dismissal of a motion for a new trial under
§ 29-2102(2) without conducting an evidentiary hearing. We
will continue to apply the abuse of discretion standard of
review to appeals from motions for new trial denied after an
evidentiary hearing.

                  3. Timeliness of Motion for
                   New Trial Based on Newly
                      Discovered Evidence
   [2,3] We begin by considering whether Cross’ motion is
timely under § 29-2103. Where, as here, the motion for new
trial is filed more than 5 years after the date of the verdict,
there are two requirements that must be satisfied for the motion
to be timely under § 29-2103(4): First, the motion and support-
ing documents must show the new evidence could not with
reasonable diligence have been discovered and produced at
trial. Second, the evidence must be so substantial that a differ-
ent result may have occurred. These timeliness requirements
may be considered in any order, but unless both requirements
are satisfied, a motion for new trial based on newly discovered
evidence “cannot be filed more than five years after the date of
the verdict.”29

27	
      § 29-3001(2).
28	
      See Floor Debate, L.B. 245, 104th Leg., 1st Sess. 13-14 (Mar. 12, 2015)
      (remarks of Senator Burke Harr).
29	
      § 29-2103(4).
                                - 162 -
            Nebraska Supreme Court A dvance Sheets
                    297 Nebraska R eports
                           STATE v. CROSS
                          Cite as 297 Neb. 154

  Cross’ motion for new trial asserts three general grounds of
newly discovered evidence. We address each in turn.

                   (a) Testimony of Cross’ Aunt
   First, Cross alleges that a prosecutor tampered with a trial
witness, Cross’ aunt, and that she testified falsely as a result.
In support of this ground, Cross attached to his motion a hand-
written letter dated “1-21-15” and signed “Your Aunt . . . .”
The letter states in pertinent part:
      I didn[’]t want to testify . . . against you and I told [the
      prosecutor] that but he had the court [subpoena] me any-
      way. I told him I didn’t see anything that happened that
      [night], I only heard and he used that. He said I should
      testify [because] he knows I have children that get in
      trouble a lot and he would make the courts make it hard
      for them . . . . I was so scared of him . . . . I guess I didn’t
      want to testify but he forced me to. He came to pick me
      up at my house in his car and would question me on
      the way.
This letter is not the type of supporting evidence permit-
ted by § 29-2102(1), which requires that grounds of newly
discovered evidence “shall be supported by evidence of the
truth of the ground in the form of affidavits, depositions, or
oral testimony.” But even if the information in the letter had
been presented in a permissible form, it would not support
Cross’ claim that his aunt testified falsely. At best, it shows
she testified reluctantly. Moreover, neither the motion nor
the supporting documents show that the information in the
letter could not have been discovered and presented at trial
with reasonable diligence. Our de novo review shows Cross
failed to meet the first requirement of § 29-2103(4), and
therefore the district court properly found his motion was
not timely on this ground and dismissed it without conduct-
ing an evidentiary hearing. Because we conclude the first
requirement was not met, we need not determine whether
                                      - 163 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. CROSS
                               Cite as 297 Neb. 154

the evidence was so substantial that a different result may
have occurred.30
                    (b) Testimony of Pacheco
   Cross’ second claim of newly discovered evidence relates
to the testimony of the assault victim, Pacheco. Cross alleges
both that Pacheco’s trial testimony was false and that Pacheco
should not have been permitted to testify, because he was in
the country illegally. In support of these allegations, Cross
attached transcribed portions of Pacheco’s 2009 deposition tes-
timony, wherein he admits being in the United States without
a visa or “papers.”
   Again, Cross has failed to meet the first requirement
of § 29-2103(4). Section 29-2103(4) requires that the evi-
dence relied upon be “new evidence.” The 2009 deposition
was taken before trial and is not new evidence. Nor, in any
event, is the evidence so substantial that a different result
might have occurred. Cross’ second ground for new trial
fails to satisfy either requirement under § 29-2103(4), and is
time barred.
                 (c) DeForge Conflict of Interest
   Cross’ third and final allegation of newly discovered evi-
dence relates to the conflict of interest DeForge had dur-
ing his early representation of Cross. Cross concedes in his
motion that he has raised this issue before, but suggests that
“[i]t doesn’t matter.” We disagree. The motion and support-
ing documents reveal no “new evidence” regarding the con-
flict of interest. To the contrary, the record indicates Cross
raised the same conflict of interest issue before trial, on direct
appeal, in his motion for postconviction relief, and in his
first motion for new trial. Absent some “new evidence” that
could not with reasonable diligence have been discovered
and presented at trial, Cross cannot bring a motion for new

30	
      See, State v. Draper, supra note 20; State v. Merchant, 285 Neb. 456, 827
      N.W.2d 473 (2013).
                             - 164 -
          Nebraska Supreme Court A dvance Sheets
                  297 Nebraska R eports
                        STATE v. CROSS
                       Cite as 297 Neb. 154

trial based on this ground more than 5 years after the date of
his verdict.
                        (d) Summary
  Cross’ second motion for new trial and supporting docu-
ments fail to set forth sufficient facts to show any of the
grounds he alleges were timely filed under § 29-2103(4). As
such, dismissal of the motion without a hearing was proper
under § 29-2102(2), and Cross’ assignments of error to the
contrary are without merit.
                       IV. CONCLUSION
   We conclude the proper standard of review to apply when
reviewing a trial court’s dismissal of a motion for a new trial
under § 29-2102(2) without conducting an evidentiary hearing
is de novo on the record. Our de novo review of Cross’ motion
and supporting documents demonstrates that he has failed to
satisfy the timeliness requirements of § 29-2103(4) and that
dismissal of the motion without a hearing was proper under
§ 29-2102(2). We affirm the order dismissing his motion for
new trial without a hearing.
                                                    A ffirmed.
   Cassel, J., not participating.
