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07/15/2016 09:06 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          294 Nebraska R eports
                                                       STATE v. CARR
                                                     Cite as 294 Neb. 185




                                          State of Nebraska, appellee, v.
                                            Joshua D. Carr, appellant.
                                                        ___ N.W.2d ___

                                        Filed July 15, 2016.     Nos. S-15-921, S-15-922.

                1.	 Pleas: Courts. A trial court has discretion to allow defendants to with-
                     draw 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 con-
                     test 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 rea-
                     son 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, volun-
                     tarily, 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.
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             Nebraska Supreme Court A dvance Sheets
                     294 Nebraska R eports
                              STATE v. CARR
                            Cite as 294 Neb. 185

 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. Affirmed.

  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 K elch, 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 previ-
ously 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 discre-
tion, 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 rob-
bery, possession of a stolen firearm, and two counts of use of
a firearm to commit a felony (the homicide case). The State
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                            STATE v. CARR
                          Cite as 294 Neb. 185

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 prosecu-
tor stated:
      [O]n Thursday, September 11th, 2014 at approximately
      2:00 a.m., three male individuals contacted the resi-
      dents 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 individu-
      als 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 apart-
      ment on] Huntington with . . . Carr and . . . Nevels.
   The State gave the following factual basis for the charges in
the amended information in the homicide case:
      [O]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
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             294 Nebraska R eports
                     STATE v. CARR
                   Cite as 294 Neb. 185

enforcement and emergency personnel found . . . Williams
lying on the floor inside the residence. He was found to
have sustained a single gunshot wound.
   He was transported to Bryan LGH West Hospital and
soon thereafter pronounced dead. The cause of death was
determined to be from the single gunshot wound.
   . . . Carr was identified as a suspect when a witness
reported to law enforcement that . . . Carr had stated he
shot . . . Williams with a rifle during a robbery attempt.
A rifle . . . was sent to the Nebraska state laboratory,
along with a bullet recovered from [the apartment on]
“R” Street, and the items were found to be a ballis-
tic match.
   The laboratory located a fingerprint on the rifle that
matched . . . Carr’s left middle finger. Law enforcement
located a photograph on social media as well as on . . .
Carr’s phone depicting . . . Carr holding the rifle.
   Several individuals agreed to law enforcement inter-
views after August 30th, 2014. From these interviews,
law enforcement learned that . . . Carr and three others
planned to rob . . . Williams of marijuana and money.
They rode together in a vehicle to [the apartment on]
“R” Street.
   Once there, one of the four made the secure residence
accessible, and . . . Carr and another went into the resi-
dence. . . . Carr had the rifle and held . . . Williams . . .
at gunpoint while the other person looked for money in
the bedroom. . . . Williams was heard to say to . . . Carr
that they “weren’t going to do him like that.” As Williams
attempted to walk past . . . Carr and toward the bedroom,
the rifle discharged and a bullet struck . . . Williams,
fatally injuring him.
   . . . Carr and the other person then quickly left the
residence, got into an awaiting vehicle occupied by the
two others involved in the planning of the robbery and
left the area.
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                           STATE v. CARR
                         Cite as 294 Neb. 185

        During driving away from the scene, . . . Carr was
     reported to have said he thought he shot him. In the days
     after the shooting, . . . Carr told others that he had in fact
     shot . . . Williams during a robbery attempt and that he
     would take responsibility for it. Approximately one week
     after the shooting, . . . Carr gave the rifle to a friend
     on the promise of $100. The friend placed the rifle in a
     closet at a St. Paul residence, where it was located by law
     enforcement . . . .
   A few days before the sentencing hearing, Carr moved
for a continuance. His attorney said that the State had
informed her that “new potentially exculpatory information
had surfaced from a previously unknown confidential inform­
ant.” Carr’s attorney said she needed more time to locate
and depose the informant. The court continued the sentenc-
ing hearing.
   A few days before the rescheduled sentencing hearing,
Carr moved to withdraw his pleas in both cases because of
newly discovered evidence. At the hearing on his motion to
withdraw, Carr offered the deposition of Traeshawn Davis, the
previously unknown witness.
   Davis testified about two statements: one made by Jomarcus
Scott and another by Carr. Davis said that in September 2014,
Scott asked him for a ride “out of town.” Davis testified that
Scott had “blood on his T-shirt and his basketball shorts.” He
asked what had happened, and Scott told him “‘we fucked up,
we fucked up, we fucked up, he’s dead.’” Davis asked who
was dead, and Scott said “‘Mo.’” According to the affidavit of
Carr’s attorney, Davis knew Williams as “Mo.”
   Davis was “pretty certain” his conversation with Scott
occurred in September 2014. Davis remembered having a wel-
fare appointment for his son around September 16 and stated,
“I was already saying, you know, it’s like not even two weeks
away that we got to go for his [son’s welfare] appointment.”
Davis denied that his conversation with Scott could have
occurred in August.
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           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                          STATE v. CARR
                        Cite as 294 Neb. 185

   Davis also testified about an interaction he had with Carr.
In July 2015, law enforcement arrested Davis on an unrelated
matter and placed him in the same “Pod” of the county jail as
Scott. Davis and Scott quarreled, so Davis moved to a differ-
ent pod, which happened to hold Carr. After Davis told his pod
mates why he had moved, Carr shared with him paperwork
related to the shooting of Williams so Davis could “see every-
thing that [Scott] said.”
   Later, Davis said that he, Carr, and other inmates were play-
ing cards when an inmate commented that Williams’ death was
“messed up.” Carr replied, according to Davis, “‘honestly, you
know, it is what it is. I just wish it wouldn’t have happened like
that, but I wasn’t the one who pulled the trigger first.’”
   At the hearing on Carr’s motion to withdraw his pleas, the
court also received an affidavit signed by his attorney. Carr’s
attorney stated that “[t]he State’s case in both prosecutions
is based primarily on cooperating witnesses, none of which
[sic] indicated that . . . Scott was involved in [Williams’]
homicide.”
   Carr’s attorney also questioned the veracity of Davis’ tes-
timony about the statement Carr made while playing cards in
jail. She averred that she had spoken with another inmate who
was in the same “grouping” as Carr at the county jail. The
inmate could not recall Carr’s making the statement attributed
to him by Davis. To the contrary, the inmate said that Carr
had “always maintained his innocence.” For example, when
another inmate suggested that Carr had killed Williams, Carr
responded, “‘Man, did I ever say I did it?’” Carr’s attorney
further stated that the security manager at the jail told her that
Davis and Carr were not released from their cells at the same
time, but that Davis could have eavesdropped on Carr’s con-
versations from a nearby cell.
   The court overruled Carr’s motion to withdraw his guilty
and no contest pleas. It stated that Davis’ testimony bore little
relation to the charges in the robbery case. As for the homicide
case, Carr’s purported jailhouse statement tended to inculpate
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                        294 Nebraska R eports
                                STATE v. CARR
                              Cite as 294 Neb. 185

him. The court noted that the record lacked the statements
of the “cooperating witnesses” whom Carr argued he might
impeach with Scott’s alleged statement to Davis. Furthermore,
the court found that Davis “insisted” that his conversation with
Scott occurred “some days” after Williams’ homicide. Even if
none of the witnesses placed Scott at the scene of the shoot-
ing, the court reasoned that Scott’s statement did not exculpate
Carr, because the “question is not whether Scott was present,
but rather, whether Carr was present.”
   After the court sentenced Carr, he appealed in both cases.
We sustained his motion to consolidate the appeals and then
granted his petition to bypass the Nebraska Court of Appeals.
                  ASSIGNMENTS OF ERROR
   Carr assigns that the court erred by (1) overruling his motion
to withdraw his guilty and no contest pleas because of newly
discovered evidence and (2) overruling his motion to withdraw
his guilty and no contest pleas because he did not enter them
freely, intelligently, voluntarily, and understandingly.
                  STANDARD OF REVIEW
   [1,2] A trial court has discretion to allow defendants to
withdraw their guilty or no contest pleas before sentencing.1
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.2
                        ANALYSIS
     Court Did Not A buse Its Discretion by Overruling
       Carr’s Motion to Withdraw His Pleas Because
               of Newly Discovered Evidence
   Carr argues that the court abused its discretion by over-
ruling his motion to withdraw his pleas. He contends that

 1	
      See State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
 2	
      See id.
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                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                                 STATE v. CARR
                               Cite as 294 Neb. 185

defendants ought to be entitled to withdraw their guilty or
no contest pleas upon the “mere suggestion of potentially
exculpatory evidence” or the discovery of evidence “mate-
rial to the preparation of the defense.”3 The State argues that
Carr’s standard is too lenient and would make withdrawal
“automatic.”4
   [3,4] The right to withdraw a plea previously entered is not
absolute.5 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 with-
drawal would not substantially prejudice the prosecution.6 The
defendant has the burden to show the grounds for withdrawal
by clear and convincing evidence.7
   [5] Newly discovered evidence can be a fair and just reason
to withdraw a guilty or no contest plea before sentencing.8
We have recognized that matters affecting the credibility of a
major witness are material to the defense in a criminal case.9
So evidence which the defendant might use to impeach an
important witness for the State, in addition to evidence which

 3	
      Brief for appellant at 24, 34.
 4	
      Brief for appellee at 21.
 5	
      State v. Ortega, supra note 1.
 6	
      State v. Schanaman, 286 Neb. 125, 835 N.W.2d 66 (2013).
 7	
      See State v. Ortega, supra note 1.
 8	
      See, U.S. v. Yamashiro, 788 F.3d 1231 (9th Cir. 2015); Winsted v. State,
      241 P.3d 497 (Wyo. 2010); State v. Kivioja, 225 Wis. 2d 271, 592 N.W.2d
      220 (1999); State v. Gomes, 79 Haw. 32, 897 P.2d 959 (1995); Garnett v.
      State, 769 P.2d 371 (Wyo. 1989); State v. Gallegos, 738 P.2d 1040 (Utah
      1987) (superseded by statute as recognized in State v. Ruiz, 282 P.3d 998
      (Utah 2012)). See, generally, Annot., 14 A.L.R.6th 517 (2006). But see,
      State v. Pitre, 506 So. 2d 930 (La. App. 1987); State v. Braverman, 348
      So. 2d 1183 (Fla. App. 1977).
 9	
      State v. Brown, 214 Neb. 665, 335 N.W.2d 542 (1983).
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                        294 Nebraska R eports
                                  STATE v. CARR
                                Cite as 294 Neb. 185

tends to show the defendant’s factual innocence, may form the
basis for withdrawal.10
    [6] Carr argues that the court may not consider whether the
newly discovered evidence is credible. We agree insofar as the
defendant does not have to convince the court that the defend­
ant is innocent or that a jury would acquit the defendant.11
But even the authority that Carr cites asks whether the newly
discovered evidence could have “at least plausibly motivated
a reasonable person in [the defendant’s] position not to have
pled guilty,” which requires some judgment as to the potency
of the evidence.12 Furthermore, the court must consider the
credibility of the evidence lest the defendant’s right to with-
draw a guilty or no contest plea becomes absolute: “In order to
assess whether a reason actually exists, the [trial] court must
engage in some credibility determination of the proffered rea-
son, without which withdrawal would be automatic, a matter
of right.”13
    We conclude that the court did not abuse its discretion by
determining that Carr failed to show a fair and just reason to
withdraw his guilty and no contest pleas by clear and con-
vincing evidence. As the court noted, Davis’ testimony bore
little relation to the crimes charged in the robbery case. And
the statement Carr purportedly made in jail while playing
cards—“‘I wasn’t the one who pulled the trigger first’”—

10	
      See U.S. v. Garcia, 401 F.3d 1008 (9th Cir. 2005). But cf., State v. French,
      200 Neb. 137, 262 N.W.2d 711 (1978); Ogden v. State, 13 Neb. 436, 14
      N.W. 165 (1882).
11	
      See U.S. v. Garcia, supra note 10; United States v. Morgan, 567 F.2d 479
      (D.C. Cir. 1977). See, also, State v. Gallegos, supra note 8.
12	
      U.S. v. Garcia, supra note 10, 401 F.3d at 1011–12. See, U.S. v. Bryant,
      557 F.3d 489 (7th Cir. 2009); Jefferson v. Com., 27 Va. App. 477, 500
      S.E.2d 219 (1998). See, also, State v. Kivioja, supra note 8; State v.
      Gomes, supra note 8; State v. Gallegos, supra note 8.
13	
      State v. Kivioja, supra note 8, 225 Wis. 2d at 291, 592 N.W.2d at 230.
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                        294 Nebraska R eports
                                  STATE v. CARR
                                Cite as 294 Neb. 185

would tend to inculpate Carr for the charges in the homi-
cide case.
   That leaves Davis’ recollection of his conversation with
Scott. According to Davis, Scott told him that “‘we’” had
made a mistake and that “‘Mo’” was dead. The court did
not err by emphasizing that Scott’s statement would not
necessarily exculpate Carr. Newly discovered impeachment
evidence may form the basis for a motion to withdraw a
guilty or no contest plea, but the fact that the evidence is use-
ful only for impeachment is relevant to the court’s exercise
of discretion.14
   Furthermore, the court found that Davis lacked credibil-
ity. His deposition testimony was inconsistent with his state-
ments to police. (Davis explained that the police must have
“rearranged my words.”) And records from the county jail
showed that Davis could not have observed Carr’s purported
jailhouse admission in the manner in which Davis claimed to
have observed the admission. Furthermore, as the court found,
Davis “insisted” that his conversation with Scott occurred
sometime during the first 2 weeks of September 2014, whereas
Williams was shot on August 30.
   Finally, Carr did not offer at the withdrawal hearing the
statements of the “cooperating witnesses” whom he argued
Scott’s statement would impeach. The only evidence that
Scott’s statement was inconsistent with the statements of
the cooperating witnesses was one sentence in the affidavit
of Carr’s attorney: “The State’s case in both prosecutions is
based primarily on cooperating witnesses, none of which [sic]
indicated . . . Scott was involved in [Williams’] homicide.”
So the court did not know, for example, whether the cooperat-
ing witnesses purported to give a complete list of everyone
involved in the homicide, or if they instead focused on Carr’s
involvement. The strength of Carr’s proof was relevant to

14	
      See U.S. v. Bryant, supra note 12.
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                        294 Nebraska R eports
                                 STATE v. CARR
                               Cite as 294 Neb. 185

whether he met his burden to show a fair and just reason by
clear and convincing evidence.

            Carr Freely, Intelligently, Voluntarily,
                  and Understandingly Entered
                             His Pleas
   [7,8] Carr argues that he did not enter his pleas freely,
intelligently, voluntarily, and understandingly, because he did
not know about Scott’s statement to Davis. 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.15 The record must also
show a factual basis for the plea and that the defendant knew
the range of penalties for the crime charged.16 Taking the fore-
going steps is enough to ensure that a plea is a voluntary and
intelligent choice among the alternative courses of action open
to a defendant, which is the ultimate standard by which we test
pleas of guilty or no contest.17
   Here, the record shows that the court informed Carr of the
nature of the charges, the right to confront witnesses, the right
to a jury trial, the privilege against self-incrimination, and the
range of penalties for the crimes charged. And the State pro-
vided a factual basis for the charges in both cases.
   [9] The record does not show that the court informed Carr
of the right to assistance of counsel. But this failure does not
necessarily render the plea invalid if the defendant was actu-
ally represented by counsel.18 For example, we held in State

15	
      State v. Ortega, supra note 1.
16	
      Id.
17	
      See State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).
18	
      See State v. Watkins, 277 Neb. 428, 762 N.W.2d 589 (2009).
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v. Watkins19 that the defendant’s plea was valid despite the
court’s failure to inform him of the right to counsel because
the defendant was accompanied by appointed counsel when he
entered the plea, he told the court he had had enough time to
discuss the plea agreement with his attorney and was satisfied
with his attorney’s efforts, and his attorney told the court that
he had no reason to think that the defendant was not freely,
intelligently, and voluntarily entering his plea.
   We conclude that Carr freely, intelligently, voluntarily, and
understandingly entered his guilty and no contest pleas even if
the court did not inform him of the right to counsel. Like the
defendant in Watkins, Carr had appointed counsel at his plea
hearing. Carr told the court he had spoken with his attorney
about his trial rights and had had sufficient time to do so. Carr
also told the court that he was satisfied with his attorney and
thought that she was competent. Carr’s attorney told the court
that she had spoken with Carr about his rights and thought that
he understood them. She further said she believed Carr was
“freely, voluntarily, knowingly, and intelligently” waiving his
trial rights.
                          CONCLUSION
   We conclude that the court did not abuse its discretion by
overruling Carr’s motion to withdraw his guilty and no con-
test pleas because of newly discovered evidence. We there-
fore affirm.
                                                  A ffirmed.
   Stacy, J., not participating.

19	
      Id.
