State v. Bartel
953 N.W.2d 224
Neb.2021Background:
- In Sept. 2015 a district court issued a domestic abuse protection order against Marc Bartel requiring him to stay away from his then-wife M.B. but allowing limited child-exchange contact and a brief text to notify of inability to pick up children; Bartel acknowledged violation was arrestable.
- On Oct. 31, 2015 Bartel came to M.B.’s house for a scheduled child pickup, approached the door to get the children to change clothes, M.B. locked the door and called police; Bartel was arrested for violating the protection order.
- On Oct. 7, 2016 a jury in Douglas County convicted Bartel of knowingly violating the protection order; he was sentenced to probation, a fine, and a suspended jail term.
- On June 5, 2017, in the parties’ separate domestic relations case, the district court entered a stipulated order declaring the 2015 protection order "void ab initio" and noting the parties anticipated Bartel’s criminal conviction could be vacated.
- Bartel moved for a new trial in the criminal case (filed June 23, 2017), arguing the June 2017 stipulation/order was newly discovered evidence (and alternatively that the conviction was legally erroneous or procured by fraud); the county court denied the motion and the district court affirmed.
- Bartel appealed to the Nebraska Supreme Court, which affirmed the denial of the motion for new trial.
Issues
| Issue | Plaintiff's Argument (Bartel) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Timeliness of claims under §29-2103(3) (10-day rule) | Bartel argued the June 2017 order justified relief under fraud and error-of-law grounds despite filing 8 months after verdict. | The 10-day statutory deadline runs from the verdict; Bartel did not show he was "unavoidably prevented" from timely filing. | Denial affirmed: claims under §29-2101(1) and (4) were untimely and ineffective. |
| Whether the June 2017 order is "newly discovered evidence" under §29-2101(5) | The stipulation/order was evidence that undermined M.B.’s trial testimony and retroactively voided the protection order, so it should support a new trial. | The order was created after trial and therefore was newly created or newly available, not newly discovered evidence about facts existing at trial. | Denial affirmed: evidence created after trial is not "newly discovered"; §29-2101(5) not satisfied. |
| Whether recantation or changed testimony in domestic case warrants new criminal trial | Bartel argued M.B.’s later stipulation implied fraud/recantation and attacked credibility. | The stipulation did not expressly recant or contradict prior testimony; recantation-based evidence is unreliable and generally insufficient. | Denial affirmed: newly discovered evidence must be more than credibility impeachment; no actual recantation shown. |
| Whether district court could render the 2015 protection order void ab initio (retroactive) | Bartel claimed §25-2001(4) authorized retroactive vacatur for fraud, making the protection order null from inception and voiding his conviction. | Even if §25-2001(4) applied, statutory prerequisites (motion within six months) and the high fraud standard were not met; the June 2017 order’s phrase "void ab initio" was a negotiated legal conclusion without jurisdictional defect or fraud findings. | Denial affirmed: no basis to treat the protection order as void ab initio with retroactive legal effect; statutory and evidentiary requirements unmet. |
Key Cases Cited
- State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002) (distinguishing "newly discovered" evidence from evidence that merely becomes newly available after trial)
- State v. Krannawitter, 305 Neb. 66, 939 N.W.2d 335 (2020) (explaining the two-prong test for newly discovered evidence in criminal cases)
- State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017) (timeliness standard for newly discovered evidence motions; reasonable time generally not to exceed five years)
- State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018) ("unavoidably prevented" requires circumstances beyond the party’s control; diligence required)
- State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020) (standard of review for denial of motion for new trial is abuse of discretion)