State v. Carr, 294 Neb. 185

Background

Two informations: one for a September 11, 2014 robbery (robbery case) and one for an August 30, 2014 homicide and related charges (homicide case). Carr pleaded guilty to robbery (firearm charge dismissed) and no contest to amended counts in the homicide case (attempted robbery, use of a firearm, and manslaughter) as part of a plea agreement.
The State presented factual bases tying Carr to both incidents: eyewitness identifications, a ballistic match between a rifle and the fatal bullet, a fingerprint on the rifle matching Carr, and social-media/phone photos of Carr with the rifle.
Shortly before sentencing, Carr sought a continuance and then moved to withdraw his pleas after deposing a previously unknown witness, Traeshawn Davis, who reported (1) a statement by Jomarcus Scott indicating involvement in Maurice Williams’ death and (2) a purported jailhouse remark by Carr that “I wasn’t the one who pulled the trigger first.”
At the withdrawal hearing, the court received Davis’s deposition and defense counsel’s affidavit but no statements from the State’s cooperating witnesses that Carr sought to impeach. The court found Davis’s testimony inconsistent with prior statements and jail records, and found his timeline (conversation with Scott in early September) inconsistent with the August 30 shooting.
The trial court overruled Carr’s motion to withdraw the pleas, finding the newly discovered evidence not credible and not exculpatory; Carr was sentenced and appealed. The Nebraska Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument (Carr)	Defendant's Argument (State)	Held
Whether the trial court abused its discretion by denying Carr’s presentencing motion to withdraw pleas based on newly discovered evidence	Davis’s testimony (Scott’s statement and Carr’s jail remark) is newly discovered, would impeach State witnesses, and could exculpate Carr, so withdrawal should be allowed	The proffered evidence is weak, impeachment-only, and not sufficiently credible or exculpatory to warrant withdrawal	Court did not abuse discretion; evidence not credible or clearly exculpatory, and impeachment-only value is relevant to denial
Whether Carr’s pleas were entered freely, intelligently, voluntarily, and understandingly	Carr lacked knowledge of Scott’s statement before pleading, so his pleas were not fully informed	Even if the court failed to recite the right to counsel, Carr had counsel, consulted with counsel, and was advised of other plea elements	Pleas were valid: record shows waiver of rights, factual basis, penalty range, and actual representation by counsel

Key Cases Cited

State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (recognizing standard for presentencing withdrawal of pleas)
State v. Schanaman, 286 Neb. 125, 835 N.W.2d 66 (discretionary standard and prejudice inquiry for plea withdrawal)
State v. Brown, 214 Neb. 665, 335 N.W.2d 542 (newly discovered evidence affecting witness credibility can be material to the defense)
State v. Watkins, 277 Neb. 428, 762 N.W.2d 589 (failure to inform of right to counsel does not invalidate a plea when defendant had counsel and affirmatively consulted)
U.S. v. Garcia, 401 F.3d 1008 (9th Cir.) (discussion of whether newly discovered evidence plausibly would have altered plea decision)