State v. Cross, 297 Neb. 154

Background

Shawn L. Cross was convicted in 2010 of second-degree assault and use of a weapon; sentenced as a habitual criminal to 20–25 years. His convictions were affirmed on direct appeal.
Cross’s trial counsel, Richard DeForge, initially withdrew due to a conflict (representation of a listed witness, Elgie Iron Bear), but was later reappointed when that case closed; Cross later raised an ineffective-assistance/conflict claim repeatedly.
Cross filed postconviction relief in 2011 (heard and denied), then a pro se motion for new trial in December 2015 asserting newly discovered evidence; that motion was dismissed without a hearing as insufficient under amended statutes.
In March 2016 Cross filed a second pro se motion for new trial under §29-2101(5) (newly discovered evidence); the district court again dismissed it without an evidentiary hearing under §29-2102(2).
The Nebraska Supreme Court granted review to interpret 2015 amendments to §§29-2102 and 29-2103 and to decide the appropriate standard of review for dismissals without a hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standard of review when a motion for new trial is dismissed without an evidentiary hearing under §29-2102(2)	Cross argued the court applied wrong standard; implied de novo review should not apply	State relied on traditional abuse-of-discretion review for new-trial denials	Court held de novo review applies to dismissals under §29-2102(2); abuse of discretion remains for denials after an evidentiary hearing
Timeliness of a motion for new trial filed more than 5 years after verdict under §29-2103(4)	Cross asserted three bases of newly discovered evidence (aunt’s recantation letter; victim’s immigration status/false testimony; counsel conflict) rendered the motion timely	State argued none of the proffered materials satisfied §29-2103(4)’s twofold requirements (could not have been discovered with reasonable diligence; and evidence so substantial a different result may have occurred)	Court held motion untimely: Cross failed the diligence/newness requirement for each ground, so dismissal without hearing was proper
Sufficiency of supporting evidence to trigger an evidentiary hearing under §29-2102(2)	Cross claimed attached materials (handwritten letter; 2009 deposition excerpts; prior record on counsel conflict) warranted a hearing	State maintained the materials were not in permitted form or were not new/substantial	Court held the motion and documents did not set forth sufficient facts that, if true, would materially affect substantial rights; therefore no hearing required
Whether repeated/successive motions barred as a basis for dismissal	Cross implied prior litigation did not preclude raising the same issue again	State noted the record shows repeated litigations of same conflict, and no new evidence was advanced	Court noted statutes permit successive motions but found no new evidence here; dismissal was based on timeliness/sufficiency, not on a statutory bar

Key Cases Cited

State v. Stricklin, 290 Neb. 542 (Neb. 2015) (discussing standards for reviewing new-trial motions)
State v. Draper, 289 Neb. 777 (Neb. 2015) (new-trial and sufficiency principles)
State v. Archie, 273 Neb. 612 (Neb. 2007) (trial judge’s advantage in assessing motions affecting verdict)
State v. Nolan, 292 Neb. 118 (Neb. 2015) (de novo review of prehearing dismissal in postconviction context)
State v. Cook, 290 Neb. 381 (Neb. 2015) (postconviction procedural standards)
State v. Hessler, 288 Neb. 670 (Neb. 2014) (discussion of successive motions in criminal context)
State v. Merchant, 285 Neb. 456 (Neb. 2013) (new-trial/postconviction procedural considerations)