State v. Cross, 297 Neb. 154

Background

In 2010 Shawn L. Cross was convicted of second degree assault and use of a weapon; later adjudicated a habitual criminal and sentenced to 20–25 years.
Cross was represented at trial and on direct appeal by Richard DeForge, who earlier had been allowed to withdraw due to a conflict arising from representing a listed witness (Elgie Iron Bear), but was reappointed after that case closed.
Cross pursued postconviction relief (raising ineffective assistance / conflict claims), received counsel, had an evidentiary hearing, and was denied relief; the Court of Appeals affirmed.
More than five years after his verdict, Cross filed two pro se motions for new trial under Neb. Rev. Stat. § 29-2101(5) (newly discovered evidence); the district court dismissed both motions without hearings under § 29-2102(2).
Cross appealed the dismissal of his second motion. The Nebraska Supreme Court considered (1) the proper standard of review when a new-trial motion is dismissed without a hearing, and (2) whether Cross satisfied the amended timeliness requirements of § 29-2103(4).

Issues

Issue	Cross's Argument	State's Argument	Held
Proper standard of appellate review when a § 29-2102(2) dismissal occurs without an evidentiary hearing	Trial-court dismissal should be reviewed for abuse of discretion	De novo review is appropriate because the court reviews the motion and supporting documents for legal sufficiency	De novo review applies to dismissals without a hearing; abuse of discretion remains for denials after an evidentiary hearing
Whether Cross's newly alleged evidence was timely under § 29-2103(4) (filed >5 years after verdict)	Evidence (a 2015 letter from his aunt, 2009 deposition, and conflict facts) are newly discovered and justify a late motion	The motion and attachments do not show evidence could not have been discovered with reasonable diligence, nor that evidence is so substantial a different result may have occurred	Motion untimely: Cross failed the diligence/newness requirement (and failed on substance), so § 29-2103(4) not satisfied
Whether the motion and supporting documents required an evidentiary hearing under § 29-2102(2)	The motion set forth sufficient facts (e.g., aunt’s letter shows coercion; deposition shows alienage; conflict newly discovered) warranting a hearing	Documents are inadequate, not in the required form, and do not show new evidence or diligence; court properly dismissed without a hearing	Dismissal without a hearing was proper because the filings did not set forth sufficient facts that, if true, would materially affect Cross’s substantial rights

Key Cases Cited

State v. Stricklin, 290 Neb. 542 (abuse of discretion standard historically applied to new-trial denials)
State v. Draper, 289 Neb. 777 (standards and precedents on new-trial practice)
State v. Archie, 273 Neb. 612 (trial judge’s advantage in evaluating witness credibility)
State v. Nolan, 292 Neb. 118 (postconviction prehearing sufficiency review and de novo appellate review)
State v. Cook, 290 Neb. 381 (postconviction review principles)
State v. Hessler, 288 Neb. 670 (successive motions context)
State v. Merchant, 285 Neb. 456 (case discussing new-trial/postconviction principles)