State v. McCray, A-16-059

Samuel D. McCray was charged in Lancaster County with multiple controlled-substance, money-possession, and firearm-related counts, each carrying habitual criminal enhancements.
Pursuant to a plea agreement McCray pled guilty to one count of possession of a controlled substance and being a habitual criminal; the State dismissed five other counts (including the firearm counts) and their enhancements.
An enhancement hearing found McCray eligible for habitual criminal status; the court sentenced him to 10–15 years’ imprisonment (statutory minimum for habitual criminal conviction).
On the day his jury trial was set to begin, McCray moved to withdraw his plea, claiming he pled only because he was forced to decide then and because counsel failed to subpoena his brother (who would have testified on the firearm charge dismissed in the plea).
Trial counsel Noerrlinger testified they had discussed options (continuance, plea, trial), that McCray elected the plea after consultation, and that the court advised McCray of rights waived by pleading guilty.
The trial court denied the motion to withdraw, concluded the plea was knowing, voluntary, and intelligent, and McCray appealed raising three claims: erroneous denial of plea withdrawal, ineffective assistance of counsel, and excessive sentence.

Issue	McCray's Argument	State's Argument	Held
Whether the trial court erred in denying motion to withdraw plea	McCray says plea was coerced by time pressure and counsel’s failure to subpoena his brother	Plea was voluntary and informed; brother’s testimony related to dismissed charge and did not compel withdrawal	Denial affirmed — plea was knowing, voluntary, intelligent; no clear and convincing evidence to withdraw
Whether McCray received ineffective assistance of counsel	Multiple claims against three trial attorneys (failure to subpoena, investigate, challenge warrant, coercion, file preservation, etc.)	Record insufficient on direct appeal to resolve such claims; many require evidentiary hearing	Not resolved on direct appeal — record inadequate; claims preserved for postconviction proceedings
Whether the 10–15 year sentence is excessive	Court failed to give proper weight to unspecified mitigating factors	Sentence is within statutory limits for habitual criminal and court considered PSI and relevant factors	Sentence affirmed — within statutory range and not an abuse of discretion

State v. Carr, 294 Neb. 185, 881 N.W.2d 192 (discretion to allow plea withdrawal reviewed for abuse of discretion)
State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (burden to show fair and just reason by clear and convincing evidence to withdraw plea)
State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (direct-appeal review of ineffective-assistance claims limited by record sufficiency)
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (need to raise known or apparent ineffective-assistance claims on direct appeal when counsel changes)
State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (legal standard for deciding ineffective-assistance claims on direct appeal)
State v. Dehning, 296 Neb. 537, 894 N.W.2d 331 (sentences within statutory limits reviewed for abuse of discretion)
State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (factors sentencing court should consider)