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STATE V. WARNER

Cite as 312 Neb. 116

State of Nebraska, appellee, v. 

Paul B. Warner, appellant.

____ N.W.2d ___

Filed July 29, 2022. No. S-21-733.

1. Pleas: Appeal and Error. An appellate court will not disturb the trial 

court’s ruling on a presentencing motion to withdraw a guilty or no contest plea absent an abuse of discretion.

2. Effectiveness of Counsel: Constitutional Law: Statutes: Records: 

Appeal and Error. Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law, 

which turns upon the sufficiency of the record to address the claim 

without an evidentiary hearing or whether the claim rests solely on the 

interpretation of a statute or constitutional requirement.

3. Effectiveness of Counsel: Appeal and Error. In reviewing a claim 

of ineffective assistance of trial counsel on direct appeal, an appellate 

court determines as a matter of law whether the record conclusively 

shows that (1) a defense counsel’s performance was deficient or (2) 

a defendant was or was not prejudiced by a defense counsel’s alleged 

deficient performance.

4. Pleas. When a defendant moves to withdraw his or her plea before 

sentencing, a court, in its discretion, may sustain the motion for any fair 

and just reason, provided that such withdrawal would not substantially 

prejudice the prosecution.

5. Pleas: Proof. A defendant moving to withdraw his or her plea before 

sentencing has the burden to show the grounds for withdrawal by clear 

and convincing evidence.

6. Pleas. A defendant’s change of mind alone is not a fair and just reason 

to withdraw a guilty or no contest plea.

7. Effectiveness of Counsel: Postconviction: Records: Appeal and 

Error. When a defendant’s trial counsel is different from his or her 

counsel on direct appeal, the defendant must raise on direct appeal any 

issue of trial counsel’s ineffective performance which is known to the 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/30/2022 09:07 AM CDT
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STATE V. WARNER

Cite as 312 Neb. 116

defendant or is apparent from the record; otherwise, the issue will be 

procedurally barred in a subsequent postconviction proceeding.

8. Effectiveness of Counsel: Records: Appeal and Error. The fact that 

an ineffective assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved. The determining factor is 

whether the record is sufficient to adequately review the question.

Appeal from the District Court for Cass County: Michael 

A. Smith, Judge. Affirmed.

William F. Eustice for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

On an evening in January 2020, Paul B. Warner physically 

attacked his wife, his son, and a friend. When law enforcement 

officers arrived at the scene, Warner fired a gun at them. Based 

on these incidents, the State charged Warner with 29 separate 

felonies. Although Warner obtained an opinion from a forensic 

psychiatrist that he was temporarily insane during the events 

at issue, Warner and the State entered into a plea agreement 

in which Warner agreed to plead guilty or no contest to six 

felony charges and the State agreed to dismiss all remaining 

charges. After the district court accepted Warner’s no contest pleas to the agreed-upon charges, however, Warner filed 

a motion to withdraw his pleas. The district court overruled 

Warner’s motion and sentenced him accordingly. Warner now 

appeals, primarily arguing that the district court should have 

permitted him to withdraw his pleas. He also contends that 

his trial counsel was ineffective in providing advice regarding 

the plea agreement. We find no error on the part of the district 

court and conclude that we are unable to review Warner’s ineffective assistance of counsel claim on this record. Therefore, 

we affirm.
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STATE V. WARNER

Cite as 312 Neb. 116

BACKGROUND

Initial Charges and Notice of Intention to

Rely Upon Insanity Defense.

In May 2020, the State filed an information charging Warner 

with 29 separate felonies. The charged crimes included 4 

counts of attempted first degree assault on an officer, 10 counts 

of use of a firearm to commit a felony, 1 count of attempted 

first degree assault, 8 counts of terroristic threats, 3 counts of 

use of a deadly weapon to commit a felony, 1 count of second 

degree assault, 1 count of strangulation, and 1 count of felony 

child abuse. The State alleged that all of the offenses were 

committed on January 22, 2020.

In October 2020, Warner filed a notice of intention to rely 

upon an insanity defense pursuant to Neb. Rev. Stat. § 29-2203 

(Reissue 2016). The State responded with a motion also filed 

under § 29-2203, requesting an order directing that Warner be 

examined by “Dr. Hartmann” of the Lincoln Regional Center. 

The district court granted the State’s motion and entered an 

order directing that Hartmann or other staff members of the 

Lincoln Regional Center inquire into Warner’s sanity at the 

time of the commission of the alleged offenses and provide a 

written report to the district court regarding the same.

Plea Agreement and Entry of No Contest Pleas.

In March 2021, the parties appeared for a hearing and 

informed the district court that a plea agreement had been 

reached. A written copy of the plea agreement was received 

by the district court. Under the plea agreement, Warner agreed 

to plead guilty or no contest to use of a firearm to commit a 

felony, terroristic threats, second degree assault, felony child 

abuse, and two counts of attempted first degree assault on 

an officer. For its part, the State agreed that upon the district 

court’s acceptance of Warner’s pleas, it would dismiss all 

remaining counts asserted in the information. The State also 

agreed that it would recommend specific terms of imprisonment set out in the plea agreement.
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STATE V. WARNER

Cite as 312 Neb. 116

The plea agreement also contained several express references to a possible insanity defense. Following the heading, 

“Waiver of insanity defense,” the agreement provided: “By 

pleading guilty or no contest, [Warner] will be waiving any 

claim that he was legally insane at the time of this offense and 

will be found guilty of [the offenses to which he was entering 

a plea].” (Emphasis in original.) Another provision of the plea 

agreement provided that Warner had “had an adequate opportunity to discuss with defense counsel . . . [t]he facts and circumstances of the case [and] [a]ny factual and legal defenses 

that may be available in the case, including . . . not guilty by 

reason of insanity (if applicable).” In addition, the plea agreement provided that Warner understood that “by entering this 

plea and being sentenced under this agreement,” he would give 

up the right to appeal “any issues relating to [Warner’s] insanity at the time of this offense.”

At the hearing, the district court questioned Warner and his 

counsel about the plea agreement. Both acknowledged that 

they had read it, discussed it, and signed it and that Warner had 

also initialed each page. Warner denied needing more time to 

discuss the plea agreement with his attorney. The district court 

explained each offense and its possible penalties to Warner. It 

also advised him of his rights to an attorney, to a jury trial, 

to a speedy trial, to confrontation, to testify or decline to testify, and to appeal the judgment. The district court informed 

Warner that if he pled no contest to the charges, he would be 

giving up all such rights with the exception of the right to an 

attorney and the right to appeal. Warner acknowledged that he 

understood and entered pleas of no contest in accordance with 

the plea agreement. When asked by the district court, Warner 

confirmed that he was entering the no contest pleas freely 

and voluntarily.

The district court then asked the State to provide a factual basis for the pleas. According to the State, on January 

22, 2020, Warner was speaking with his wife and a friend 

in his garage when his behavior suddenly changed. Warner 
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Cite as 312 Neb. 116

subsequently poked his friend in the shoulder with a knife; 

pointed the knife at his friend and made a slashing motion; and 

grabbed his friend’s hand and forced the knife into it, causing 

injury. Warner later grabbed his wife by the throat and pushed 

her to the ground and attacked her with a pair of antlers. When 

the couple’s minor son attempted to defend his mother, Warner 

grabbed his son by the throat multiple times. Warner also 

threatened to kill his wife if their son did not get him the keys 

to his truck. Warner eventually backed his truck through the 

closed garage door and then ran on foot into a nearby wooded 

area. When law enforcement officers arrived and searched for 

Warner outside, he entered his house, but later emerged with a 

handgun. Despite the officers’ instructions to drop the handgun, 

Warner raised the gun and fired at least two rounds in the direction of the officers, striking one of the patrol cars. The officers 

then returned fire, wounding Warner. Warner did not object or 

comment upon the factual basis provided by the State.

The district court found that Warner’s pleas and waiver of 

rights were made knowingly, intelligently, and voluntarily and 

that there was a sufficient factual basis to support the pleas. 

It accepted his no contest pleas and dismissed the remaining 

counts. It ordered a presentence investigation report and scheduled the matter for sentencing.

Motion to Withdraw Pleas.

Prior to sentencing, new counsel entered an appearance on 

behalf of Warner. Shortly thereafter, Warner filed a motion 

to withdraw his prior pleas. The district court continued the 

sentencing hearing and set a hearing on Warner’s motion to 

withdraw his pleas for the same day.

At the hearing on Warner’s motion to withdraw his pleas, 

Warner testified that after the State filed its initial charges, 

Dr. Terry Davis, a forensic psychiatrist, examined Warner, 

reviewed various records and reports regarding the case, and 

determined that Warner was insane when he committed the 

acts that led to his prosecution. Warner offered, and the district 
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STATE V. WARNER

Cite as 312 Neb. 116

court received, a copy of a written report authored by Davis 

dated September 16, 2020.

In his report, Davis noted that Warner’s behavior had 

changed drastically over the 2 or 3 weeks leading up to the 

alleged offenses. During that time, Warner claimed that he 

was the “reincarnation of King Arthur” and that aliens were 

following him and controlling his life. Davis observed that 

Warner had a history of depression and anxiety, but that he 

stopped taking prescribed psychotropic medications about 3 

weeks prior to the events at issue. Davis concluded that 

Warner’s actions on January 22, 2020, were “clearly irrational” and not “the actions of a man in command of his faculties.” In Davis’ opinion, Warner suffered a psychotic break 

on January 22; that but for the “manic and psychotic episode,” the offenses would not have occurred; and that at that 

time, Warner was incapable of perceiving right from wrong. 

Although Davis believed that Warner was legally insane when 

he committed the acts for which he was charged, Davis also 

opined that Warner was competent to stand trial or to enter 

pleas to those charges with the caveat that Warner had no 

memory of the January 22 incident and would have to rely on 

other accounts.

Davis’ report acknowledged that Warner admitted to drinking approximately three alcoholic beverages on January 22, 

2020, and that Warner’s wife believed that after Warner 

stopped taking his prescribed medications, he had begun 

“‘self-medicating’” with marijuana. Davis also acknowledged 

several text messages Warner sent after the incident in which 

he stated that he became upset after he observed his wife 

“‘flirting’” with his friend and attributed his actions to being 

drunk. Davis suggested that Warner may have preferred to be 

perceived as drunk rather than mentally ill and concluded his 

actions were the result of his mental health condition and not 

any drug or alcohol use.

Warner testified that at the time he entered his no contest pleas, he was aware of Davis’ opinion that he was not 
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responsible by reason of insanity. He testified, however, that 

he wanted to withdraw his pleas, so that he could obtain a 

second opinion as to his sanity at the time of the charged 

offenses. Specifically, Warner testified that Hartmann began 

an examination of him but was unable to complete it. Warner 

asserted that he wanted Hartmann to complete the examination and that if Hartmann also found him insane at the time 

of the charged offenses, he would not enter any pleas. Warner 

also claimed that at the time he entered his pleas, he did not 

understand how to pursue a defense of not responsible by reason of insanity.

The district court denied Warner’s motion to withdraw his 

pleas and immediately proceeded to sentence Warner.

Sentencing.

The district court sentenced Warner to a combined term of 

18 to 32 years’ imprisonment. The sentence followed the sentencing recommendation within the plea agreement.

Warner timely appealed.

ASSIGNMENTS OF ERROR

Warner assigns that the district court erred (1) in not adjudicating his notice of intention to rely upon an insanity defense 

and (2) in denying his motion to withdraw his no contest pleas. 

He also assigns that his trial counsel was ineffective for not 

advising Warner against entering the plea agreement, given his 

potential insanity defense.

STANDARD OF REVIEW

[1] A trial court has discretion to allow defendants to withdraw their guilty or no contest pleas before sentencing. State v. 

Canaday, 307 Neb. 407, 949 N.W.2d 348 (2020). An appellate 

court will not disturb the trial court’s ruling on a presentencing 

motion to withdraw a guilty or no contest plea absent an abuse 

of discretion. Id.

[2,3] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of 
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law, which turns upon the sufficiency of the record to address 

the claim without an evidentiary hearing or whether the claim 

rests solely on the interpretation of a statute or constitutional 

requirement. State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 

(2020). In reviewing a claim of ineffective assistance of trial 

counsel on direct appeal, an appellate court determines as a 

matter of law whether the record conclusively shows that (1) a 

defense counsel’s performance was deficient or (2) a defendant 

was or was not prejudiced by a defense counsel’s alleged deficient performance. Id.

ANALYSIS

Notice of Intention to Rely Upon Insanity Defense.

Warner’s first assignment of error is not entirely clear. He 

appears to contend that his filing of a notice of intention to 

rely upon an insanity defense triggered an obligation on the 

part of the district court to determine, prior to trial and prior 

to accepting his pleas, whether Warner was insane at the time 

of the charged offenses. Warner does not explain the source of 

this purported obligation.

Nothing in § 29-2203, the statute that requires the filing of 

a notice of intention to rely upon an insanity defense, suggests 

that the district court has a pretrial obligation to determine 

the sanity of a defendant who has filed such a notice. To the 

contrary, various provisions of that statute indicate that the 

question of whether a defendant was insane at the time of 

the charged offenses is to be determined at trial. The statute 

provides that “[n]o evidence offered by the defendant for the 

purpose of establishing his or her insanity shall be admitted 

in the trial of the case” unless notice is provided to the district court and the county attorney in the manner prescribed. 

§ 29-2203(1) (emphasis supplied). The statute also provides 

that “[i]f the trier of fact acquits the defendant on the grounds 

of insanity, the verdict shall reflect whether the trier acquits 

him or her on that ground alone or on other grounds as well.” 

§ 29-2203(3).
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STATE V. WARNER

Cite as 312 Neb. 116

Warner’s filing of a notice of intention to rely upon an 

insanity defense preserved his right to present evidence as to 

his sanity at trial. It did not require the district court to make 

any determination regarding Warner’s sanity before trial, and 

it did not preclude the district court from accepting Warner’s 

waiver of his right to trial when he entered his no contest pleas. 

Warner’s first assignment of error is meritless.

Motion to Withdraw No Contest Pleas.

Warner next contends that the district court erred by overruling his motion to withdraw his no contest pleas. Before turning 

to Warner’s arguments, we briefly review the standards governing motions to withdraw a guilty or no contest plea.

[4,5] The right to withdraw a plea previously entered is not 

absolute. State v. Carr, 294 Neb. 185, 881 N.W.2d 192 (2016). 

When a defendant moves to withdraw his or her plea before 

sentencing, a court, in its discretion, may sustain the motion for 

any fair and just reason, provided that such withdrawal would 

not substantially prejudice the prosecution. Id. The defendant 

has the burden to show the grounds for withdrawal by clear 

and convincing evidence. Id.

Warner offers a number of arguments as to why he should 

have been permitted to withdraw his no contest pleas. His 

primary argument is that a defendant cannot waive an insanity 

defense. Again, however, Warner offers no authority and little 

explanation for this assertion. Warner’s counsel did clarify at 

oral argument that Warner is not contending that he was psychotic or suffering from any other condition that would render 

him incapable of entering a plea at the time of the plea hearing. 

Instead, it is Warner’s position that because Davis had provided an opinion that he was insane at the time of the charged 

offenses, he could not waive the insanity defense by entering 

a plea. We see no reason, however, why a defendant who is 

competent to enter a plea could not waive a potential insanity defense just as he or she could waive any other defense. 

Indeed, were we to agree with Warner, a defendant with a 
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potential insanity defense would be deprived of the opportunity 

to enter into a plea agreement in the manner any other defendant may.

Alternatively, Warner suggests that he should have been 

permitted to withdraw his pleas because, at the time of the plea 

hearing, he did not understand the defense of not responsible 

by reason of insanity. The only evidence Warner points to in 

support of this argument, however, is his testimony that he “did 

not . . . understand how to pursue” a defense of not responsible 

by reason of insanity. Even if Warner did not understand the 

mechanics of how to pursue a defense of not responsible by 

reason of insanity, the record undermines any notion that he 

did not understand his no contest pleas would waive the right 

to rely on such a defense. As we have discussed above, the plea 

agreement, which Warner initialed, signed, discussed with his 

counsel, and stated a desire to enter, expressly provided that 

by entering the plea agreement, Warner was waiving the right 

to claim that he was legally insane at the time of the charged 

offenses and would be found guilty of the offenses to which 

he agreed to enter pleas. And, as we have emphasized, Warner 

makes no claim that, at the time of the plea hearing, he lacked 

competence to enter the pleas.

Finally, Warner contends that he should have been permitted to withdraw his pleas, so that Hartmann could complete 

the examination of his sanity. While we have recognized that 

newly discovered evidence can be a fair and just reason to 

allow for the withdrawal of a guilty or no contest plea before 

sentencing, see State v. Carr, 294 Neb. 185, 881 N.W.2d 192 

(2016), Warner cannot make a claim of newly discovered 

evidence here. Warner did not discover new evidence to support an insanity defense after entering his pleas. At the time 

he entered his no contest pleas, Warner already knew about 

Davis’ opinion that he was legally insane at the time of the 

charged offenses. See U.S. v. Harvey, 829 F.3d 586 (8th Cir. 

2016) (holding that claims of innocence did not constitute fair 

and just reason to allow for withdrawal of plea because claim 
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was based on information available to defendant prior to plea). 

And, at the time Warner sought to withdraw his no contest 

pleas, he could not know whether Hartmann or any other 

expert would subsequently find that he was legally insane.

[6] Based on the evidence before us, Warner’s desire to 

obtain a second opinion regarding his sanity and his desire 

to withdraw his pleas more generally appear to have been the 

result of nothing more than Warner’s changing his mind about 

his earlier decision to enter no contest pleas. While it is understandable that a defendant might have second thoughts about 

a decision to enter a plea agreement, the Nebraska Court of 

Appeals has recently concluded that the fact that a defendant 

changed his or her mind is, on its own, an insufficient basis 

upon which to withdraw a plea. See State v. Nollett, 29 Neb. 

App. 282, 953 N.W.2d 57 (2020). Many other courts, both state 

and federal, have reached the same conclusion. See, e.g., U.S. 

v. Brown, 250 F.3d 811 (3d Cir. 2001); U.S. v. Stuttley, 103 

F.3d 684 (8th Cir. 1996); U.S. v. Rios-Ortiz, 830 F.2d 1067 (9th 

Cir. 1987); Winsted v. State, 241 P.3d 497 (Wyo. 2010); State 

v. Jenkins, 303 Wis. 2d 157, 736 N.W.2d 24 (2007). We agree 

with this view and hold that a defendant’s change of mind alone 

is not a fair and just reason to withdraw a guilty or no contest 

plea. If second thoughts alone could constitute a fair and just 

reason to withdraw a plea, the requirement that a defendant 

demonstrate a fair and just reason before being permitted to 

withdraw a plea would be rendered completely hollow.

Unpersuaded by any of Warner’s arguments, we conclude 

that the district court did not abuse its discretion by overruling 

Warner’s motion to withdraw his pleas.

Ineffective Assistance of Counsel.

Finally, Warner assigns and argues that his trial counsel 

was ineffective for not advising Warner against entering the 

plea agreement given his potential insanity defense. We find 

that our record is insufficient to review this claim on direct 

appeal.
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[7,8] When, as here, a defendant’s trial counsel is different 

from his or her counsel on direct appeal, the defendant must 

raise on direct appeal any issue of trial counsel’s ineffective 

performance which is known to the defendant or is apparent from the record; otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding. State 

v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). The fact that 

an ineffective assistance of counsel claim is raised on direct 

appeal does not necessarily mean that it can be resolved. State 

v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020). The determining factor is whether the record is sufficient to adequately 

review the question. Id.

Our record in this case contains no information as to what 

trial counsel advised Warner regarding the plea agreement or 

a possible insanity defense. Neither does the record provide 

any indication about the reasoning that informed that counsel’s advice. Because we cannot conclusively determine on 

this record whether counsel provided deficient performance or 

whether Warner was prejudiced by the alleged deficient performance, the record is insufficient to review this claim on 

direct appeal. See State v. Mrza, supra.

CONCLUSION

Because we find no error on the part of the district court 

and cannot review Warner’s ineffective assistance of counsel 

claim on this record, we affirm Warner’s convictions.

Affirmed.