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State of Nebraska, appellee, v. 

Jay D. Amaya, appellant.

___ N.W.2d ___

Filed February 14, 2020. No. S-19-189.

1. Motions to Dismiss: DNA Testing: Appeal and Error. A motion to 

dismiss a proceeding under the DNA Testing Act after testing has been 

completed is addressed to the discretion of the trial court, and unless 

an abuse of discretion is shown, the trial court’s determination will not 

be disturbed.

2. DNA Testing: Appeal and Error. An appellate court will uphold a trial 

court’s findings of fact related to a motion for DNA testing unless such 

findings are clearly erroneous.

3. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower 

court’s determination.

4. DNA Testing: Pleas. The DNA Testing Act does not exclude persons 

who were convicted and sentenced pursuant to pleas.

5. DNA Testing. Neb. Rev. Stat. § 29-4123(2) (Reissue 2016) of the DNA 

Testing Act allows a court to vacate the judgment and release the person 

from custody only when the DNA test results “exonerate or exculpate 

the person.”

6. ____. When DNA test results are either inculpatory, inconclusive, or 

immaterial to the issue of the person’s guilt, the results will not entitle 

the person to relief under the DNA Testing Act.

7. DNA Testing: Motions to Vacate: Motions for New Trial. The remedies available under the DNA Testing Act are limited to those set out 

in Neb. Rev. Stat. § 29-4123(2) and (3) (Reissue 2016) and include, 

respectively, either vacating and setting aside the judgment and releasing 

the defendant from custody or seeking a new trial.

8. Statutes. Basic principles of statutory interpretation require a court to 

give statutory language its plain and ordinary meaning.

Nebraska Supreme Court Online Library

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

04/23/2020 09:09 AM CDT
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9. Statutes: Legislature: Intent. In discerning the meaning of a statute, 

a court must determine and give effect to the purpose and intent of the 

Legislature as ascertained from the entire language of the statute considered it in its plain, ordinary, and popular sense.

10. Statutes: Intent. When interpreting a statute, a court must give effect, 

if possible, to all the several parts of a statute and no sentence, clause, 

or word should be rejected as meaningless or superfluous if it can be 

avoided.

11. DNA Testing: Sentences: Motions for New Trial. Resentencing, absent 

a successful motion for new trial under Neb. Rev. Stat. § 29-4123(3) 

(Reissue 2016), is not a form of relief available under the DNA Testing 

Act.

12. DNA Testing: Pleas. The relief of withdrawing a guilty or no contest 

plea is not an available remedy under the DNA Testing Act.

Appeal from the District Court for Lincoln County: Michael 

E. Piccolo, Judge. Affirmed.

Robert W. Kortus, of Nebraska Commission on Public 

Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust 

for appellee.

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

and Papik, JJ.

Stacy, J.

In 1999, Jay D. Amaya pled no contest and was convicted 

of first degree murder, use of a deadly weapon to commit a 

felony, and first degree sexual assault. In 2017, he moved for 

DNA testing under the DNA Testing Act,1 and the district court 

ultimately ordered testing of four items of evidence. After the 

test results were received, the State moved to dismiss the proceeding. The district court granted the motion to dismiss, and 

Amaya appeals. We affirm.

1 Neb. Rev. Stat. §§ 29-4116 to 29-4125 (Reissue 2016).
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I. FACTS

1. Background

In 1998, Sheri Fhuere was sexually assaulted and killed in 

her home in North Platte, Nebraska. Both Amaya and Michael 

E. Long were arrested and charged with the crimes. The following facts are taken from our 2008 opinion addressing 

Amaya’s first motion for postconviction relief.2

When police arrived at Fhuere’s home on July 16, 

1998, they found Long attempting to resuscitate her. 

Fhuere had been beaten and sexually assaulted, and her 

throat had been slashed. There was a severe bite mark on 

her left thigh. Fhuere was pronounced dead at the scene, 

and a pathologist later determined that she died as the 

result of either the slash wound or the beating.

Long was interviewed several times over the next 

hours and eventually gave a written statement to police 

dated July 16, 1998. Although there were inconsistencies in his story, he generally told officers that he and 

Amaya beat Fhuere and that Amaya slashed her throat. 

Long also told the officers where to find the knife that 

Amaya used, and he stated that Amaya had bitten Fhuere 

during the assault. A forensic dentist later matched the 

bite mark to a dental impression of Amaya’s teeth. 

DNA testing established the presence of Fhuere’s blood 

on Amaya’s shoe. Amaya wrote letters confessing to 

the crimes.

Both Long and Amaya were charged with first degree 

murder. Amaya was also charged with use of a deadly 

weapon to commit a felony and first degree sexual 

assault. Long entered into a plea agreement with the 

State. In exchange for his testimony against Amaya, the 

charges against Long were reduced to aiding and abetting 

second degree murder and aiding and abetting first degree 

2 State v. Amaya, 276 Neb. 818, 758 N.W.2d 22 (2008).
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sexual assault. Long was sentenced to 25 years’ to life 

imprisonment on the murder conviction and 5 to 10 years’ 

imprisonment on the sexual assault conviction.

Amaya’s appointed trial counsel deposed Long after 

Long had entered into the plea agreement but before 

Amaya had entered his no contest pleas. The deposition 

revealed that Long had significant drug, alcohol, and 

mental health issues that began in his early teens and 

continued at the time of the deposition. It also revealed 

that he had given several statements about Fhuere’s death 

to the police and that, in general, each succeeding statement tended to mitigate his culpability and exaggerate 

Amaya’s. Long stated during this deposition that the 

written statement he had given to police on July 16, 

1998, was truthful. He also stated, however, that he was 

extremely intoxicated the night of the murder and that 

some of the details in the statement were not correct. He 

admitted that he had also told officers that evening that 

he had blacked out and could not remember everything 

that had happened.

After Long had been deposed, and after being fully 

advised of his rights, Amaya entered the no contest pleas 

in exchange for the State’s agreement not to seek the 

death penalty or introduce evidence of aggravating circumstances. Prior to entering the pleas, Amaya wrote a 

letter to his attorneys expressing his desire to avoid the 

death penalty. The pleas were entered on October 19, 

1999, and Amaya was sentenced on November 19.3

Amaya was sentenced to life imprisonment on the first degree 

murder conviction and to consecutive prison sentences of 10 to 

20 years on the use of a deadly weapon conviction and 20 to 

40 years on the first degree sexual assault conviction. He did 

not file a direct appeal.

3 Id. at 819-20, 758 N.W.2d at 25-26.
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2. Motion for DNA Testing

In September 2017, Amaya filed a pro se motion asking 

the court to order DNA testing of numerous items of evidence 

under the DNA Testing Act and seeking the appointment of 

counsel. The court appointed counsel, who revised the pro se 

motion and successfully moved the court to authorize testing 

on swabs taken from (1) the bite mark on Fhuere’s thigh, (2) 

the handle of the knife allegedly used to slash Fhuere’s throat, 

(3) the mouth area of the beer bottle in which the knife was 

allegedly stored for disposal, and (4) the mouth area of a beer 

bottle found on the front porch of Fhuere’s home.

All of the DNA test results generated a DNA profile consist

ent with a mixture of two individuals. Results from the bite 

mark showed the major DNA profile matched Amaya, and 

therefore, Amaya was not excluded as the major contributor. 

The probability of an unrelated individual matching the major 

DNA profile was 1 in 1.55 octillion. The minor profile from 

the bite mark was consistent with Fhuere. Results from the 

knife handle and from the mouth of the beer bottle in which 

the knife was stored showed the major DNA profile matched 

Fhuere, and results concerning the minor contributor were 

inconclusive due to limited information. Results from the 

mouth of the beer bottle found on the porch showed the major 

DNA profile matched Long, and results concerning the minor 

contributor were inconclusive due to limited information.

After receiving the DNA test results, the State moved to 

dismiss the proceeding,4 alleging the results neither exonerated nor exculpated Amaya. At the evidentiary hearing on the 

motion to dismiss, Amaya claimed the test results entitled him 

to relief, and he asked the court to either (1) vacate his convictions and release him from custody, (2) allow him to withdraw 

his no contest pleas and proceed to trial, or (3) resentence him 

on the same convictions.

4 See, State v. Poe, 271 Neb. 858, 717 N.W.2d 463 (2006); State v. Bronson, 

267 Neb. 103, 672 N.W.2d 244 (2003).
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The district court granted the State’s motion to dismiss. It 

found that the DNA test results did not exonerate or exculpate 

Amaya and that he was not entitled to release or to a new trial. 

The court did not directly address Amaya’s arguments that he 

should be resentenced or allowed to withdraw his pleas. Amaya 

filed this timely appeal.

II. ASSIGNMENT OF ERROR

Amaya assigns, restated, that the district court erred in 

granting the State’s motion to dismiss.

III. STANDARD OF REVIEW

[1] A motion to dismiss a proceeding under the DNA Testing 

Act after testing has been completed is addressed to the discretion of the trial court, and unless an abuse of discretion is 

shown, the trial court’s determination will not be disturbed.5

[2] An appellate court will uphold a trial court’s findings of 

fact related to a motion for DNA testing unless such findings 

are clearly erroneous.6

[3] Statutory interpretation presents a question of law, which 

an appellate court reviews independently of the lower court’s 

determination.7

IV. ANALYSIS

In arguing it was error for the district court to grant the 

State’s motion to dismiss, Amaya presents three alternative 

theories. First, he argues the DNA test results completely 

exonerated and exculpated him so his convictions should have 

been vacated and he should have been released. Alternatively, 

Amaya argues he should have been allowed to withdraw his 

pleas, because if he had known the DNA test results, he would 

not have entered his pleas and would have insisted on going 

to trial. Finally, he argues that even if the DNA test results 

5 See Poe, supra note 4.

6 State v. Ildefonso, 304 Neb. 711, 936 N.W.2d 348 (2019).

7 State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019).
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did not support vacating his convictions or allowing him to 

withdraw his pleas, the test results entitle him to the relief 

of resentencing.

Before addressing Amaya’s arguments, we review the legal 

framework of the DNA Testing Act.

1. DNA Testing Act

[4] Section 29-4120(1) of the act provides that a person 

“in custody pursuant to the judgment of a court may, at any 

time after conviction,” file a motion requesting DNA testing. 

This court has previously held the DNA Testing Act does not 

exclude defendants such as Amaya who were convicted based 

on a plea.8

Section 29-4120 sets out what a defendant must do to obtain 

DNA testing. We have explained:

“The initial step toward obtaining relief under the DNA 

Testing Act is for a person in custody to file a motion 

requesting forensic DNA testing of biological material. 

. . . Forensic DNA testing is available for any biological 

material that is related to the investigation or prosecution 

that resulted in the judgment; is in the actual or constructive possession of the state, or others likely to safeguard 

the integrity of the biological material; and either was not 

previously subjected to DNA testing or can be retested 

with more accurate current techniques.”9

If these threshold criteria are met, and if the court finds that 

“testing may produce noncumulative, exculpatory evidence 

relevant to the claim that the person was wrongfully convicted 

or sentenced,”10 then under § 29-4120(5) the court “shall order 

DNA testing.” But a court is not required to order postconviction DNA testing if such testing would not produce exculpatory 

8 See State v. Winslow, 274 Neb. 427, 740 N.W.2d 794 (2007).

9 State v. Myers, 301 Neb. 756, 762, 919 N.W.2d 893, 897 (2018), quoting 

State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004). See § 29-4120(1).

10 § 29-4120(5).
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evidence.11 The act defines “exculpatory evidence” as “evidence which is favorable to the person in custody and material 

to the issue of the guilt of the person.”12

In this case, the court ordered DNA testing on four items 

of evidence and no party contends it was error to order the 

testing. We therefore move on to the procedure to be followed 

once the DNA test results are complete.

Under § 29-4123(2), the test results must be disclosed to 

the county attorney and to the person who requested the testing and his or her attorney. After receiving the test results, 

either party may request a hearing on whether the results 

“exonerate or exculpate the person.”13 Following such a hearing, the court may, on its own or on the motion of either party, 

“vacate and set aside the judgment and release the person 

from custody based upon final testing results exonerating or 

exculpating the person.”14 If the court does not vacate and set 

aside the conviction, then § 29-4123(3) provides that “any 

party may file a motion for a new trial under sections 29-2101 

to 29-2103.”

As for when a court may vacate a conviction and release the 

person under § 29-4123(2), and when it may order a new trial 

under § 29-4123(3), we have explained:

“[T]he court may vacate and set aside the judgment in 

circumstances where the DNA testing results are either 

completely exonerative or highly exculpatory—when the 

results, when considered with the evidence of the case 

which resulted in the underlying judgment, show a complete lack of evidence to establish an essential element of 

the crime charged. . . . This requires a finding that guilt 

cannot be sustained because the evidence is doubtful in 

11 Ildefonso, supra note 6.

12 § 29-4119.

13 § 29-4123(2).

14 Id.
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character and completely lacking in probative value. . . . 

[I]n other circumstances where the evidence is merely 

exculpatory, the court may order a new trial if the newly 

discovered exculpatory DNA evidence is of such a nature 

that if it had been offered and admitted at the former 

trial, it probably would have produced a substantially 

different result.”15

Here, after the DNA test results were obtained, Amaya did 

not move for a hearing.16 Instead, the State sought to dismiss 

the DNA testing proceeding, arguing the results of the DNA 

testing did not exonerate or exculpate Amaya and he was not 

entitled to relief. At the hearing on that motion, Amaya orally 

argued that the DNA test results were exculpatory and his 

convictions should be vacated or, alternatively, that the results 

entitled him to either withdraw his pleas or be resentenced. 

The court granted the State’s motion to dismiss. We review its 

factual findings for clear error17 and its decision for an abuse 

of discretion.18

2. Amaya’s Arguments

Amaya argues, summarized, that his plea-based convictions 

were largely based on Long’s anticipated testimony against 

him. He contends the DNA test results “provide powerful 

scientific evidence demonstrating that Long was lying.”19

He focuses primarily on the test results from the mouth of 

the beer bottle found on the porch, as well as on the test 

results from the knife and the beer bottle in which the knife 

was disposed.

15 Myers, supra note 9 at 764-65, 919 N.W.2d at 898, quoting Buckman, 

supra note 9.

16 See § 29-4123(2).

17 See Ildefonso, supra note 6.

18 See Poe, supra note 4.

19 Brief for appellant at 18.
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(a) Beer Bottle From Porch

Amaya argues the test results from the beer bottle on the 

porch “conclusively show that Long lied about the consumption of alcohol at the Fhuere residence.”20 His logic in this 

regard is not obvious, so we provide additional facts.

Amaya explains that in a 1999 deposition, Long testified 

that he was drinking beer on the night of the crime and that 

he brought the beer with him from his own house. According 

to Amaya, the evidence inventory completed by police shows 

that the beer bottle that was found to have Long’s DNA 

on the mouth area was the same brand, and from the same 

batch, as 54 other bottles of beer found at Fhuere’s residence. Amaya thus suggests the DNA test results show that 

Long did not bring that beer bottle from his own home and 

“firmly establish that Long was lying.”21 Amaya posits that if 

Long lied about bringing the beer, it “casts a cloud of 

suspicion”22 on the credibility of his other statements concerning the crimes.

With respect to this test result, the district court found:

The major DNA profile from this sample matches the 

co-Defendant, . . . Long. The results concerning the 

minor contributor [were] inconclusive, due to limited 

information. However, this information, when considered 

with the other evidence of the case, is doubtful in character and lacks, in this Court’s opinion, tangible probative value.

The court’s findings are fully supported by the record and are 

not clearly erroneous.

(b) Knife and Beer Bottle

Amaya argues the test results on the handle of the knife 

and the mouth of the beer bottle in which it was found “fail 

20 Id. at 25.

21 Id. at 18.

22 Id. at 31.
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to support any claims Long made about Amaya handling the 

knife during and after the murder.”23 He points out the test 

results showed Fhuere was the major contributor of the DNA 

found on the knife handle and on the mouth of the beer bottle, 

and he suggests this “directly contradicts the narrative of Long 

which has Amaya grasping that knife to cut Fhuere’s throat, 

handling that knife by placing it in a beer bottle, and throwing that beer bottle out of a car near 7th and Adams Streets in 

North Platte.”24

With respect to these test results, the district court found:

The material tested from the black-handled knife [and] 

the mouth area of the beer bottle found . . . in the area of 

7th and Adams streets in North Platte conclude[s] that the 

major DNA profile from each of these specimens matches 

[Fhuere]. No other minor DNA contributors were identified, “due to limited information.”

The court’s factual findings are fully supported by the record 

and are not clearly erroneous.

3. Results Did Not Exonerate Amaya

Amaya contends that the DNA testing on the beer bottles 

and the knife handle discredited Long’s veracity and that the 

court should have vacated his convictions and released him 

from custody. We disagree.

[5] Section 29-4123(2) allows a court to vacate the judgment 

and release the person from custody only when the DNA test 

results “exonerate or exculpate the person.” The district court 

did not abuse its discretion in finding that threshold was not 

met here.

First, it is questionable whether the DNA test results implicate Long’s veracity at all. It stretches logic to suggest the 

test results from the beer bottle found on the porch prove 

that Long lied about bringing his own beer that evening. And 

23 Id. at 25.

24 Id. at 19.
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contrary to Amaya’s contention, the absence of his DNA on 

the knife or the beer bottle in which it was disposed does not 

“directly contradict[]” Long’s assertions that Amaya slashed 

Fhuere’s throat and disposed of the knife in the beer bottle, 

particularly where the results were inconclusive as to the 

minor contributor.

We have recognized that if DNA testing does not detect 

the presence of a prisoner’s DNA on an item of evidence, 

such a result is at best inconclusive, especially when there 

is other credible evidence tying the defendant to the crime.25

Here, there was plenty of other credible evidence pointing to 

Amaya’s involvement in the crimes.

The DNA test results of the bite mark on the victim’s thigh 

corroborated the forensic dentist’s opinion matching the bite 

mark to Amaya, and also corroborated Long’s testimony that 

Amaya had bitten Fhuere during the assault. Earlier DNA 

testing showed Fhuere’s blood was on Amaya’s shoe. And 

perhaps the most credible evidence tying Amaya to the crimes 

were letters he wrote from jail confessing to involvement in 

Fhuere’s murder.

Moreover, even if the test results could be understood 

to call Long’s credibility into question, the record shows 

that, at the time he entered his pleas, Amaya already had 

reason to question Long’s credibility. He knew Long had 

given police inconsistent accounts of what happened the evening of the crimes, and his attorney had deposed Long and 

acquired additional information relevant to Long’s credibility. Because significant questions as to Long’s veracity and 

credibility already existed at the time Amaya chose to enter 

his pleas, we do not see how the DNA test results revealed 

anything new.

[6] When DNA test results are either inculpatory, inconclusive, or immaterial to the issue of a person’s guilt, the results 

will not entitle the person to relief under the DNA Testing 

25 See Ildefonso, supra note 6.
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Act. On this record, the DNA test result on the bite mark 

was inculpatory and unfavorable to Amaya and the remaining testing was either inconclusive or immaterial to the issue 

of his guilt. The district court did not abuse its discretion in 

concluding Amaya was not entitled to have his convictions 

vacated, because the DNA test results were neither exonerative 

nor exculpatory.26

4. Resentencing Is Not Remedy 

Under DNA Testing Act

Alternatively, Amaya asks us to remand this matter to the 

district court with instructions to “consider whether Amaya 

was wrongfully sentenced.”27 He argues the DNA test results 

“establish that Long had substantially less credibility than was 

apparent at the time of sentencing,”28 and he suggests that if 

the sentencing court had been aware of the test results, “different and more favorable sentences would have been given.”29

Because we conclude the DNA Testing Act does not authorize 

the relief of resentencing, we reject Amaya’s argument without 

addressing his reasoning.

[7] As noted, there are two remedies available under the 

DNA Testing Act. Those remedies are set out in § 29-4123(2) 

and (3), and they include, respectively, either vacating and setting aside the judgment and releasing the defendant from custody or requesting a new trial. As we explain more fully below, 

resentencing is not among the statutory remedies enacted by 

the Legislature, and we decline Amaya’s invitation to judicially 

expand the act to include such relief.

Amaya asks us to find that resentencing must be a remedy 

under the act, because § 29-4120(5)(c) allows a court to order 

DNA testing if it “may produce noncumulative, exculpatory 

26 See § 29-4123(2).

27 Brief for appellant at 17.

28 Id. at 20.

29 Id. at 21.
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evidence relevant to the claim that the person was wrongfully 

convicted or sentenced.” This is the only time the DNA Testing 

Act mentions “sentencing,” and it is significant that the reference is contained only in the section of the act governing when 

testing can be ordered, and not in the later section governing 

available relief.

[8-10] Basic principles of statutory interpretation require a 

court to give statutory language its plain and ordinary meaning.30 In discerning the meaning of a statute, a court must 

determine and give effect to the purpose and intent of the 

Legislature as ascertained from the entire language of the 

statute considered in its plain, ordinary, and popular sense.31

Additionally, when interpreting a statute, a court must give 

effect, if possible, to all the several parts of a statute and no 

sentence, clause, or word should be rejected as meaningless or 

superfluous if it can be avoided.32

We have recognized that the DNA Testing Act imposes a 

relatively low threshold for those seeking to obtain testing of 

biological material, but once the testing is complete, the act 

imposes a much more rigorous standard for obtaining relief.33

It is a given that, under such a scheme, far more people will 

be entitled to ask for DNA testing under the act than will ultimately be entitled to relief under the act.

Giving the statutory language its plain and ordinary meaning, we find that the phrase in § 29-4120(5)(c) referring to a 

“claim that the person was wrongfully convicted or sentenced” 

describes the type of claim that may entitle a movant to 

request DNA testing when the other statutory criteria are met, 

but the phrase has no impact on the type of relief the movant 

is ultimately entitled to under § 29-4123 of the act.

30 Lovvorn, supra note 7.

31 See Bridgeport Ethanol v. Nebraska Dept. of Rev., 284 Neb. 291, 818 

N.W.2d 600 (2012).

32 See State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019).

33 See, § 29-4120; Myers, supra note 9.
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[11] As stated, the DNA Testing Act authorizes just two 

forms of relief: (1) complete exoneration and vacation of judgment and release from custody or (2) the opportunity to file 

a motion for new trial.34 Resentencing, absent a successful 

motion for new trial under § 29-4123(3), is not a form of relief 

available under the act. The district court did not err in not 

considering resentencing in this proceeding.

5. Withdrawal of Plea Not Remedy 

Under DNA Testing Act

Finally, Amaya argues that if he had known about the DNA 

test results before he entered his pleas, he would have insisted 

on going to trial. His argument is, again, generally premised on 

an assertion that the DNA test results negated Long’s credibility—an assertion we already have rejected.

[12] But more importantly, the relief of withdrawing a guilty 

or no contest plea is not an available remedy under the DNA 

Testing Act. As already explained, the act authorizes a district 

court to “vacate and set aside the judgment and release the person from custody based upon final testing results exonerating 

or exculpating the person.”35 And if that relief is not granted, 

the act provides that “any party may file a motion for a new 

trial under sections 29-2101 to 29-2103.”36 The plain language 

of the act does not authorize a court to find that, based on DNA 

test results, a defendant’s plea-based conviction can be set 

aside, the plea withdrawn, and a new trial held.

For the sake of completeness, we note that Amaya’s counsel 

insisted during oral argument that his client’s request to withdraw his pleas should not be construed as a motion for new 

trial under § 29-4123(3). This is consistent with the position 

he took before the district court on the motion to dismiss. We 

thus express no opinion on whether a person whose conviction 

34 § 29-4123.

35 § 29-4123(2).

36 § 29-4123(3).
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is plea based can, after DNA testing results are obtained, 

move for a new trial under § 29-4123(3) and Neb. Rev. Stat. 

§§ 29-2101 to 29-2103 (Reissue 2016).37

V. CONCLUSION

The district court’s factual findings were not clearly erroneous, and it did not abuse its discretion in granting the 

State’s motion to dismiss. The judgment of the district court 

is affirmed.

Affirmed.

Freudenberg, J., not participating.

37 Compare State v. Daly, 227 Neb. 633, 418 N.W.2d 767 (1988) (holding 

acceptance of guilty plea constitutes verdict of conviction under statute 

regarding new trials), and State v. Kluge, 198 Neb. 115, 251 N.W.2d 737 

(1977) (motion for new trial on ground of newly discovered evidence not 

appropriate where defendant enters plea and thus waives all defenses to 

crime charged), disapproved on other grounds, State v. Minshall, 227 Neb. 

210, 416 N.W.2d 585 (1987).