State v. Muratella , 314 Neb. 463 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. MURATELLA
Cite as 314 Neb. 463State of Nebraska, appellee, v.
Gabriel R. Muratella, appellant.
___ N.W.2d ___
Filed June 9, 2023. No. S-22-332.
1. Judgments: Statutes: Appeal and Error. To the extent an appeal calls
for statutory interpretation or presents questions of law, an appellate
court must reach an independent conclusion irrespective of the determi-
nation made by the court below.
2. Motions for New Trial: Appeal and Error. The abuse of discretion
standard of review applies to appeals from motions for new trial denied
after an evidentiary hearing.
3. Postconviction: Pleas. Whether the common-law procedure for with-
drawing a plea after conviction is available presents a question of law.
4. Motions for New Trial: Pleas. Accepted pleas that result in an adjudg-
ment of guilty are “verdicts of conviction” under Neb. Rev. Stat.
§ 29-2101 (Reissue 2016).
5. Motions for New Trial. To be granted a new trial, Neb. Rev. Stat.
§ 29-2101 (Reissue 2016) requires that the enumerated grounds materi-
ally affect the defendant’s substantial rights.
6. Postconviction: Pleas: Proof. The unavailability of the Nebraska
Postconviction Act is a material element that must be pled and proved
by a defendant seeking to use the procedure for withdrawing a plea
after conviction.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
Joe Nigro, Lancaster County Public Defender, and Chelsie
E. Krell for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
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STATE V. MURATELLA
Cite as 314 Neb. 463Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
Gabriel R. Muratella appeals from the district court’s over-
ruling of his motion for new trial under Neb. Rev. Stat.
§§ 29-2101 to 29-2103 (Reissue 2016) and his motion to with-
draw his plea under our common-law procedure recognized
in State v. Gonzalez. 1 Because Muratella failed to satisfy the
requirements for such relief, we affirm.
FACTUAL BACKGROUND
In 2019, Muratella pleaded no contest 2 and was adjudged
guilty of one count of attempted delivery or possession with
intent to deliver a controlled substance (methamphetamine), a
Class IIA felony. 3 Muratella was sentenced to a term of impris-
onment of 8 to 12 years.
The factual basis presented at Muratella’s plea hearing
included that an officer observed an unknown male ask a ship-
ping store clerk for an earbud case and that when the officer
identified himself as law enforcement, the unknown male
left the area. The officer then opened the earbud case and
observed what he immediately identified as suspected meth-
amphetamine. The officer obtained a preliminary weight of
the suspected methamphetamine of approximately 18 grams,
which in the officer’s experience would be more consistent
with dealer quantities than that of methamphetamine users.
The officer conducted a field test, and the suspected meth-
amphetamine yielded a positive result for methamphetamine.
After conducting research, the officer identified Muratella as
the unknown male.
1
State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013).
2
See Neb. Rev. Stat. § 29-1819.01 (Reissue 2016).
3
See Neb. Rev. Stat. §§ 28-416 and 28-201 (Cum. Supp. 2022).
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STATE V. MURATELLA
Cite as 314 Neb. 463The State’s factual basis also included that Muratella told
his probation officer that “the methamphetamine belonged to
a friend” and that he went to retrieve the earbud case “after
the friend told him that drugs were contained in the case.”
The crime laboratory for the Nebraska State Patrol (NSP) later
tested the suspected methamphetamine found in the earbud
case, which was confirmed as methamphetamine with a total
net weight of 16.636 grams.
In 2022, in response to the indictment of NSP evidence tech-
nician Anna Idigima, 4 Muratella applied for a new trial on six
enumerated grounds under § 29-2101 and moved to withdraw
his plea. The district court held a hearing on both motions.
In support of his motions, Muratella offered, and the court
received, an affidavit from his counsel, a chain of custody
report for the seized substance, a copy of Idigima’s indictment,
and an NSP report regarding the seized substance.
The affidavit set forth that Muratella learned that Idigima
was federally indicted as a result of an investigation into the
theft and distribution of drugs that she had access to during
the course and scope of her employment duties at the NSP
crime laboratory. Muratella first received notice of Idigima’s
involvement in his case in November 2021 and immediately
commenced discussions with the State to discover the extent
and effect of Idigima’s conduct on his case. In early January
2022, Muratella received an NSP chain of custody report
for the seized methamphetamine from the State. The parties
agreed that Idigima “was in the direct line of the chain of
custody and a necessary and material witness” in the State’s
case. It was the State’s “understanding” that the methamphet-
amine evidence was not missing and remained in NSP custody.
The affidavit also set forth that Muratella would not have
4
See, also, State v. Osborne, 313 Neb. 726, 986 N.W.2d 65 (2023) (holding
absence of testimony by Idigima was not fatal to establishing chain of
custody); State v. Blocher, 313 Neb. 699, 986 N.W.2d 275 (2023) (holding
generalized statement in abstract about effect of misconduct by Idigima in
chain of custody insufficient to warrant new trial).
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STATE V. MURATELLA
Cite as 314 Neb. 463pleaded no contest had he known about the issue regarding the
chain of custody due to Idigima’s indictment.
The chain of custody report showed that Idigima was
responsible for the seized methamphetamine in Muratella’s
case. Idigima’s indictment showed she was indicted related to
the distribution and possession with intent to distribute con-
trolled substances “[b]eginning on or about June 1, 2021, and
continuing to on or about September 23, 2021 . . . .” The NSP
report showed that the officer who recovered the earbud case
submitted the contents to the NSP crime laboratory for weigh-
ing and identification and that the laboratory confirmed the
substance to be methamphetamine.
Muratella argued that six separate grounds set forth in
§ 29-2101 warranted the grant of a new trial. In sum, Muratella
asserted that the chain of custody issue amounted to (1) an
irregularity in the proceedings of the witnesses for the State,
which prevented him from having a fair trial; 5 (2) misconduct
of a witness for the State; 6 (3) surprise which ordinary pru-
dence could not have guarded against; 7 (4) an insufficiency
of evidence that did not sustain the verdict; 8 and (5) newly
discovered evidence material to the State’s case, the full extent
of which cannot be known. 9 Muratella also asserted that (6) the
acceptance of his plea amounted to an error of law. 10
In addition, Muratella argued that he satisfied the require-
ments to withdraw his plea of no contest because his plea was
not made voluntarily, knowingly, or intelligently. Muratella
asserted that when he entered his plea, he believed the
State could prove its case against him and was unaware
that neither the chain of evidence nor sufficient foundation
5
See § 29-2101(1).
6
See § 29-2101(2).
7
See § 29-2101(3).
8
See § 29-2101(4).
9
See § 29-2101(5).
10
See § 29-2101(7).
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STATE V. MURATELLA
Cite as 314 Neb. 463could be established for the evidence to be received at a trial.
Muratella contended that “[a] constitution[al] right or rights
[were] at issue, i.e., due process among others.”
The State did not oppose either of Muratella’s motions. The
State did not dispute that Idigima was solely responsible for
the custody and control of the seized methamphetamine and
that she would be a material and necessary witness for the
State to establish a chain of custody for the evidence to be
admissible at trial.
The district court issued an order overruling Muratella’s
motions. Regarding his motion for new trial, the court noted a
potential inconsistency in our case law. 11 Still, it reasoned that
defendants who pleaded guilty or no contest could not move
for a new trial because they waived all defenses to the charged
crime and their right to trial. In the alternative, the district
court determined that Muratella’s motion for a new trial failed
on its merits because the newly discovered evidence related to
Idigima amounted only to impeachment evidence. The court
did not address the other grounds that Muratella asserted war-
ranted him a new trial.
In overruling Muratella’s motion to withdraw his plea, the
court determined that Muratella did not make the requisite
showings that we have held are necessary precursors to with-
drawing a plea under our common-law procedure. The district
court concluded that under that framework, Muratella was not
entitled to withdraw his plea because he failed to show why
the Nebraska Postconviction Act was unavailable to him.
Muratella timely filed a notice of appeal for both motions.
Before filing his brief on appeal, Muratella filed a motion
11
Compare State v. Kluge, 198 Neb. 115, 251 N.W.2d 737 (1977) (stating
motion for new trial on ground of newly discovered evidence is not
appropriate where defendant has entered plea of guilty or no contest),
disapproved on other grounds, State v. Minshall, 227 Neb. 210, 416
N.W.2d 585 (1987), with State v. Daly, 227 Neb. 633, 634, 418 N.W.2d
767, 769 (1988) (stating entered judgment of conviction based on accepted
guilty plea constitutes “verdict of conviction”).
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STATE V. MURATELLA
Cite as 314 Neb. 463for leave to proceed in forma pauperis on appeal. Muratella’s
former counsel filed a motion to withdraw as his counsel. The
district court sustained both motions and appointed Muratella
counsel on appeal. We moved his appeal to our docket. 12
ASSIGNMENTS OF ERROR
Muratella assigns, renumbered and restated, that the district
court erred in (1) overruling his motion for a new trial and
(2) overruling his motion to withdraw his plea of no contest.
Additionally, Muratella assigns that (3) if the proper avenue for
relief was under the Nebraska Postconviction Act, his counsel
was ineffective for failing to seek such relief.
STANDARD OF REVIEW
[1] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below. 13
[2] The abuse of discretion standard of review applies to
appeals from motions for new trial denied after an evidentiary
hearing. 14 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. 15
[3] Whether the common-law procedure for withdrawing
a plea after conviction, recognized in State v. Gonzalez, 16 is
available presents a question of law. 17
12
See, Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022); Neb. Ct. R. App. P.
§ 2-102(C) (rev. 2022).
13
State v. Moore, 312 Neb. 263, 978 N.W.2d 327 (2022).
14
State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).
15
State v. Worthman, 311 Neb. 284, 971 N.W.2d 785 (2022).
16
State v. Gonzalez, supra note 1.
17
State v. Jerke, 302 Neb. 372, 923 N.W.2d 78 (2019).
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STATE V. MURATELLA
Cite as 314 Neb. 463ANALYSIS
New Trial
Muratella makes two arguments in support of his assign-
ment that the district court erred in overruling his motion for
new trial. First, he argues that he was not precluded from
applying for a new trial under § 29-2101 due to his plea of no
contest. Muratella also argues that his motion was supported
by more than just newly discovered impeachment evidence.
The State disagrees and instead contends that Muratella could
not move for a new trial because he did not have a trial in the
first instance. In addition, the State concedes that Muratella
moved for a new trial on several grounds under § 29-2101 but
contends that “the sole factual basis for the motion was the
alleged newly discovered evidence regarding Idigima.” 18
The grounds for a new criminal trial are governed by
§ 29-2101, which states:
A new trial, after a verdict of conviction, may be
granted, on the application of the defendant, for any of
the following grounds affecting materially his or her
substantial rights: (1) Irregularity in the proceedings of
the court, of the prosecuting attorney, or of the witnesses
for the state or in any order of the court or abuse of
discretion by which the defendant was prevented from
having a fair trial; (2) misconduct of the jury, of the
prosecuting attorney, or of the witnesses for the state; (3)
accident or surprise which ordinary prudence could not
have guarded against; (4) the verdict is not sustained by
sufficient evidence or is contrary to law; (5) newly dis-
covered evidence material for the defendant which he or
she could not with reasonable diligence have discovered
and produced at the trial; (6) newly discovered exculpa-
tory DNA or similar forensic testing evidence obtained
under the DNA Testing Act; or (7) error of law occurring
at the trial.
18
Brief for appellee at 12.
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STATE V. MURATELLA
Cite as 314 Neb. 463[4] We have long recognized that when a guilty or no
contest plea is accepted and the court enters a judgment of
conviction thereon, that is a “verdict of conviction” for the
purposes of a motion for a new trial. 19 In Nebraska, histori-
cally, a defendant who entered a plea of guilty or no contest
was, in most cases, required to file an application for new
trial for any assignments of error to be considered on direct
appeal. 20 But in 1982, the Legislature modified our treat-
ment of a motion for new trial as a prerequisite to appel-
late review. 21 Despite those changes, the Legislature did not
amend, nor has it since, the meaning of “verdict of convic-
tion” under § 29-2101. Where a statute has been judicially
construed and that construction has not evoked an amend-
ment, it will be presumed that the Legislature has acquiesced
in the court’s determination of the Legislature’s intent. 22
Accordingly, we adhere to that precedent and continue to
recognize that accepted pleas that result in an adjudgment of
guilty are “verdicts of conviction” under § 29-2101.
[5] Although Muratella is not precluded from applying for
a new trial because of his no contest plea, his plea does
affect the determination of whether a new trial should be
19
See State v. Daly, supra note 11. See, also, e.g., State v. Beans, 199 Neb.
807, 261 N.W.2d 749 (1978) (plea of guilty); State v. Svoboda, 194 Neb.
663, 234 N.W.2d 901 (1975) (plea of no contest); State v. Banse, 184 Neb.
534, 169 N.W.2d 294 (1969) (plea of no contest); State v. Hylton, 175
Neb. 828, 124 N.W.2d 230 (1963) (plea of no contest); Wolff v. State, 172
Neb. 65, 108 N.W.2d 410 (1961) (plea of guilty).
20
See, e.g., State v. Price, 198 Neb. 229, 252 N.W.2d 165 (1977) (plea of
guilty); State v. Griger, 190 Neb. 405, 208 N.W.2d 672 (1973) (plea of
guilty).
21
See 1982 Neb. Laws, L.B. 720, § 1 (codified at Neb. Rev. Stat. § 25-1912.01(Reissue 2016)). See, also, State v. Wright, 220 Neb. 847, 374 N.W.2d 26(1985). Accord, State v. Turner, 221 Neb. 132, 375 N.W.2d 154 (1985);
State v. Potter, 220 Neb. 866, 374 N.W.2d 27 (1985).
22
State v. Webb, 311 Neb. 694, 974 N.W.2d 317 (2022). See State v.
Chapman, 307 Neb. 443, 949 N.W.2d 490 (2020) (adhering to construction
of speedy trial statutes).
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Cite as 314 Neb. 463granted. To be granted a new trial, the plain language of
§ 29-2101 requires that the enumerated grounds materially
affect the defendant’s substantial rights. When entering a plea
of guilty or no contest, a criminal defendant waives various
rights. For example, as we have repeatedly held, the voluntary
entry of a guilty plea or a plea of no contest waives every
defense to the charged crime. 23 For that reason, we have said
that a motion for new trial on the ground of newly discovered
evidence is not appropriate where a defendant has entered a
plea of guilty or no contest. 24 Further, we note that the plain
language of § 29-2101 limits the applicability of certain enu-
merated grounds to those cases where a trial occurred.
We need not address the applicability of each ground
asserted by Muratella to resolve this appeal because Muratella
has failed to show how Idigima’s indictment materially
affected his substantial rights. Muratella contends that his
right to trial by jury was compromised because Idigima’s
indictment destroyed the chain of custody for the seized meth-
amphetamine. We find no merit to Muratella’s contention that
Idigima’s presence in the chain of custody of the methamphet-
amine evidence would have materially affected his substantial
rights, even if a trial occurred after her indictment.
As we recently discussed in State v. Osborne, 25 our prec-
edent does not require that every person who has played a role
in the chain of custody must testify. In determining the admis-
sibility of physical evidence, the focus is on whether the com-
plete chain of custody has been established and whether it has
been shown to the satisfaction of the court that the object is
in substantially the same condition as it was at the relevant
time and that no substantial change has taken place in the
evidence so as to render it misleading. 26 Based on the record
23
See State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019).
24
See State v. Kluge, supra note 11.
25
State v. Osborne, supra note 4.
26
See id.- 472 -
Nebraska Supreme Court Advance Sheets
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STATE V. MURATELLA
Cite as 314 Neb. 463before us, we cannot say that the absence of testimony by
Idigima would have been fatal to the establishment of the chain
of custody in Muratella’s case.
Insofar as Muratella contends that Idigima’s indictment
results in a deficient factual basis for his plea, the factual
basis shows ample other evidence of Muratella’s guilt to sup-
port his conviction. Nothing Muratella asserted in his affida-
vit has any bearing on the officer’s testimony that Muratella
attempted to obtain the earbud case, the officer’s identifica-
tion of the methamphetamine, its preliminary weight, the
positive field test, or the admissions Muratella made to his
probation officer.
Further, to the extent Muratella asserts he had a right to
know of the chain of custody issue when he entered his plea,
he has failed to point us to any authority supporting his entitle-
ment to know of Idigima’s future indictment. When a plea is
entered in anticipation of trial, no criminal defendant, pros-
ecutor, or trial judge knows the precise evidence that would
be introduced at a future trial. We are not persuaded that
Muratella had a right to know of future events in this case. 27
Moreover, Muratella has failed to show, or even suggest, how
Idigima’s actions “[b]eginning on or about June 1, 2021,” for
which she was indicted, would have had any bearing on his
case when Muratella entered his plea in 2019.
Because Muratella failed to show that his substantial rights
were materially affected, we conclude that the district court
did not abuse its discretion when it denied Muratella’s applica-
tion for a new trial under § 29-2101.
Withdrawal of Plea and Ineffective
Assistance of Counsel
Nebraska recognizes a common-law procedure for a crimi-
nal defendant to withdraw an entered plea. 28 This procedure
27
Cf. State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021); State v.
Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002).
28
See State v. Gonzalez, supra note 1.
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STATE V. MURATELLA
Cite as 314 Neb. 463exists to safeguard a defendant’s rights in the very rare cir-
cumstance where due process principles require a forum for
the vindication of a constitutional right and no other forum
is provided by Nebraska law. 29 Accordingly, the common-law
procedure for withdrawing a plea after conviction is avail-
able only when (1) the Nebraska Postconviction Act is not,
and never was, available as a means of asserting the ground
or grounds justifying withdrawing the plea and (2) a constitu-
tional right is at issue. 30
[6] The unavailability of the Nebraska Postconviction Act is
a material element that must be pled and proved by a defend­
ant seeking to use the procedure for withdrawing a plea after
conviction recognized in State v. Gonzalez. 31 If a defendant has
a collateral attack that could be asserted under the act, that act
is his or her sole remedy. 32 Only if a defendant does not assert
and never could have asserted the basis of his or her collateral
attack under the act may he or she invoke the common-law
procedure and move to withdraw a plea after the conviction has
become final. 33
The record shows, and Muratella seems to concede on
appeal, that he failed to plead and prove that the Nebraska
Postconviction Act was unavailable to him. Therefore, the dis-
trict court correctly concluded that Muratella’s motion to with-
draw his plea should be denied. Muratella’s second assignment
of error is without merit.
Finally, Muratella requests that we find his “trial” counsel,
or more appropriately, his motion counsel, was ineffective
for seeking to withdraw his plea rather than pursuing relief
under the Nebraska Postconviction Act. But this is not a
direct appeal wherein ineffective assistance of counsel claims
29
Id.30
State v. Jerke, supra note 17; State v. Gonzalez, supra note 1.
31
State v. Jerke, supra note 17. See State v. Gonzalez, supra note 1.
32
State v. Jerke, supra note 17; State v. Gonzalez, supra note 1.
33
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STATE V. MURATELLA
Cite as 314 Neb. 463must be preserved or lost. Muratella’s appeal from the over-
ruling of his post-direct-appeal motion to withdraw his plea is
not the appropriate forum for him to allege a claim of ineffec-
tive assistance of counsel for the first time. Hence, we decline
to opine further on this assignment of error.
CONCLUSION
Because Muratella failed to satisfy the requirements for a
new trial under § 29-2101 and the common-law procedure for
withdrawing a plea after conviction, we affirm the order of the
district court overruling his motions.
Affirmed.