State v. Amaya

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/23/2020 09:09 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. AMAYA
Cite as 305 Neb. 36
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 ques-
tion 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 rem-
edies 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.
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STATE v. AMAYA
Cite as 305 Neb. 36
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 consid-
ered 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 pro-
ceeding. 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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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. AMAYA
Cite as 305 Neb. 36
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 fol-
lowing 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 inconsisten-
cies 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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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. AMAYA
Cite as 305 Neb. 36
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 state-
ment 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 cir-
cumstances. 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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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. AMAYA
Cite as 305 Neb. 36
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 exoner-
ated 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 convic-
tions 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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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. AMAYA
Cite as 305 Neb. 36
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 dis-
cretion 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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Nebraska Supreme Court Advance Sheets
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STATE v. AMAYA
Cite as 305 Neb. 36
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 construc-
tive 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 postconvic-
tion 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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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. AMAYA
Cite as 305 Neb. 36
evidence.11 The act defines “exculpatory evidence” as “evi-
dence 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 test-
ing 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 hear-
ing, 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 com-
plete 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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STATE v. AMAYA
Cite as 305 Neb. 36
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 error 17 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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Nebraska Supreme Court Advance Sheets
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STATE v. AMAYA
Cite as 305 Neb. 36
(a) Beer Bottle From Porch
Amaya argues the test results from the beer bottle on the
porch “conclusively show that Long lied about the consump-
tion 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 resi-
dence. 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 con-
cerning 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 char-
acter and lacks, in this Court’s opinion, tangible proba-
tive 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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STATE v. AMAYA
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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 throw-
ing 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 identi-
fied, “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 impli-
cate 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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STATE v. AMAYA
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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 eve-
ning of the crimes, and his attorney had deposed Long and
acquired additional information relevant to Long’s credibil-
ity. 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, inconclu-
sive, 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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STATE v. AMAYA
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Act. On this record, the DNA test result on the bite mark
was inculpatory and unfavorable to Amaya and the remain-
ing 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, “dif-
ferent 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 set-
ting aside the judgment and releasing the defendant from cus-
tody 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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STATE v. AMAYA
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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 refer-
ence 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 mean-
ing.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 ulti-
mately be entitled to relief under the act.
Giving the statutory language its plain and ordinary mean-
ing, 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 judg-
ment 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 credibil-
ity—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 per-
son 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 with-
draw 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 erro-
neous, 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).