State v. Schurman

State of NebraSka , appellee , v.
M ichael D. SchurMaN, appellaNt.
762 N.W.2d 337
Filed March 10, 2009. 	No. A-08-383.
1. Pleas: Appeal and Error. Prior to sentencing, the withdrawal of a plea forming
the basis of a conviction is addressed to the discretion of the trial court, and its
ruling will not be disturbed on appeal absent an abuse of that discretion.
2. Pleas. After the entry of a plea of guilty or no contest, but before sentencing, a
court, in its discretion, may allow a defendant to withdraw his or her plea for any
fair and just reason, provided that the prosecution has not been or would not be
substantially prejudiced by its reliance on the plea entered.
3. Pleas: Proof. The burden is on the defendant to establish by clear and convincing
evidence the grounds for withdrawal of a plea.
4. Pleas: Appeal and Error. The right to withdraw a plea previously entered is not
absolute, and, in the absence of an abuse of discretion on the part of the trial
court, refusal to allow a defendant’s withdrawal of a plea will not be disturbed
on appeal.
Appeal from the District Court for Adams County, StepheN
r. illiNgworth, Judge, on appeal thereto from the County
Court for Adams County, Jack r. ott, Judge. Convictions and
sentences vacated. Judgment of District Court reversed and
cause remanded for further proceedings.
Michael O. Mead, of Law Offices of Richard L. Alexander,
for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
iNboDy, Chief Judge, and Moore and caSSel, Judges.
iNboDy, Chief Judge.
INTRODUCTION
Michael D. Schurman appeals the decision of the Adams
County District Court affirming the Adams County Court’s
denial of Schurman’s motion to withdraw his no contest pleas
to third degree assault and third degree domestic assault.
Schurman also claims that the district court erred in failing
to find that the sentences imposed upon him were excessive.
For the reasons set forth herein, we reverse the decision of the
STATe v. SChURMAN 	431
Cite as 17 Neb. App. 431
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

district court, vacate Schurman’s convictions and sentences,
and remand for further proceedings.
STATeMeNT OF FACTS
On August 15, 2006, Schurman was charged in Adams
County Court with third degree assault, in violation of Neb.
Rev. Stat. § 28-310 (Reissue 2008), and third degree domestic
assault, in violation of Neb. Rev. Stat. § 28-323(4) (Reissue
2008), both Class I misdemeanors. At the August 15 arraign-
ment, Schurman appeared without counsel. Schurman stated
that he did not understand the complaint but that he was “just
gonna plead guilty right now.” When asked if Schurman under-
stood the rights that were previously read, Schurman stated,
“Well, I’m not an attorney so your language is way over my
head.” however, Schurman did not want the clerk magistrate
to go over the rights a second time and stated that he did not
want an attorney and did not want an attorney appointed to
represent him.
Once the clerk magistrate explained the different pleas to
Schurman, Schurman stated that he understood and was ready
to enter pleas of no contest to both counts. Schurman entered
pleas of no contest which were accepted by the clerk magis-
trate. Following the entry of the pleas, Schurman stated that
he did not want to be considered for probation. The following
statements also occurred during the hearing:
MR. SChURMAN: I — I — Sir — I know it’s — can’t
back up now. But I don’t understand. If I would get out of
here, I can’t go get my personal belongings.
. . . .
MR. SChURMAN: I don’t understand what’s goin’
on. I’d just as soon be put inside so I can’t get in trouble
again because I don’t understand this. how do I get my
clothes?
. . . .
MR. SChURMAN: Now, can I get my furniture and
all that?
. . . .
MR. SChURMAN: Just throw me in jail, right now.
. . . .
432 	17 NeBRASkA APPeLLATe RePORTS

MR. SChURMAN: No, just take me right now.
. . . .
MR. SChURMAN: I’m all mixed up. I don’t under-
stand it. So . . . .
. . . .
MR. SChURMAN: I don’t understand. I’m lost.
. . . .
MR. SChURMAN: I know. I’m — I — I’m lost.
The COURT: have you had any mental problems in
the past that I’m not aware of?
MR. SChURMAN: No.
The COURT: No?
MR. SChURMAN: Well I’ve been in there once before
— Yeah, but it’s all — But that’s been a long time ago.
The COURT: Okay. So you’re lost because of what?
MR. SChURMAN: I’m lost because how do I get my
vehicle, how do I get my clothes, and all that stuff.
. . . .
MR. SChURMAN: See, I’m so lost, I don’t know
what’s goin’ on.
The following colloquy then occurred between the clerk magis-
trate and the county attorney:
The COURT: My question to the County Attorney:
Should I back track a little bit and just go ahead and
appoint the public defender on this so we make sure we
get this done correctly?
[County attorney]: Probably wouldn’t be a bad idea. I
guess I would ask that the Public Defender be appointed
for him, to help him in this; and then if they decide they
want to do a motion to withdraw the pleas, and then they
can worry — we can worry about that later. I think he’s
— I think he’s understood why he was here, and he made
a conscious decision to plead guilty (sic).
The clerk magistrate did appoint counsel for Schurman for
the sentencing phase of the proceedings. Counsel proceeded to
file a motion requesting that the court allow Schurman to with-
draw his no contest pleas for the reason that the pleas were not
knowingly and voluntarily made. A hearing thereon was held
on November 17, 2006, at which time the State objected to
STATe v. SChURMAN 	433
Cite as 17 Neb. App. 431

Schurman’s motion to withdraw his pleas. Schurman testified
that he did not understand what was happening to him on the
day of the pleas and did not have a thorough understanding of
what was required for him to enter his pleas. he further testi-
fied that he has been diagnosed with bipolar disorder and has
hearing loss. Schurman also testified that, the night before his
arraignment, he did not get any sleep because he was in jail,
and that although he tried to ask for a telephone call so that he
could call his lawyer, he was not allowed a telephone call.
On February 21, 2007, the county court denied Schurman’s
motion to withdraw his pleas. Thereafter, Schurman was sen-
tenced to 30 days’ imprisonment on each count with the sen-
tences ordered to be served concurrently. Schurman appealed
to the Adams County District Court, which affirmed the county
court’s denial of his motion to withdraw his pleas and the
sentences imposed upon Schurman. With regard to the county
court’s denial of Schurman’s motion to withdraw his pleas,
the district court found that “[i]t is clear from the record
[that Schurman’s] plea was freely, voluntarily and intelligently
given. [Schurman’s] confusion was on post plea issues not
related to his plea of No Contest.” Schurman has now timely
appealed to this court.
ASSIGNMeNTS OF eRROR
Schurman contends that the district court abused its discre-
tion in refusing to allow him to withdraw his no contest pleas
and in imposing excessive sentences.
STANDARD OF ReVIeW
[1] Prior to sentencing, the withdrawal of a plea forming the
basis of a conviction is addressed to the discretion of the trial
court, and its ruling will not be disturbed on appeal absent an
abuse of that discretion. State v. Williams, 276 Neb. 716, 757
N.W.2d 187 (2008); State v. Schneider, 263 Neb. 318, 640
N.W.2d 8 (2002).
ANALYSIS
Schurman first contends that the district court abused its
discretion in refusing to allow him to withdraw his no con-
test pleas.
434 	17 NeBRASkA APPeLLATe RePORTS

[2-4] After the entry of a plea of guilty or no contest, but
before sentencing, a court, in its discretion, may allow a
defendant to withdraw his or her plea for any fair and just rea-
son, provided that the prosecution has not been or would not
be substantially prejudiced by its reliance on the plea entered.
State v. Williams, supra. The burden is on the defendant to
establish by clear and convincing evidence the grounds for
withdrawal of a plea. Id. The right to withdraw a plea previ-
ously entered is not absolute, and, in the absence of an abuse
of discretion on the part of the trial court, refusal to allow
a defendant’s withdrawal of a plea will not be disturbed on
appeal. Id.
The evidence presented by Schurman in support of his
motion to withdraw his pleas establishes that he exhibited
confusion during the plea hearing and that the clerk magis-
trate acknowledged as much at the end of the hearing when he
asked the county attorney if an attorney should be appointed
for Schurman. The county attorney agreed that appointing
an attorney for Schurman would not be a bad idea and even
acknowledged that, if the attorney wanted to file a motion to
withdraw the pleas, the issue could be handled at a later time.
Schurman testified that he has been diagnosed with bipolar
disorder and has a hearing loss and that he was arrested the
day before the hearing and was not able to sleep while in
jail. Based on the record presented, Schurman established,
clearly and convincingly, that his obvious confusion during
the plea hearings, during which he was not represented by
counsel, presents serious questions as to whether Schurman’s
plea was in fact freely, voluntarily, and intelligently entered.
Further, the State would not have been substantially preju-
diced by allowing Schurman to withdraw his no contest pleas
as there was no plea agreement in this case and Schurman’s
plea occurred on the same day that the charges were filed.
Therefore, we find that the denial of Schurman’s motion
to withdraw his no contest pleas was an abuse of discre-
tion. having made this determination, we need not consider
Schurman’s claim that the sentences imposed were excessive.
Thus the decision of the district court is reversed, Schurman’s
convictions and sentences are vacated, and this cause is
STATe v. SChURMAN 	435
Cite as 17 Neb. App. 431

remanded to the district court to remand to the county court
for further proceedings.
coNvictioNS aND SeNteNceS vacateD.
reverSeD aND reMaNDeD for
further proceeDiNgS.
iN re iNtereSt of Shayla h. et al .,
chilDreN uNDer 18 yearS of age .
State of NebraSka , appellee , v.
DaviD h., appellaNt.
764 N.W.2d 119
Filed March 10, 2009. 	No. A-08-947.
1. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are reviewed de
novo on the record, and an appellate court is required to reach a conclusion inde-
pendent of the juvenile court’s findings. When the evidence is in conflict, how-
ever, an appellate court may give weight to the fact that the lower court observed
the witnesses and accepted one version of the facts over the other.
2. Indian Child Welfare Act: Pleadings. The Indian Child Welfare Act’s require-
ment of “active efforts” is separate and distinct from the “reasonable efforts” pro-
vision of Neb. Rev. Stat. § 43-292(6) (Reissue 2008) and therefore requires the
State to plead active efforts by the State to prevent the breakup of the family.
3. Appeal and Error. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues are likely to recur
during further proceedings.
Appeal 	from 	the 	Separate 	Juvenile 	Court 	of 	Lancaster
County: liNDa S. porter, Judge. Reversed and remanded for
further proceedings.
Patrick T. Carraher, of Legal Aid of Nebraska, for appellant.
Jeremy P. Lavene, Deputy Lancaster County Attorney, and
Richard Grabow, Senior Certified Law Student, for appellee.
carlSoN, Moore, and caSSel, Judges.
Moore, Judge.
INTRODUCTION
David h. appeals from an order of the separate juvenile
court of Lancaster County, adjudicating his minor children
436 	17 NeBRASkA APPeLLATe RePORTS