State v. Garcia

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GARCIA
Cite as 318 Neb. 228
State of Nebraska, appellee, v.
Anthony J. Garcia, appellant.
___ N.W.3d ___
Filed December 20, 2024. 	No. S-24-113.
1. Motions for New Trial: Appeal and Error. An appellate court applies
a de novo standard when reviewing a trial court’s dismissal of a motion
for new trial without conducting an evidentiary hearing, but it applies an
abuse of discretion standard of review to appeals from motions for new
trial denied after an evidentiary hearing.
2. Criminal Law: Motions for New Trial: Evidence: Proof. When a
defendant seeks a new trial on the ground of newly discovered evidence,
the evidentiary hearing provisions of Neb. Rev. Stat. § 29-2102(2)
(Reissue 2016) are satisfied if the motion and supporting affidavits,
depositions, or oral testimony set forth sufficient facts which, if true,
establish that (1) the new evidence existed at the time of trial but could
not, with reasonable diligence, have been discovered and produced at
trial and (2) such evidence is so substantial that with it, a different ver-
dict would probably have been reached at trial.
3. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must
show that counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense.
Appeal from the District Court for Douglas County, LeAnne
M. Srb, Judge. Affirmed.
Jerry M. Hug, of Hug & Jacobs, L.L.C., for appellant.
Michael T. Hilgers, Attorney General, and Stacy M. Foust
for appellee.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:18 AM CDT

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GARCIA
Cite as 318 Neb. 228
Funke, C.J., Miller-Lerman, Cassel, Stacy, and Papik, JJ.
Papik, J.
Anthony J. Garcia, an individual convicted of four counts of
first degree murder, along with other charges, filed a motion
for new trial. He claimed that newly discovered evidence sug-
gested that he was not competent during earlier proceedings.
The district court denied the motion for new trial, and Garcia
now appeals. We affirm.
BACKGROUND
Convictions, Sentences, and Motion for New Trial.
Garcia was charged with a number of crimes arising out of
allegations that he killed two people in Omaha, Nebraska, in
2008, left the city, and then returned to kill two more people
in 2013. Charges brought by the State included four counts
of first degree murder for which the State sought the death
penalty. In October 2016, a jury found Garcia guilty of four
counts of first degree murder, four counts of use of a weapon
to commit a felony, and one count of attempted robbery. The
same jury found aggravating circumstances with respect to the
murder convictions. Following a mitigation hearing that began
nearly 2 years later in June 2018, a sentencing panel sentenced
Garcia to death on each of his four murder convictions.
We affirmed Garcia’s convictions and sentences on direct
appeal. See State v. Garcia, 315 Neb. 74, 994 N.W.2d 610
(2023). In the direct appeal, Garcia raised a number of assign-
ments of error regarding his competency during proceedings
in the district court. We found no merit to those assignments
of error.
While Garcia’s direct appeal was pending in this court, he
filed in the district court a motion for new trial pursuant to
Neb. Rev. Stat. § 29-2101(5) (Reissue 2016). Garcia’s motion
alleged that he had obtained newly discovered evidence tend-
ing to show that he was incompetent during the mitigation
hearing and that he may have been incompetent during earlier
proceedings.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GARCIA
Cite as 318 Neb. 228
Garcia’s motion began by making a number of assertions
regarding his condition during earlier proceedings in the dis-
trict court. Garcia asserted that prior to trial, he was hospital-
ized so that his competency could be evaluated, but that the
district court determined he was competent to stand trial. He
also stated that throughout the proceedings, he did not com-
municate with his lawyers or his family, and that during the
mitigation hearing, he did not wear shoes or socks, his hair
was not combed, and he sat in a wheelchair and appeared to be
asleep or unconscious.
Garcia’s motion then made assertions regarding medical
treatment he received after he was sentenced. Garcia alleged
that in January 2019, psychotropic medication was invol-
untarily injected into his body pursuant to an “Involuntary
Medication Order” because he suffered from “a serious mental
illness.” Garcia asserted that a June 2019 request to continue
the treatment noted that after the injections began, he improved
his hygiene, maintained activities of daily living, ate his meals,
interacted with prison staff, and complied with his medica-
tions. Garcia asserted in his motion that “[t]he effects of the
psychiatric medication is compelling evidence that [he] was
not competent at his mitigation hearing and he may have been
incompetent at prior proceedings including trial, in violation of
his substantial rights to due process of law . . . .” Garcia stated
that his counsel obtained records in October 2019 regarding
the involuntary medication and that his counsel could not have
reasonably discovered those records earlier.
In addition to statements regarding his mental health, the
motion for new trial made brief assertions regarding Garcia’s
ability to hear. Garcia alleged that he was examined by an
audiologist in prison on September 14, 2020, diagnosed with
“‘profound hearing loss,’” and fitted for hearing aids. The
motion stated that “[t]here is a possibility” that Garcia had
auditory processing disorder at the time of trial and sentenc-
ing, but he has not been examined for it. This disorder, accord-
ing to Garcia, would have caused him to have had issues

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GARCIA
Cite as 318 Neb. 228
processing and understanding words “even if he had the ability
to hear them.”
Attached to Garcia’s motion was an affidavit of one of his
attorneys at that time. The attorney stated, “Affiant believes
the facts set out in the foregoing motion of new trial are true.”
Hearing on Motion for New Trial.
In November 2023, about 2 months after our mandate was
issued in Garcia’s direct appeal, the district court held a hear-
ing addressing Garcia’s motion for new trial. At the hearing,
Garcia’s counsel stated that he wished to submit to the dis-
trict court exhibits that supported the affidavit attached to the
motion. Garcia’s counsel offered Garcia’s psychiatric hospital
discharge summaries from 2014 and 2016, evidence from a
2017 court hearing regarding Garcia’s competency, documen-
tation of a physician’s examination of Garcia’s hearing, and
Garcia’s medical file from prison containing records about the
involuntary medication.
The State objected to the prison medical records because
it did not believe they qualified as “newly discovered.” The
State requested that it be allowed to submit a written objection
to those exhibits, and it informed the court that it would also
be objecting to the motion for new trial, either by filing an
objection or a motion to dismiss. The district court granted the
State’s request and allowed the parties to submit simultaneous
briefs on both the exhibits and their positions on the motion.
Ultimately, Garcia submitted a brief, and the State did not.
District Court Dismissal Order.
The district court denied Garcia’s motion for new trial. In its
written order, the district court referred to the hearing above as
a “status hearing.”
The district court found that the “evidence of the 2019 medi-
cation’s efficacy is not the type of ‘newly discovered evidence’
that could entitle Garcia to a new trial” because the evidence
did not exist at the time of the 2016 trial or the 2018 mitigation
hearing. The district court further found that Garcia’s “2019

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GARCIA
Cite as 318 Neb. 228
apparent response to medication” did not disprove the trial
court’s prior findings regarding Garcia’s competency.
The district court also found Garcia’s motion for new trial
was untimely. It observed that while Garcia’s motion asserted
that his attorneys received information about the involuntary
medication’s effectiveness in October 2019, the motion was not
filed until October 2022 and contained no explanation for this
3-year delay. On this basis, the district court concluded that
Garcia’s motion was not filed “within a reasonable time after
the discovery of the new evidence,” as provided in Neb. Rev.
Stat. § 29-2103(4) (Reissue 2016).
Garcia, represented by new counsel, appeals.
ASSIGNMENTS OF ERROR
Garcia assigns two errors on appeal. First, he contends that
the district court erred in denying the motion for new trial.
Second, he asserts that, to the extent his counsel failed to file
his motion for new trial earlier, he received ineffective assist-
ance of counsel.
STANDARD OF REVIEW
[1] The standard of review governing motions for new trial
brought pursuant to § 29-2101(5) is well established. An appel-
late court applies a de novo standard when reviewing a trial
court’s dismissal of a motion for new trial without conduct-
ing an evidentiary hearing, but it applies an abuse of discre-
tion standard of review to appeals from motions for new trial
denied after an evidentiary hearing. State v. Boppre, 315 Neb.
203, 995 N.W.2d 28 (2023).
Despite the clearly established standard of review, the par-
ties disagree about the applicable standard of review because
they disagree about the nature of the hearing that took place
in the district court. Garcia argues that the district court con-
ducted an evidentiary hearing and that therefore, this court
should determine whether the district court abused its discre-
tion by denying his motion for new trial. The State counters
that the district court’s hearing was a preliminary hearing

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GARCIA
Cite as 318 Neb. 228
designed to assist the district court in determining whether an
evidentiary hearing was required. See id. In the State’s view,
the district court denied Garcia’s motion without an evidentiary
hearing, and we should therefore review de novo whether that
decision was correct.
We agree with the State that the district court did not hold
an evidentiary hearing on Garcia’s motion. In its order deny-
ing the motion for new trial, the district court referred to the
November 2023 hearing as a “status hearing.” Nowhere did
the district court suggest that it had determined that Garcia
was entitled to an evidentiary hearing on his motion for new
trial. Accordingly, we review de novo whether the district court
erred in denying Garcia’s motion for new trial without con-
ducting an evidentiary hearing.
While it is our conclusion that the district court did not hold
an evidentiary hearing, we express no view on whether the
materials submitted by Garcia at the November 2023 hearing
were the type of records that are properly received at a records
or status hearing. See id.
ANALYSIS
Denial of Motion for New Trial.
Garcia argues that the district court erred by denying his
motion for new trial. He contends that the district court was
wrong to conclude that he failed to identify “newly discovered
evidence” for purposes of § 29-2101(5) and wrong to conclude
that his motion was not timely.
The State defends the district court’s reasons for denying
Garcia’s motion and also offers several other reasons that it
contends support the denial. Specifically, the State argues that
a motion for new trial is not the proper vehicle to raise what
it asserts is essentially a challenge to Garcia’s competency to
stand trial; that Garcia’s motion was not supported by the types
of evidence required by Neb. Rev. Stat. § 29-2102(1) (Reissue
2016); and that, even if other issues regarding Garcia’s motion
could be set aside, the evidence he identified was insufficient
to entitle him to an evidentiary hearing on his motion for new

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GARCIA
Cite as 318 Neb. 228
trial. We find it unnecessary to address all of the arguments
made by the State because, as we will explain, we are per-
suaded that Garcia’s motion and supporting documents fail to
set forth facts that, even if assumed true, would entitle him to
an evidentiary hearing.
In Boppre, a recent case in which a criminal defendant
sought a new trial pursuant to § 29-2101(5), we discussed “the
various statutory requirements that must be satisfied to avoid
dismissal of a motion for new trial without an evidentiary
hearing.” State v. Boppre, 315 Neb. 203, 222, 995 N.W.2d 28,
45-46 (2023). We explained that to analyze whether a defend-
ant is entitled to an evidentiary hearing based on claims of
newly discovered evidence, courts must consider whether the
defendant’s motion and supporting documents (1) comport
with the form and content requirements of §§ 29-2102 and
29-2103; (2) comport with the timeliness requirements of
§ 29-2103; and (3) set forth facts which, if true, satisfy the
evidentiary hearing requirements of § 29-2102(2). See Boppre,
supra. We made clear that if a defendant’s motion and support-
ing documents fail to satisfy any one of these three require-
ments, the defendant is not entitled to an evidentiary hearing.
Id. We find the third requirement dispositive in this case.
[2] In Boppre, we discussed what a defendant must do to
satisfy the third requirement to avoid dismissal without an evi-
dentiary hearing. We said:
[W]hen a defendant seeks a new trial on the ground
of newly discovered evidence, the evidentiary hearing
provisions of § 29-2102(2) are satisfied if the motion
and supporting affidavits, depositions, or oral testimony
set forth sufficient facts which, if true, establish that (1)
the new evidence existed at the time of trial but could
not, with reasonable diligence, have been discovered and
produced at trial and (2) such evidence is so substantial
that with it, a different verdict would probably have been
reached at trial.
Boppre, 315 Neb. at 226, 995 N.W.2d at 48.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GARCIA
Cite as 318 Neb. 228
In this case, we find that even assuming other requirements
were satisfied, the motion and supporting documents failed to
identify the existence of evidence so substantial that with it,
a different verdict would probably have been reached at trial.
In the ordinary case, to determine whether newly discovered
evidence is sufficiently substantial to warrant an evidentiary
hearing, we assess the strength of the evidence the defendant
claims is newly discovered, along with the strength of the evi-
dence introduced at trial, and ask whether it is likely a different
verdict would be reached at a hypothetical new trial at which
all such evidence is received. See, e.g., Boppre, supra. See,
also, State v. Brown, 310 Neb. 318, 327, 965 N.W.2d 388, 394
(2021) (explaining defendant is entitled to new trial based on
newly discovered evidence when such evidence “is so potent
that by strengthening evidence already offered, a new trial
would probably result in a different verdict”).
Under the foregoing framework, Garcia’s motion clearly
falls short. The evidence Garcia claims is newly discovered—
evidence that he positively responded to involuntary medica-
tion in 2019 and that he was diagnosed with hearing loss in
2020—has no relevance to whether he committed the murders
and other crimes with which he was charged. If a new trial
were granted, we do not see how that evidence would even be
admissible, much less so helpful to Garcia that it would prob-
ably lead to a different verdict.
Likely aware that the evidence he relies upon has no bear-
ing on whether he committed the charged crimes, Garcia
appears to argue that we should assess whether the evidence he
relies upon is sufficiently substantial under a different frame-
work. To that end, Garcia argues the evidence of his positive
response to involuntary medication in 2019 suggests that he
was not competent during the mitigation hearing and pos-
sibly not competent at trial. Garcia emphasizes that the U.S.
Constitution does not permit the trial of an individual who
is not mentally competent. He also asserts that if a new trial
were held, the improvement in his mental health brought about

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. GARCIA
Cite as 318 Neb. 228
by involuntary medication would allow him to understand the
proceedings and contribute to his defense in a way that he did
not during the original proceedings.
We are not convinced that Garcia has identified evidence
that is sufficiently substantial to warrant an evidentiary hear-
ing, even under his proposed framework. Even assuming that a
defendant would be entitled to a new trial if he or she obtained
newly discovered evidence that suggested he or she probably
lacked competency during earlier proceedings and thus should
not have been tried at all, Garcia has not identified such evi-
dence here. In our view, evidence that Garcia’s mental health
appeared to improve after he was involuntarily injected with
medication does not suggest that he lacked competency during
the guilt or penalty phase proceedings in the district court. As
for Garcia’s argument that he is entitled to a new trial because
his improved condition would allow him to contribute to his
defense at such a trial, we are also unpersuaded. Garcia’s
motion and supporting documents do not identify any specific
way in which he would be able to contribute to his defense
at a new trial, much less explain how his participation would
probably result in a different outcome at a new trial.
Because Garcia’s motion fails to identify the existence of
evidence so substantial that with it, a different verdict would
probably have been reached at trial, we find the district court
did not err in denying his motion for new trial without an evi-
dentiary hearing.
Ineffective Assistance Claim.
In addition to assigning that the district court erred by deny-
ing his motion for new trial, Garcia also includes an assign-
ment of ineffective assistance of counsel. Garcia contends
that to the extent his counsel failed to file his motion for new
trial in a timely manner, he received ineffective assistance
of counsel.
We note that it is not clear that Garcia had a constitutional
right to effective counsel for purposes of a motion for new trial

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Nebraska Supreme Court Advance Sheets
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STATE v. GARCIA
Cite as 318 Neb. 228
based on newly discovered evidence. While the U.S. Supreme
Court has held that the Sixth Amendment guarantees a right to
effective counsel at trial and on direct appeal, Garcia’s motion
for new trial based on newly discovered evidence appears to
be a collateral attack on his conviction. See State v. Harris,
307 Neb. 237, 948 N.W.2d 736 (2020). We have held that
there is no constitutional right to counsel in proceedings in
which a defendant seeks to collaterally attack a conviction. See
State v. Poe, 271 Neb. 858, 717 N.W.2d 463 (2006).
[3] But even assuming for the sake of argument that Garcia
had a constitutional right to effective counsel in his motion for
new trial proceedings, he cannot show that he was deprived
of such a right. Generally, to prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant
must show that counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense. State v. Haas, 317 Neb. 919, 12 N.W.3d 787 (2024).
Even if Garcia’s motion for new trial had been filed earlier, the
district court properly denied it without an evidentiary hearing
for the reasons discussed above. Accordingly, he cannot estab-
lish that he was prejudiced by any deficient conduct on the part
of his counsel.
CONCLUSION
For the reasons we have discussed, we find the district court
did not err in denying Garcia’s motion for new trial without
holding an evidentiary hearing. We therefore affirm.
Affirmed.
Freudenberg, J., not participating.