Nebraska Court of Appeals orders evidentiary hearing for second degree murder convict who pled State v. Gonzales, 14 Neb. App. 493Filed February 14, 2006. No. A-04-299. Gonzales was co defendant with Juan Leonor, see State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002). Gonzales pled guilty to amended charges of one count of manslaughter, one count of second degree murder, and one count of use of a deadly weapon in the commission of a felony. Gonzales sentence was 19 to 20 years' imprisonment on the manslaughter conviction, a concurrent term of 30 to 40 years' imprisonment on the second degree murder conviction, and a consecutive term of 10 to 20 years' imprisonment on the use of a deadly weapon conviction. Gonzales seeks post conviction relief alleging that he would not have taken the plea had his counsel been effective, the alleged ineffectiveness was attorney's advising Gonzales that testimony against Leonor would come up against him and lead to a conviction. Court of appeals concludes that Gonzales plea came from counsel's conclusion that damning testimony from Leonor's case would come up in his case. Appeals court probably finds hearsay problems with this and reverses for an evidentiary hearing.

The allegations of Gonzales' motion, if proven, demonstrate that Gonzales' counsel advised him that the exact same evidence used at Leonor's trial would be used in Gonzales' trial, that the evidence used at Leonor's trial which implicated Gonzales consisted entirely of testimony by witnesses of statements made by Leonor, and that the statements were admissible against Leonor because they were his own statements being offered against himself, but those statements could be argued to be hearsay if offered against Gonzales. Because no evidentiary hearing was granted, we are unable to determine why counsel might have believed Leonor's out-of-court statements would be admissible against Gonzales. Although it is entirely possible that counsel had a reason for such belief or a reason for advising Gonzales that the statements would be admissible, there is simply no way for this court to know without an evidentiary hearing, and speculation at this time would be improper. At this stage of the proceedings, there is no way for this court to know if the advice was even given, let alone whether the advice was correct. It is sufficient that the allegations of the motion, if proven, demonstrate Gonzales might be entitled to relief and that the records and files do not affirmatively demonstrate he is entitled to no relief. As such, we reverse, and remand for an evidentiary hearing on Gonzales' motion for postconviction relief.