State v. Ware, 292 Neb. 24

David E. Ware was convicted of first-degree murder after a bench trial in 1984 and sentenced to life imprisonment; conviction and sentence affirmed on direct appeal.
In 2012 Ware moved for postconviction relief, alleging (1) his mandatory life sentence violated Miller v. Alabama because the court had no opportunity to consider mitigation, (2) trial counsel was ineffective for failing to advise him of his right to testify and for not adequately informing him about his right to a jury trial, and (3) his waiver of a presentence investigation was not knowing and voluntary.
The motion was stayed pending related Nebraska precedent; after opinions in Mantich and Castaneda the district court proceeded, denied admission of a neuropsychologist deposition, and denied relief without an evidentiary hearing.
The district court found Ware was 18 at the time of the offense (so Miller did not apply), the record did not support the claim counsel failed to advise him about testifying, and presentence-investigation claims were procedurally barred.
Ware appealed, arguing he was entitled to an evidentiary hearing on an Eighth Amendment/Miller claim and on ineffective-assistance claims relating to waiver of a jury trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Constitutionality of life sentence under Miller	Ware: Miller should apply because brain development extends beyond 18; Nebraska juvenile code sets majority at 19, so Miller protections should extend to under-19s	State: Miller applies only to those under 18 at time of offense; Nebraska statutes codify Miller for under-18s; record shows Ware was 18	Court: Miller applies only to persons under 18 at offense; Ware was 18, so no relief
Ineffective assistance re: waiver of jury trial	Ware: counsel failed to adequately advise him of consequences of waiving jury, entitling him to an evidentiary hearing	State: Record (colloquy and counsel statements) shows Ware was informed and knowingly waived jury trial	Court: Record affirmatively shows Ware knowingly waived jury; no postconviction relief or hearing required

State v. Ware, 219 Neb. 594 (affirming Ware's conviction and sentence)
Miller v. Alabama, 132 S. Ct. 2455 (mandatory life-without-parole for persons under 18 violates Eighth Amendment)
State v. Mantich, 287 Neb. 320 (Nebraska application of Miller remedy)
State v. Castaneda, 287 Neb. 289 (Nebraska application of Miller remedy)
State v. Wetherell, 289 Neb. 312 (rejecting extension of Miller to persons 18 but under juvenile-code majority)
State v. Glover, 276 Neb. 622 (procedural guidance on introducing new evidence in records hearing)
State v. Hessler, 288 Neb. 670 (postconviction standards referenced)