State v. Wetherell, 855 N.W.2d 359

In 1999 Niccole A. Wetherell pled no contest to first-degree murder (Class IA) for an offense in September 1998; a three-judge panel imposed mandatory life imprisonment. Wetherell was 18 when the offense occurred.
Her conviction and sentence were affirmed on direct appeal; a first postconviction motion (2007) was denied and affirmed on appeal.
Wetherell filed a second pro se postconviction motion arguing Miller v. Alabama required resentencing because Nebraska statutes deemed persons under 19 to be "minors," and she was a "minor" when she offended. She sought resentencing under legislative changes (L.B. 44, codified at Neb. Rev. Stat. § 28-105.02).
The district court denied the second motion without an evidentiary hearing and without appointing counsel, concluding Miller and § 28-105.02 apply only to persons under 18 and Wetherell was 18 at the time of the offense.
Wetherell appealed, claiming (1) Miller renders her mandatory life sentence cruel and unusual and (2) the court erred by not appointing counsel for postconviction proceedings. The Nebraska Supreme Court affirmed.

Issue	Wetherell's Argument	State's Argument	Held
Whether Miller v. Alabama and § 28-105.02 entitle Wetherell (age 18 at offense) to resentencing	Miller protects "minors"; Nebraska law declares persons under 19 to be "minors," so Miller/L.B. 44 apply to her	Miller and § 28-105.02 apply only to those under 18 at the time of the offense; Wetherell was 18	Denied — Miller and § 28-105.02 apply only to persons under 18; Wetherell not entitled to relief
Whether the second postconviction motion was time-barred	Motion timely because Miller was recognized retroactively (Mantich)	Motion should be barred by statute of limitations	Motion not time-barred to the extent it relied on Miller (court accepts retroactivity)
Whether an evidentiary hearing was required on the postconviction motion	Facts (age/status as "minor") warranted a hearing	The motion alleged only legal conclusions; records show no entitlement to relief	Denied — no factual allegations that, if proved, would entitle her to relief; no hearing required
Whether the court abused its discretion by not appointing counsel	Indigent defendant should have counsel for postconviction claims raising Miller	Appointment discretionary; counsel unnecessary if no justiciable issue exists	Denied — no abuse of discretion because the motion raised no justiciable issue

Miller v. Alabama, 132 S. Ct. 2455 (U.S. 2012) (mandatory life without parole for offenders under 18 violates the Eighth Amendment)
State v. Mantich, 287 Neb. 320 (Neb. 2014) (Miller applies retroactively on collateral review)
State v. Castaneda, 287 Neb. 289 (Neb. 2014) (discussing Nebraska sentencing scheme pre-Miller for Class IA juveniles)
State v. Dragon, 287 Neb. 519 (Neb. 2014) (standards for evidentiary hearings on postconviction motions)
State v. Kudlacz, 288 Neb. 656 (Neb. 2014) (statutory interpretation principles)