State v. WetherellState v. Wetherell
Case Information
*1 N ebraska a dvaNce s heets
to proceed with the hearing of a forcible entry and detainer action until it is clearly established that the question to be determined is one of title. [32] Because upon trial, the evidence did not show that the action concerned a present question of title, the county court had jurisdiction to issue the writ of res- titution. The Marcuzzos’ second assignment of error also lacks merit. We find no plain error appearing on the record.
CONCLUSION
Because the Marcuzzos failed to offer evidence of a ques- tion of title until after that question had been resolved, the county court properly exercised jurisdiction. We find no plain error appearing on the record. We therefore affirm the judgment of the district court, which affirmed the county court’s judgment.
a ffirmed . [32] See Pettit, supra note 18.
s tate of N ebraska , appellee , v .
N iccole a. W etherell , appellaNt .
___ N.W.2d ___ Filed October 24, 2014. No. S-13-805.
1.
Postconviction: Constitutional Law: Appeal and Error.
In appeals from post-
conviction proceedings, an appellate court reviews de novo a determination that
the defendant failed to allege sufficient facts to demonstrate a violation of his or
her constitutional rights or that the record and files affirmatively show that the
defendant is entitled to no relief.
2.
Constitutional Law: Sentences.
Whether a sentence violates the Eighth
Amendment’s cruel and unusual punishment clause presents a question of law.
3.
Judgments: Appeal and Error.
When reviewing a question of law, an appellate
court reaches a conclusion independent of the lower court’s ruling.
4.
Postconviction: Right to Counsel: Appeal and Error.
Failure to appoint
counsel in postconviction proceedings is not error in the absence of an abuse
of discretion.
5.
Statutes: Appeal and Error.
Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
6.
Postconviction: Constitutional Law: Proof.
A court must grant an eviden-
tiary hearing to resolve the claims in a postconviction motion when the motion
contains factual allegations which, if proved, constitute an infringement of the
defendant’s rights under the Nebraska or federal Constitution.
7.
Postconviction: Proof.
If a postconviction motion alleges only conclusions of
fact or law, or if the records and files in the case affirmatively show that the
*2
defendant is entitled to no relief, the court is not required to grant an eviden-
tiary hearing.
8.
Postconviction: Appeal and Error.
An appellate court will not entertain a suc-
cessive motion for postconviction relief unless the motion affirmatively shows
on its face that the basis relied upon for relief was not available at the time the
movant filed the prior motion.
9.
Postconviction: Right to Counsel.
There is no federal or state constitutional
right to an attorney in state postconviction proceedings.
10. ____: ____. Under the Nebraska Postconviction Act,
Niccole A. Wetherell, pro se.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
h eavicaN , c.J., W right , c oNNolly , s tephaN , m c c ormack , m iller -l ermaN , and c assel , JJ.
m iller -l ermaN , J.
NATURE OF CASE
In 1999, Niccole A. Wetherell pled no contest to first degree murder, a Class IA felony, and a three-judge panel imposed a mandatory sentence of life imprisonment. Wetherell was 18 years old at the time of the offense. Her conviction and sen- tence were affirmed by this court on direct appeal. The denial of her first postconviction motion was later affirmed. Wetherell filed a second motion for postconviction relief pro se, and this is the motion which gives rise to this appeal.
In her motion, Wetherell claimed that because she was a “minor” as defined under certain Nebraska law at the time of her offense, her mandatory life sentence without the pos- sibility of parole is cruel and unusual and, therefore, uncon- stitutional under Miller v. Alabama , ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) ( ). generally held that mandatory life sentences without the possibility of parole for persons under 18 at the time they committed their offense were unconstitutional. For relief, Wetherell sought a resentencing.
The district court for Sarpy County determined that because Wetherell was not under the age of 18 at the time of her offense, Miller does not apply to her case. The court denied her motion without conducting an evidentiary hearing and without appointing counsel. Wetherell appeals. Because we determine that Wetherell has failed to allege any facts which, if proved, constitute an infringement of her constitutional rights and the records and files show she is entitled to no *3 relief, we affirm.
STATEMENT OF FACTS
On March 24, 1999, Wetherell pled no contest to first degree murder, a Class IA felony. The offense for which Wetherell was charged occurred in September 1998. Wetherell was born in July 1980. She was 18 years old when the offense occurred. A three-judge panel rejected the death penalty and imposed a mandatory sentence of life imprisonment.
Wetherell’s conviction and sentence were affirmed by this court on direct appeal. See State v. Wetherell , 259 Neb. 341, 609 N.W.2d 672 (2000). The sole error Wetherell assigned in her direct appeal was that the district court erred when it did not permit her to withdraw her plea prior to sentencing.
On August 1, 2007, Wetherell filed her first motion for post- conviction relief. The district court denied the motion without an evidentiary hearing, and the denial was affirmed by this court on January 31, 2008, in case No. S-07-939.
Wetherell later filed a second motion for postconviction
relief pro se. This is the motion which gives rise to this appeal.
In her second motion for postconviction relief, Wetherell
alleged that she was 18 years old at the time of the offense
but claimed that under
The district court denied Wetherell’s second motion for postconviction relief without an evidentiary hearing and with- out appointing counsel. The district court noted that by their terms, both Miller and L.B. 44 apply to offenders who were under the age of 18 years at the time of the offense. Because it is undisputed that Wetherell was 18 years old at the time she committed the offense, the district court concluded that and the relief afforded by L.B. 44 do not apply to her case. Therefore, the court determined that Wetherell failed to establish a basis for postconviction relief, and it denied her motion without an evidentiary hearing and without appoint- ing counsel.
Wetherell appeals.
ASSIGNMENTS OF ERROR
Wetherell claims, restated, that the district court erred when it (1) denied her motion for postconviction relief, because under , her life sentence was imposed in violation of the cruel and unusual punishment provisions of the Nebraska and U.S. Constitutions, and (2) failed to appoint counsel to repre- sent her on her second motion for postconviction relief.
STANDARDS OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of
his or her constitutional rights or that the record and files
affirmatively show that the defendant is entitled to no relief.
State v. Dragon
,
[2,3] Whether a sentence violates the Eighth Amendment’s cruel and unusual punishment clause presents a question of law. State v. Mantich , 287 Neb. 320, 842 N.W.2d 716 (2014), cert. denied No. 13-1348, 2014 WL 1831466 (U.S. Oct. 6, 2014). When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court’s ruling. Id .
[4] Failure to appoint counsel in postconviction proceedings
is not error in the absence of an abuse of discretion.
State v.
McGhee
,
[5] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.
State
v. Kudlacz
,
ANALYSIS
First Assignment of Error:
Resentencing Under Miller .
In her first assignment of error, Wetherell claims that the district court erred when it denied her motion for postconvic- tion relief without an evidentiary hearing. Wetherell contends that because she was a “minor” under Nebraska law at the time of her offense, applies to her case. Wetherell asserts that her life sentence is in violation of the cruel and unusual punishment provisions of the Nebraska and U.S. Constitutions and that she is entitled to resentencing. We find no merit to this assignment of error.
Applicable Law.
In , the U.S. Supreme Court held that “mandatory
life without parole for those under the age of 18 at the time
of their crimes violates the Eighth Amendment’s prohibition
on ‘cruel and unusual punishments.’” 132 S. Ct. at 2460. In
State v. Castaneda
, 287 Neb. 289, 842 N.W.2d 740 (2014),
we observed that life imprisonment sentences imposed on
juveniles in Nebraska for first degree murder prior to were mandatory sentences and were effectively life imprison-
ment without parole. See, also,
State v. Ramirez
,
N ebraska a dvaNce s heets
mandatory life imprisonment sentences under Nebraska’s sen- tencing scheme, Wetherell’s sentence was tantamount to life imprisonment without the possibility of parole.
In Mantich, supra , this court concluded that the U.S. Supreme Court’s holding in Miller was a substantive change to the law that applies retroactively on collateral review. Therefore, because this court has stated that applies retroactively on collateral review, may be considered in connection with Wetherell’s second motion for postconvic- tion relief.
In response to , the Nebraska Legislature passed, and
the Governor approved, L.B. 44, which amended state law to
“‘change penalty provisions with respect to Class IA felonies
committed by persons under eighteen years of age [and] to
change parole procedures with respect to offenses committed
by persons under eighteen years of age.’”
State v. Castaneda
,
Section 2 of L.B. 44 was codified at
(1) Notwithstanding any other provision of law, the penalty for any person convicted of a Class IA felony for an offense committed when such person was under the age of eighteen years shall be a maximum sentence of not greater than life imprisonment and a minimum sentence of not less than forty years’ imprisonment.
(2) In determining the sentence of a convicted person under subsection (1) of this section, the court shall con- sider mitigating factors which led to the commission of the offense. The convicted person may submit mitigating factors to the court, including, but not limited to: (a) The convicted person’s age at the time of the offense;
(b) The impetuosity of the convicted person; (c) The convicted person’s family and community environment;
(d) The convicted person’s ability to appreciate the risks and consequences of the conduct; (e) The convicted person’s intellectual capacity; and (f) The outcome of a comprehensive mental health evaluation of the convicted person conducted by an ado- lescent mental health professional licensed in this state. The evaluation shall include, but not be limited to, inter- views with the convicted person’s family in order to learn about the convicted person’s prenatal history, develop- mental history, medical history, substance abuse treatment history, if any, social history, and psychological history.
(Emphasis supplied.)
Section 3 of L.B. 44 was codified at
Postconviction Motion
Not Time Barred.
As an initial matter, the State has suggested that Wetherell’s
postconviction motion is time barred. We disagree. Given the
not unreasonable, albeit unpersuasive, assertion by Wetherell
that
Miller
applies, we determine that Wetherell’s second post-
conviction motion, to the extent it relies on
Miller
as made
retroactive by
State v. Mantich
, 287 Neb. 320, 842 N.W.2d
716 (2014),
cert. denied
No. 13-1348, 2014 WL 1831466
(U.S. Oct. 6, 2014), is not time barred. The statutory limita-
tion periods regarding postconviction motions are found at
A one-year period of limitation shall apply to the filing of a verified motion for postconviction relief. The one-year limitation period shall run from the later of: . . . .
. . . The date on which a constitutional claim asserted was initially recognized by the Supreme Court of the United States or the Nebraska Supreme Court, if the newly recognized right has been made applicable retroac- tively to cases on postconviction collateral review[.] Under Mantich, supra , decided in 2014, this court concluded that the holding in Miller applies retroactively, and we there- fore determine that Wetherell’s motion is not time barred. Application of the Law.
As stated above,
Miller
provides that “mandatory life with-
out parole for those
under the age of 18 at the time of their
crimes
violates the Eighth Amendment’s prohibition on ‘cruel
and unusual punishments.’” 132 S. Ct. at 2460 (emphasis
supplied).
The language of , “under the age of 18,” is clear.
132 S. Ct. at 2460. The holding in applies to persons
*7
who were “under the age of 18 at the time of their crimes”
and does not encompass persons such as Wetherell, who was
already 18 at the time of her crime. See
id
. The relief afforded
in
Miller
does not apply to Wetherell. We further observe that
Wetherell’s reliance on
Wetherell concedes that she was 18 years old when she com-
mitted the offense for which she was convicted and acknowl-
edges that both
Miller
and
We recognize that as a general matter pursuant to
We think it is a proper reading of the Nebraska Revised Statutes that§ 43-2101 sets the age of major- ity and that, except where a statute references a specific age ,§ 43-2101 defines “minor” for general purposes. Where the word “minor” is used elsewhere in the statutes without further definition, it may be presumed to have the general meaning declared under§ 43-2101 . Where the Legislature wishes to provide a different definition or wishes to proscribe conduct based on an age other than the age of majority, the Legislature will explicitly do so . . . .
(Emphasis supplied.) See, also, § 43-245 (providing that “ unless the context otherwise requires : (1) [a]ge of majority *8 means nineteen years of age” (emphasis supplied)).
N ebraska a dvaNce s heets
In the instant case, the Legislature has explicitly pro-
vided that the sentencing provisions in
[6,7] Because Wetherell was undisputedly 18 years old
when she committed her offense, neither nor resulting
resentencing under
[8] We note for completeness that to the extent that Wetherell
does not rely upon and generally claims that her sen-
tence of life imprisonment without parole was unconstitu-
tionally disproportionate to her offense and violates the cruel
and unusual punishment provisions of the Nebraska and U.S.
Constitutions, we reject this argument. An appellate court will
not entertain a successive motion for postconviction relief
unless the motion affirmatively shows on its face that the basis
relied upon for relief was not available at the time the mov-
ant filed the prior motion.
State v. Watkins
,
Second Assignment of Error:
Appointment of Counsel.
In her second assignment of error, Wetherell claims that the district court erred when it failed to appoint counsel to repre- sent her on her second motion for postconviction relief. We conclude that because Wetherell’s second motion for postcon- viction relief did not raise justiciable issues, the district court did not abuse its discretion when it did not appoint counsel prior to denying postconviction relief.
[9] We have recognized that there is no federal or state con-
stitutional right to an attorney in state postconviction proceed-
ings.
State v. McGhee
,
[10,11] Instead, under the Nebraska Postconviction Act,
The standards for determining whether discretion requires appointment of counsel are similar to those applied when
IN RE INTEREST OF GABRIELLA H. determining whether an evidentiary hearing is warranted, which are set forth above. As we have noted, Wetherell has not alleged facts sufficient to entitle her to an evidentiary hearing on her postconviction claim and the records and files show that she is entitled to no relief. Wetherell has raised no justiciable issue of law or fact, and therefore, the district court did not abuse its discretion when it did not appoint counsel.
CONCLUSION
The relief afforded in
Miller
and resulting resentencing
under
a ffirmed .
i re i Nterest of g abriella h.,
a child uNder 18 years of age .
s tate of N , appellee , . r icardo r., appellaNt . ___ N.W.2d ___ Filed October 24, 2014. No. S-13-900.
1.
Juvenile Courts: Appeal and Error.
An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2.
Parental Rights: Abandonment: Words and Phrases.
For purposes of