State v. WetherellState v. Wetherell
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 evidentiary hearing to resolve the claims in a postconviction motion when the motion
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 defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.
8. Postconviction: Appeal and Error. 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 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,
11. Postconviction: Justiciable Issues: Right to Counsel: Appeal and Error. When the defendant‘s motion presents a justiciable issue to the district court for postconviction determination, an indigent defendant is entitled to the appointment of counsel. Where the assigned errors in the postconviction motion before the district court are either procedurally barred or without merit, establishing that the postconviction proceeding contained no justiciable issue of law or fact, it is not an abuse of discretion to fail to appoint counsel for an indigent defendant.
MILLER-LERMAN, 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 sentence 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.
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 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 postconviction 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
The district court denied Wetherell‘s second motion for postconviction relief without an evidentiary hearing and without 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 Miller 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 appointing 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 Miller, 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 represent her on her second motion for postconviction relief.
STANDARDS OF REVIEW
[1] In appeals from postconviction 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
[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, 280 Neb. 558, 787 N.W.2d 700 (2010).
[5] Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. State v. Kudlacz, 288 Neb. 656, 850 N.W.2d 755 (2014).
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 postconviction relief without an evidentiary hearing. Wetherell contends that because she was a “minor” under Nebraska law at the time of her offense, Miller 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 Miller, 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 Miller were mandatory sentences and were effectively life imprisonment without parole. See, also, State v. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014). Applying our observation regarding
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 Miller applies retroactively on collateral review, Miller may be considered in connection with Wetherell‘s second motion for postconviction relief.
In response to Miller, 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, 287 Neb. at 314, 842 N.W.2d at 759.
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 consider 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 adolescent mental health professional licensed in this state. The evaluation shall include, but not be limited to, interviews with the convicted person‘s family in order to learn about the convicted person‘s prenatal history, developmental 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 postconviction 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 limitation 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 retroactively to cases on postconviction collateral review[.]
Under Mantich, supra, decided in 2014, this court concluded that the holding in Miller applies retroactively, and we therefore determine that Wetherell‘s motion is not time barred.
Application of the Law.
As stated above, Miller provides 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 (emphasis supplied).
The language of Miller, “under the age of 18,” is clear. 132 S. Ct. at 2460. The holding in Miller applies to persons 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 committed the offense for which she was convicted and acknowledges 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 majority 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,
In the instant case, the Legislature has explicitly provided that the sentencing provisions in
[6,7] Because Wetherell was undisputedly 18 years old when she committed her offense, neither Miller nor resulting resentencing under
[8] We note for completeness that to the extent that Wetherell does not rely upon Miller and generally claims that her sentence of life imprisonment without parole was unconstitutionally 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
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 represent her on her second motion for postconviction relief. We conclude that because Wetherell‘s second motion for postconviction 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 constitutional right to an attorney in state postconviction proceedings. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010). Therefore, a person seeking postconviction relief is not entitled to appointment of counsel as a matter of right.
[10,11] Instead, under the Nebraska Postconviction Act,
The standards for determining whether discretion requires appointment of counsel are similar to those applied when
CONCLUSION
The relief afforded in Miller and resulting resentencing under
AFFIRMED.