State v. Lotter , 301 Neb. 125 ( 2018 )


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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. LOTTER
    Cite as 
    301 Neb. 125
    State of Nebraska, appellee, v.
    John L. Lotter, appellant.
    ___ N.W.2d ___
    Filed September 28, 2018. Nos. S-17-325, S-17-338,
    S-17-339, S-17-1126, S-17-1127, S-17-1129.
    1.	 Judgments: Jurisdiction: Appeal and Error. Determination of a juris-
    dictional issue which does not involve a factual dispute is a matter of
    law which requires an appellate court to reach its conclusions indepen-
    dent from a trial court.
    2.	 Postconviction: Appeal and Error. Whether a claim raised in a post-
    conviction proceeding is procedurally barred is a question of law. When
    reviewing a question of law, an appellate court resolves the question
    independently of the lower court’s conclusion.
    3.	 Jurisdiction: Final Orders: Appeal and Error. For an appellate court
    to acquire jurisdiction of an appeal, there must be a final judgment or
    final order entered by the tribunal from which the appeal is taken.
    4.	 Postconviction: Final Orders. Within a postconviction proceeding,
    an order granting an evidentiary hearing on some issues and denying
    a hearing on others is a final, appealable order as to the claims denied
    without a hearing.
    5.	 Postconviction: Appeal and Error. An order denying a postconvic-
    tion claim is appealable even when the court reserves ruling on other
    claims.
    6.	 Postconviction: Final Orders. An order overruling a motion for post-
    conviction relief as to a claim is a “final judgment” as to such claim
    under Neb. Rev. Stat. § 29-3002 (Reissue 2016).
    7.	 Judgments: Final Orders: Time: Appeal and Error. A party has 30
    days from the entry of a judgment or final order to appeal the decision
    of a district court unless a party has filed a timely motion which termi-
    nates the appeal period.
    8.	 Pleadings: Judgments: Appeal and Error. A motion for reconsid-
    eration is the functional equivalent of a motion to alter or amend a
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    judgment, which terminates the period in which a party must file a
    notice of appeal.
    9.	 Pleadings: Judgments: Time: Appeal and Error. In cases involving
    a motion to alter or amend a judgment, a critical factor is whether the
    motion was filed within 10 days of the final order, because a timely
    motion terminates the time for filing a notice of appeal.
    10.	 Courts: Judgments: Time: Appeal and Error. A motion for reconsid-
    eration does not terminate the time for appeal and is considered nothing
    more than an invitation to the court to consider exercising its inherent
    power to vacate or modify its own judgment.
    11.	 Rules of the Supreme Court: Postconviction. Postconviction pro-
    ceedings are not governed by the Nebraska Court Rules of Pleading in
    Civil Cases.
    12.	 Pleadings: Time: Appeal and Error. An untimely motion to alter or
    amend does not terminate the time for perfection of an appeal and does
    not extend or suspend the time limit for filing a notice of appeal.
    13.	 Legislature: Courts: Time: Appeal and Error. When the Legislature
    fixes the time for taking an appeal, the courts have no power to extend
    the time directly or indirectly.
    14.	 Postconviction: Pleadings: Final Orders: Appeal and Error. An
    order ruling on a motion filed in a pending postconviction case seeking
    to amend the postconviction motion to assert additional claims is not a
    final judgment and is not appealable under Neb. Rev. Stat. § 29-3002
    (Reissue 2016).
    15.	 Final Orders: Time: Appeal and Error. To trigger the savings clause
    for premature notices of appeal under Neb. Rev. Stat. § 25-1912(2)
    (Reissue 2016), an announcement must pertain to a decision or order
    that, once entered, would be final and appealable.
    16.	 Postconviction: Pleadings: Time. The Nebraska Postconviction Act
    contains a 1-year time limit for filing a verified motion for postconvic-
    tion relief, which runs from one of four triggering events or August 27,
    2011, whichever is later.
    17.	 Sentences. Hurst v. Florida, ___ U.S. ___, 
    136 S. Ct. 616
    , 
    193 L. Ed. 2d
    504 (2016), merely applied Ring v. Arizona, 
    536 U.S. 584
    , 
    122 S. Ct. 2428
    , 
    153 L. Ed. 2d 556
    (2002), and did not set forth a new rule of law
    for sentencing.
    18.	 Constitutional Law: Courts. Constitutional rights are not defined by
    inferences from opinions which did not address the question at issue.
    19.	 Sentences: Time: Appeal and Error. Ring v. Arizona, 
    536 U.S. 584
    ,
    
    122 S. Ct. 2428
    , 
    153 L. Ed. 2d 556
    (2002), announced a new proce-
    dural rule that does not apply retroactively to cases already final on
    direct review.
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    STATE v. LOTTER
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    Appeals from the District Court for Richardson County:
    Daniel E. Bryan, Jr., Judge, Retired, and Vicky L. Johnson,
    Judge. Appeals in Nos. S-17-325, S-17-338, and S-17-339
    dismissed. Judgment and final order in Nos. S-17-1126,
    S-17-1127, and S-17-1129 affirmed.
    Timothy S. Noerrlinger, of Naylor & Rappl, and Rebecca E.
    Woodman for appellant.
    Douglas J. Peterson, Attorney General, and James D. Smith
    for appellee.
    Brian William Stull, of American Civil Liberties Union
    Foundation, and Amy A. Miller, of American Civil Liberties
    Union of Nebraska Foundation, for amici curiae American
    Civil Liberties Union Capital Punishment Project and American
    Civil Liberties Union of Nebraska Foundation.
    Heavican, C.J., Cassel, Stacy, Funke, and Papik, JJ., and
    Bishop and Welch, Judges.
    Cassel, J.
    I. INTRODUCTION
    In identical, successive postconviction motions filed in
    three cases, John L. Lotter sought relief based on a 2016
    U.S. Supreme Court decision1 and on a death qualification
    issue. In separate orders filed months apart, the district court
    denied relief on each issue. Because Lotter did not timely
    appeal the denials of the death qualification issue, we lack
    jurisdiction over those appeals. We affirm the denials of the
    other claim as time barred, because the decision he relies
    upon is not a “newly recognized right [that] has been made
    applicable retroactively to cases on postconviction collat-
    eral review.”2
    1
    Hurst v. Florida, ___ U.S. ___, 
    136 S. Ct. 616
    , 
    193 L. Ed. 2d
    504 (2016).
    2
    Neb. Rev. Stat. § 29-3001(4)(d) (Reissue 2016).
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    II. BACKGROUND
    1. Convictions and Sentencing
    Lotter’s crimes are well known, and the underlying facts
    are set forth in our decision on Lotter’s direct appeal.3 In three
    separate cases against Lotter which were consolidated for trial,
    a jury convicted him of several crimes, including three counts
    of first degree murder. In accordance with the laws in effect at
    the time of his trial, a three-judge panel convened in February
    1996 to determine whether Lotter should be sentenced to
    death. The panel found the applicability of three aggravating
    circumstances beyond a reasonable doubt and imposed the
    death penalty.
    A criminal conviction is final for purposes of collateral
    review when the judgment of conviction is rendered, the
    availability of appeal is exhausted, and the time for petition
    for certiorari has lapsed.4 Lotter’s convictions became final
    in 1999.5
    2. K ey U.S. Supreme Court
    Sixth A mendment Cases
    (a) Apprendi v. New Jersey
    In 2000, the U.S. Supreme Court decided Apprendi v. New
    Jersey,6 a landmark decision with respect to Sixth Amendment
    jurisprudence. In that case, a hate crime statute authorized an
    increase in the prescribed statutory maximum sentence based
    on a judge’s finding by a preponderance of the evidence that
    the defendant acted with purpose to intimidate the victim
    3
    See State v. Lotter, 
    255 Neb. 456
    , 
    586 N.W.2d 591
    (1998), modified on
    denial of rehearing 
    255 Neb. 889
    , 
    587 N.W.2d 673
    (1999).
    4
    State v. Lotter, 
    266 Neb. 245
    , 
    664 N.W.2d 892
    (2003) (superseded in part
    by statute as stated in State v. Harris, 
    292 Neb. 186
    , 
    871 N.W.2d 762
          (2015)).
    5
    See id.
    6
    Apprendi v. New Jersey, 
    530 U.S. 466
    , 
    120 S. Ct. 2348
    , 
    147 L. Ed. 2d 435
          (2000).
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    based on the particular circumstances of the victim. The trial
    judge concluded that the defendant had been motivated by
    racial bias, and in accordance with the statute, the judge
    increased the defendant’s sentence.
    The Apprendi Court addressed whether a judge, rather than
    a jury, could find facts that increased the defendant’s maxi-
    mum sentence. The Court determined that the statute violated
    the Due Process Clause of the 14th Amendment and the 6th
    Amendment right to trial by jury. It declared:
    Other than the fact of a prior conviction, any fact that
    increases the penalty for a crime beyond the prescribed
    statutory maximum must be submitted to a jury, and
    proved beyond a reasonable doubt. With that exception,
    we endorse the statement of the rule set forth in the con-
    curring opinions in that case: “[I]t is unconstitutional for
    a legislature to remove from the jury the assessment of
    facts that increase the prescribed range of penalties to
    which a criminal defendant is exposed. It is equally clear
    that such facts must be established by proof beyond a
    reasonable doubt.”7
    (b) Ring v. Arizona
    Two years after Apprendi, the U.S. Supreme Court decided
    Ring v. Arizona.8 Ring applied the Apprendi rule to capital
    sentencing schemes and determined that capital defendants are
    entitled to a jury determination of any fact that would increase
    the possible maximum punishment. The Court held, “Because
    Arizona’s enumerated aggravating factors operate as ‘the func-
    tional equivalent of an element of a greater offense,’ . . . the
    Sixth Amendment requires that they be found by a jury.” 9 Ring
    7
    
    Id., 530 U.S.
    at 490 (quoting Jones v. United States, 
    526 U.S. 227
    , 119 S.
    Ct. 1215, 
    143 L. Ed. 2d 311
    (1999) (Stevens, J., concurring) (Scalia, J.,
    concurring)).
    8
    Ring v. Arizona, 
    536 U.S. 584
    , 
    122 S. Ct. 2428
    , 
    153 L. Ed. 2d 556
    (2002).
    9
    
    Id., 536 U.S.
    at 609.
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    explicitly overruled one of its prior cases “to the extent that
    it allows a sentencing judge, sitting without a jury, to find
    an aggravating circumstance necessary for imposition of the
    death penalty.”10
    (c) Hurst v. Florida
    On January 12, 2016, the U.S. Supreme Court filed its deci-
    sion in Hurst v. Florida.11 In that case, the Court considered
    the constitutionality of Florida’s capital sentencing scheme in
    light of Ring. Under Florida law, a jury renders an “‘advisory
    sentence’” of life or death without specifying a factual basis
    for its recommendation and then the court, notwithstanding
    the jury’s recommendation, weighs the aggravating and miti-
    gating circumstances and enters a sentence of life imprison-
    ment or death.12 Thus, the trial court alone makes the findings
    necessary for imposition of a death sentence—that “‘sufficient
    aggravating circumstances exist’” and that “‘there are insuf-
    ficient mitigating circumstances to outweigh the aggravating
    circumstances.’”13 In holding the sentencing scheme uncon-
    stitutional, the Court declared that “[t]he Sixth Amendment
    requires a jury, not a judge, to find each fact necessary to
    impose a sentence of death.”14 The Hurst Court stated that
    “Florida’s sentencing scheme, which required the judge alone
    to find the existence of an aggravating circumstance, is there-
    fore unconstitutional.”15
    3. Nebraska’s Capital
    Sentencing Scheme
    At the time of Lotter’s convictions and sentences, Nebraska
    law provided that after a defendant was found guilty of first
    10
    
    Id. 11 Hurst
    v. Florida,    supra note 1.
    12
    
    Id., 136 S. Ct.
    at   620.
    13
    
    Id., 136 S. Ct.
    at   622.
    14
    
    Id., 136 S. Ct.
    at   619.
    15
    
    Id., 136 S. Ct.
    at   624.
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    degree murder, a trial judge or a three-judge panel determined
    whether statutory aggravating circumstances existed.16 If such
    circumstances existed, the defendant faced a maximum pen-
    alty of death.17 If aggravating circumstances did not exist, the
    defendant faced a maximum penalty of life imprisonment. Ring
    invalidated this procedure.
    In response to Ring, the Nebraska Legislature enacted L.B.
    1,18 which amended Nebraska’s capital sentencing statutes. The
    new law required that a jury determine the existence of aggra-
    vating circumstances, unless a jury is waived by the defend­
    ant.19 It specifically stated that each aggravating circumstance
    needed to be proved by the State beyond a reasonable doubt.20
    If the jury rendered a verdict finding the existence of one or
    more aggravating circumstances, a panel of three judges would
    determine the sentence.21 The panel of judges was to consider
    whether the aggravating circumstances as determined to exist
    justified imposition of a death sentence, whether mitigating cir-
    cumstances existed which approached or exceeded the weight
    given to the aggravating circumstances, or whether the sen-
    tence of death was excessive or disproportionate to the penalty
    imposed in similar cases.22 Nothing in the legislative response
    dictated that it would apply to sentences which had already
    become final upon completion of direct review.23
    4. Fourth Postconviction
    Motion Proceedings
    Exactly 1 year after the Hurst decision, Lotter filed in each
    case a fourth motion for postconviction relief. He set forth two
    16
    Neb. Rev. Stat. §§ 29-2520 to 29-2524 (Reissue 1995).
    17
    Neb. Rev. Stat. §§ 28-105 and 28-303 (Reissue 1995).
    18
    See 2002 Neb. Laws, L.B. 1.
    19
    See § 29-2520(2) (Reissue 2008).
    20
    See § 29-2520(4)(e) and (f).
    21
    § 29-2521(1) and (3) (Reissue 2008).
    22
    § 29-2522 (Reissue 2008).
    23
    See L.B. 1.
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    grounds for relief. Lotter first alleged that Nebraska’s capi-
    tal sentencing scheme was unconstitutional in light of Hurst
    (claim 1). Second, Lotter alleged that the death qualification of
    the jury violated his rights under the 8th and 14th Amendments
    (claim 2).
    The district court promptly conducted a “preliminary review”
    to determine whether an evidentiary hearing should be granted.
    On January 17, 2017, the court entered an order denying claim
    2 as being procedurally barred. The court neither granted nor
    denied an evidentiary hearing on claim 1. The pertinent portion
    of the court’s order is as follows:
    Lotter’s claim for post-conviction relief on Claim 1
    is presently set for briefing from the State of Nebraska
    before this court determines whether a hearing is required.
    . . . Upon submission of the briefs, this court will deter-
    mine if any further hearings will be necessary.
    Lotter’s claim for post-conviction relief on Claim 2[]
    is denied. Lotter’s request to reverse his convictions are
    [sic] denied.
    On Friday, January 27, 2017, the district court held a
    hearing concerning a mandate in a previous postconviction
    proceeding. During the hearing, Lotter’s counsel asked how
    to proceed with asking the court to reconsider its denial of
    claim 2. Counsel expressed concern that “if we file a motion
    for reconsideration within 10 days, there’s a potential that
    that can be construed as a final judgment in the case and so
    the issues would be bifurcated and we would have to litigate
    this piecemeal.” The court suggested that the “best path” may
    be to file a motion for reconsideration which “should hold it
    in abeyance.”
    On Monday, January 30, 2017, Lotter filed a “Motion for
    Reconsideration and to Hold in Abeyance.” In the motion,
    Lotter asked the court to reconsider its ruling on claim 2 and to
    hold the motion in abeyance for hearing and decision together
    with the hearing and decision on claim 1. He asserted that
    before claim 2 is disposed of, the court should allow briefing
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    on whether cause existed to excuse any procedural default.
    Lotter further stated that “[i]n an abundance of caution, this
    motion is being filed in accordance with the provisions for fil-
    ing a motion to alter or amend judgment under Neb. Rev. Stat.
    § 25-1329 [(Reissue 2016)].”
    Before the district court ruled on Lotter’s motion for recon-
    sideration, Lotter filed a motion for leave to amend his post-
    conviction motion. He sought to add an additional claim, which
    would allege that his direct appeal counsel was constitutionally
    ineffective for failing to challenge the death qualification of his
    jury and that his initial postconviction counsel had an actual
    conflict of interest which precluded counsel from asserting a
    claim based on ineffective assistance of direct appeal coun-
    sel (claim 3).
    On February 22, 2017, the district court entered an order
    denying Lotter’s motion for reconsideration and denying the
    motion for leave to amend. Identical orders were filed in
    each case.
    On March 22, 2017, Lotter filed a notice of appeal in
    each case, which were docketed in this court as cases Nos.
    S-17-325, S-17-338, and S-17-339 (first appeal). The State
    moved for summary dismissal, asserting lack of jurisdiction.
    We overruled the motion but reserved the jurisdictional issue
    until plenary submission of the appeals.
    On September 28, 2017, the district court denied relief on
    claim 1 without an evidentiary hearing. The court determined
    that the claim was time barred, because Hurst did not create a
    newly recognized right. The court also concluded that neither
    Hurst nor Ring were retroactive on collateral review. Identical
    orders were filed in each case. Lotter, in turn, filed a timely
    appeal in each case, and those appeals have been docketed in
    this court as cases Nos. S-17-1126, S-17-1127, and S-17-1129
    (second appeal).
    On our own motion, we consolidated the appeals in the first
    appeal with the appeals in the second appeal for purposes of
    oral argument and disposition.
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    III. ASSIGNMENTS OF ERROR
    In the first appeal, Lotter assigns that the district court erred
    in (1) finding that claim 2 was procedurally defaulted, (2)
    finding that the postconviction motion could not be amended,
    and (3) determining the merits of claim 2 and claim 3 without
    an evidentiary hearing.
    In the second appeal, Lotter assigns no error to an action
    by the district court. Rather, he assigns that (1) the Nebraska
    capital sentencing scheme violates Hurst and the 6th and 14th
    Amendments, (2) Nebraska’s capital sentencing scheme allow-
    ing a three-judge panel to impose a death sentence violates
    the 8th Amendment, and (3) this court has jurisdiction over
    Lotter’s appeal from the denial of claim 2 and claim 3.
    IV. STANDARD OF REVIEW
    [1] Determination of a jurisdictional issue which does not
    involve a factual dispute is a matter of law which requires an
    appellate court to reach its conclusions independent from a
    trial court.24
    [2] Whether a claim raised in a postconviction proceeding
    is procedurally barred is a question of law. When reviewing a
    question of law, an appellate court resolves the question inde-
    pendently of the lower court’s conclusion.25
    V. ANALYSIS
    1. Jurisdiction in
    First A ppeal
    We begin by addressing the jurisdictional issue raised by the
    State in its motion for summary dismissal. The State claimed
    that Lotter’s appeal from the denial of claim 2 was untimely
    and that his notice of appeal from the denial of his motion to
    amend to add claim 3 was premature. Thus, the State contends
    that we lack jurisdiction over the first appeal.
    24
    State v. Coble, 
    299 Neb. 434
    , 
    908 N.W.2d 646
    (2018).
    25
    State v. McGuire, 
    299 Neb. 762
    , 
    910 N.W.2d 144
    (2018).
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    (a) General Principles
    [3-6] For an appellate court to acquire jurisdiction of an
    appeal, there must be a final judgment or final order entered
    by the tribunal from which the appeal is taken.26 It is well
    established that within a postconviction proceeding, an order
    granting an evidentiary hearing on some issues and denying a
    hearing on others is a final, appealable order as to the claims
    denied without a hearing.27 An order denying a postconvic-
    tion claim is appealable even when the court reserves ruling
    on other claims.28 It is appealable because an order overrul-
    ing a motion for postconviction relief as to a claim is a “final
    judgment” as to such claim under Neb. Rev. Stat. § 29-3002
    (Reissue 2016).29
    [7-9] A party has 30 days from the entry of a judgment or
    final order to appeal the decision of a district court unless a
    party has filed a timely motion which terminates the appeal
    period.30 A motion for reconsideration is the functional equiva-
    lent of a motion to alter or amend a judgment, which termi-
    nates the period in which a party must file a notice of appeal.31
    In cases involving a motion to alter or amend a judgment, a
    critical factor is whether the motion was filed within 10 days
    of the final order, because a timely motion terminates the time
    for filing a notice of appeal.32
    26
    State v. Hudson, 
    273 Neb. 42
    , 
    727 N.W.2d 219
    (2007).
    27
    See, State v. Determan, 
    292 Neb. 557
    , 
    873 N.W.2d 390
    (2016); State v.
    Alfredson, 
    287 Neb. 477
    , 
    842 N.W.2d 815
    (2014); State v. Robinson, 
    287 Neb. 606
    , 
    843 N.W.2d 672
    (2014); State v. Timmens, 
    282 Neb. 787
    , 
    805 N.W.2d 704
    (2011); State v. Yos-Chiguil, 
    281 Neb. 618
    , 
    798 N.W.2d 832
          (2011); State v. Harris, 
    267 Neb. 771
    , 
    677 N.W.2d 147
    (2004).
    28
    See, State v. Determan, supra note 27; State v. Silvers, 
    255 Neb. 702
    , 
    587 N.W.2d 325
    (1998).
    29
    See State v. Hudson, supra note 26.
    30
    See Neb. Rev. Stat. § 25-1912 (Reissue 2016).
    31
    See Clarke v. First Nat. Bank of Omaha, 
    296 Neb. 632
    , 
    895 N.W.2d 284
          (2017).
    32
    See Fitzgerald v. Fitzgerald, 
    286 Neb. 96
    , 
    835 N.W.2d 44
    (2013).
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    (b) Lotter’s Arguments
    Lotter advances two reasons to support his contention that
    his appeal as to the denial of claim 2 was timely. He also
    argues that we have jurisdiction over claim 3. We address the
    arguments separately.
    (i) Motion Was Not Timely
    [10] Lotter’s motion, filed 13 days after the district court
    denied Lotter’s claim 2, did not terminate or extend the time
    to appeal that denial. A motion for reconsideration does not
    terminate the time for appeal and is considered nothing more
    than an invitation to the court to consider exercising its inher-
    ent power to vacate or modify its own judgment.33 In some
    contexts, a motion for reconsideration may also be treated as a
    motion to alter or amend a judgment for purposes of terminat-
    ing the appeal period under Neb. Rev. Stat. § 25-1329 (Reissue
    2016).34 In order to qualify for treatment as a motion to alter
    or amend a judgment, a motion must be filed no later than 10
    days after the entry of judgment, as required under § 25-1329,
    and must seek substantive alteration of the judgment.35 Here,
    the motion did not terminate the time for an appeal, whether
    characterized as a motion for reconsideration (which does not
    terminate the time for appeal) or a motion to alter of amend
    (which must be filed within 10 days in order to terminate the
    appeal time).
    Lotter contends that his motion was timely under the cir-
    cumstances. He asserts that when the court advised him to file
    a motion for reconsideration, the court enlarged the time for
    filing the motion for reconsideration as authorized under Neb.
    Ct. R. Pldg. § 6-1106(b)(1). Lotter quotes the following part of
    § 6-1106(b):
    33
    See Kinsey v. Colfer, Lyons, 
    258 Neb. 832
    , 
    606 N.W.2d 78
    (2000).
    34
    County of Douglas v. Nebraska Tax Equal. & Rev. Comm., 
    296 Neb. 501
    ,
    
    894 N.W.2d 308
    (2017).
    35
    State v. Bellamy, 
    264 Neb. 784
    , 
    652 N.W.2d 86
    (2002).
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    When by these rules or by a notice given thereunder or by
    order of court an act is required or allowed to be done at
    or within a specified time, the court for cause shown may
    at any time in its discretion (1) with or without motion
    or notice order the period enlarged if request therefor is
    made before the expiration of the period originally pre-
    scribed or as extended by a previous order[.]
    But we conclude the rule is inapplicable for two primary
    ­reasons.
    [11] First, the rule of pleading that Lotter relies upon does
    not apply to this proceeding. Postconviction proceedings are
    not governed by the Nebraska Court Rules of Pleading in
    Civil Cases.36
    [12,13] Second, even if the rule did apply, the pertinent
    statute does not allow for an extension of time. Lotter’s dis-
    cussion of the rule omitted the portion of § 6-1106(b) stating
    that “[t]he court may not extend the time for taking any action
    specified in any statute, except to the extent and under the
    conditions stated in the statutes.” Section 25-1329 mandates
    that “[a] motion to alter or amend a judgment shall be filed
    no later than ten days after the entry of the judgment.”37 An
    untimely motion to alter or amend does not terminate the time
    for perfection of an appeal and does not extend or suspend the
    time limit for filing a notice of appeal.38 Allowing an untimely
    motion to alter or amend would have the effect of extending
    the time for filing an appeal. But when the Legislature fixes
    the time for taking an appeal, the courts have no power to
    extend the time directly or indirectly.39
    Lotter’s motion did not terminate the time for filing an
    appeal from the January 17, 2017, order. The appeal time
    expired 30 days after the entry of the order. Thus, the notice
    36
    State v. Robertson, 
    294 Neb. 29
    , 
    881 N.W.2d 864
    (2016).
    37
    § 25-1329.
    38
    See Fitzgerald v. Fitzgerald, supra note 32.
    39
    State v. Marshall, 
    253 Neb. 676
    , 
    573 N.W.2d 406
    (1998).
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    of appeal filed on March 22 was not timely to challenge the
    denial of claim 2.
    (ii) Order Was Not New Judgment
    Lotter next argues that the February 22, 2017, order sub-
    stantially altered the January 17 order and constituted a new
    judgment. The February order accomplished two things. First,
    it denied Lotter’s motion for reconsideration of the denial of
    claim 2. Second, it denied Lotter’s motion for leave to amend
    his postconviction motion to add claim 3. Because Lotter filed
    a notice of appeal within 30 days of that order, he contends
    his appeal is timely as to both claim 2 and claim 3. We con-
    sider each.
    a. Claim 2
    Lotter claims that the February order substantively altered
    its previous order, because it ruled on the merits of claim 2.
    The court stated that it denied claim 2 “for reasons set out
    in its January 17 . . . order” and that it denied the motion for
    reconsideration of that ruling. Thus, the February order did not
    alter the court’s reasons for its denial of claim 2. To the extent
    the court discussed whether claim 2 had any merit, it did so
    in the context of ruling on the motion for leave to amend to
    add claim 3. We conclude Lotter’s appeal as to claim 2 was
    not timely. The court’s February order, which denied Lotter’s
    untimely motion to alter or amend the judgment, was itself not
    an appealable order.40
    b. Claim 3
    Lotter also argues that we have jurisdiction over claim 3, the
    claim that the court denied leave to add. To the extent his argu-
    ment applies to the first appeal, we disagree.
    [14] An order ruling on a motion filed in a pending post-
    conviction case seeking to amend the postconviction motion
    to assert additional claims is not a final judgment and is not
    40
    See Mason v. Cannon, 
    246 Neb. 14
    , 
    516 N.W.2d 250
    (1994).
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    appealable under § 29-3002.41 We have explained that the
    overruling of a motion for leave to amend in order to add a
    claim is not a ruling on the merits of the proposed claim, but,
    rather, is an order precluding the assertion of an additional
    claim.42 At the time the court denied leave to amend, Lotter’s
    claim 1 remained pending. Under the general rule, the denial of
    Lotter’s motion to amend was not a final judgment.
    Lotter also argues that we have jurisdiction because the
    district court ruled on the merits of claim 3. In declining to
    allow the motion for leave to amend, the court provided three
    reasons. The first reason was that the motion to amend was
    filed after the court already denied claim 2. Second, the court
    stated that claim 3 would be time barred. Third, the court stated
    that claim 3 was a “derivative claim” based on claim 2 and that
    the court could have easily denied claim 2 on its merits. But
    the court’s discussion touching on the merits of claim 2 and,
    thus, claim 3 was mere surplusage. After the court determined
    that claim 2 was procedurally barred, it was unnecessary for
    the court to engage in any further analysis as to whether the
    claim would otherwise have merit. This surplusage does not
    create jurisdiction.
    [15] Lotter argues that we have jurisdiction because his
    premature notice of appeal as to claim 3 related forward to the
    date of entry of the final judgment. But this argument depends
    upon Lotter’s assertion that the court decided the merits of
    claim 3. It is true that § 25-1912(2) provides:
    A notice of appeal or docket fee filed or deposited after
    the announcement of a decision or final order but before
    the entry of the judgment, decree, or final order shall be
    treated as filed or deposited after the entry of the judg-
    ment, decree, or final order and on the date of entry.
    However, “to trigger the savings clause for premature notices
    of appeal under § 25-1912(2), an announcement must pertain
    41
    State v. Hudson, supra note 26.
    42
    See 
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    to a decision or order that, once entered, would be final and
    appealable.”43 Because the court did not reach the merits of
    claim 3, its February 22, 2017, order did not announce a “deci-
    sion or final order” within the meaning of § 25-1912(2).
    At this point, we recognize that our analysis in State v.
    Robertson 44 does not directly apply in this situation. There, the
    court considered amendment in the context of a timely filed
    motion to alter or amend a judgment. Moreover, the motion
    there was filed after an order disposing of all of the defend­
    ant’s postconviction claims, all of which were premised on
    ineffective assistance of counsel. Here, Lotter’s motion for
    leave to amend was filed in connection with a motion that
    could not be considered as a timely motion to alter or amend
    a judgment. Further, claim 1 remained pending. Under this cir-
    cumstance, the general rule applies. It necessarily follows that
    our jurisdiction regarding the denial of amendment to assert
    claim 3 lies only in the context of the second appeal following
    the entry of judgment disposing of claim 1.
    For all of the above reasons, we lack jurisdiction over the
    first appeal. Therefore, we do not consider any arguments
    directed to the merits of claim 2.
    2. Second A ppeal
    (a) Refusal to Allow
    Addition of Claim 3
    Our disposition of the first appeal naturally leads to the
    conclusion that in the second appeal, we have jurisdiction of
    the denial of leave to amend to add claim 3. But in Lotter’s
    appellate brief, he did not assign error to the denial of that
    motion. As we have said many times, an alleged error must be
    both specifically assigned and specifically argued in the brief
    of the party asserting the error to be considered by an appellate
    43
    Lindsay Internat. Sales & Serv. v. Wegener, 
    297 Neb. 788
    , 795, 
    901 N.W.2d 278
    , 282 (2017).
    44
    State v. Robertson, supra note 36.
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    court.45 Because Lotter’s brief in the second appeal failed to
    assign error to the denial of the motion for leave to amend, we
    decline to address the argument.
    (b) Merits of Claim 1
    The crux of the second appeal concerns the district court’s
    denial of claim 1. Lotter argues that Nebraska’s capital sen-
    tencing scheme is unconstitutional under the 6th, 8th, and 14th
    Amendments to the U.S. Constitution and under Hurst. But
    we will not resolve his arguments if his motion is time barred
    under § 29-3001(4).
    [16] The Nebraska Postconviction Act contains a 1-year
    time limit for filing a verified motion for postconviction relief,
    which runs from one of four triggering events or August 27,
    2011, whichever is later.46 The triggering events are:
    (a) The date the judgment of conviction became final
    by the conclusion of a direct appeal or the expiration of
    the time for filing a direct appeal;
    (b) The date on which the factual predicate of the
    constitutional claim or claims alleged could have been
    discovered through the exercise of due diligence;
    (c) The date on which an impediment created by state
    action, in violation of the Constitution of the United
    States or the Constitution of Nebraska or any law of this
    state, is removed, if the prisoner was prevented from fil-
    ing a verified motion by such state action;
    (d) 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 retro-
    actively to cases on postconviction collateral review[.]47
    Lotter claims that his motion is not time barred, because
    it was filed within 1 year of the Hurst decision. Thus,
    45
    See State v. McGuire, supra note 25.
    46
    State v. Harrison, 
    293 Neb. 1000
    , 
    881 N.W.2d 860
    (2016).
    47
    § 29-3001(4).
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    Lotter appears to be relying on the triggering event found
    in § 29-3001(4)(d). But Hurst will save Lotter’s otherwise
    untimely motion only if it initially recognized a constitutional
    claim and that newly recognized right is applicable retroac-
    tively to cases on collateral review. And his argument based
    on the Eighth Amendment can be timely only to the extent it
    is based on Hurst.
    [17] We do not read Hurst as announcing a new rule of law.
    Rather, Hurst applied the analysis of Ring to Florida’s sentenc-
    ing scheme. In the introductory paragraph of Hurst, the Court
    stated that Florida’s sentencing scheme was unconstitutional
    because: “The Sixth Amendment requires a jury, not a judge,
    to find each fact necessary to impose a sentence of death.
    A jury’s mere recommendation is not enough.”48 The Court
    stated that it “granted certiorari to resolve whether Florida’s
    capital sentencing scheme violates the Sixth Amendment in
    light of Ring.”49 It later declared that “[t]he analysis the Ring
    Court applied to Arizona’s sentencing scheme applies equally
    to Florida’s.”50 The Hurst Court stated, “In light of Ring,
    we hold that [the defendant’s] sentence violates the Sixth
    Amendment.”51 And the Court overruled two of its prior deci-
    sions “to the extent they allow a sentencing judge to find an
    aggravating circumstance, independent of a jury’s factfind-
    ing, that is necessary for imposition of the death penalty.”52
    The opinion concluded by stating that “Florida’s sentencing
    scheme, which required the judge alone to find the existence of
    an aggravating circumstance, is therefore unconstitutional.”53
    In our view, Hurst merely applied Ring and did not set forth a
    new rule of law for sentencing.
    48
    Hurst v. Florida,    supra note 
    1, 136 S. Ct. at 619
    .
    49
    
    Id., 136 S. Ct.
    at   621.
    50
    
    Id., 136 S. Ct.
    at   621-22.
    51
    
    Id., 136 S. Ct.
    at   622.
    52
    
    Id., 136 S. Ct.
    at   624.
    53
    
    Id. - 143
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    We are not persuaded by Lotter’s and amici’s attempt to
    distinguish Hurst from Ring. Lotter and amici contend that
    Ring was limited to the Sixth Amendment jury trial right and
    identity of the fact finder, while Hurst also implicates the proof
    beyond a reasonable doubt requirement. Lotter maintains that
    Hurst clarified the weighing of facts in aggravation and mitiga-
    tion must be made by a jury. Lotter and amici read too much
    into Hurst.
    [18] The analysis in Hurst made fleeting references to the
    burden of proof and weighing of aggravating and mitigating
    circumstances. The analysis began by citing Alleyne v. United
    States54 for the proposition that the Sixth Amendment right
    to trial by jury, “in conjunction with the Due Process Clause,
    requires that each element of a crime be proved to a jury
    beyond a reasonable doubt.”55 Then, in rejecting an argument
    made by Florida, the Court recognized that under the Florida
    sentencing statute, “[t]he trial court alone must find ‘the facts
    . . . [t]hat sufficient aggravating circumstances exist’ and ‘[t]hat
    there are insufficient mitigating circumstances to outweigh the
    aggravating circumstances.’”56 We cannot transform these iso-
    lated references in the majority’s analysis into a holding that
    a jury must find beyond a reasonable doubt that the aggravat-
    ing circumstances outweigh the mitigating circumstances. The
    Hurst Court said no such thing. “Constitutional rights are not
    defined by inferences from opinions which did not address the
    question at issue.”57 Like Ring, the Hurst decision focused on
    the jury’s role in finding an aggravating circumstance. Later,
    the author of Hurst essentially said as much: “In Hurst v.
    Florida, . . . we held that process, ‘which required the judge
    54
    Alleyne v. United States, 
    570 U.S. 99
    , 
    133 S. Ct. 2151
    , 
    186 L. Ed. 2d 314
          (2013).
    55
    Hurst v. Florida, supra note 
    1, 136 S. Ct. at 621
    .
    56
    
    Id., 136 S. Ct.
    at 622 (emphasis in original).
    57
    Texas v. Cobb, 
    532 U.S. 162
    , 169, 
    121 S. Ct. 1335
    , 
    149 L. Ed. 2d 321
          (2001).
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    alone to find the existence of an aggravating circumstance,’ to
    be unconstitutional.”58
    Most federal59 and state60 courts agree that Hurst did not
    hold a jury must find beyond a reasonable doubt that the
    aggravating factors outweigh the mitigating circumstances.
    The 10th Circuit aptly observed: “[T]he Supreme Court’s
    holding in Hurst only referenced the [finding of aggravating
    circumstances] . . . . The Court thus did not address whether
    the second of the required findings—that mitigating circum-
    stances do not outweigh the aggravating circumstances—is
    also subject to Apprendi’s rule.”61 This view is not universal.62
    One opinion expressing a contrary view called the meaning
    of Hurst “contestable.”63 But we see no ambiguity. The plain
    language of Hurst reveals no holding that a jury must find
    beyond a reasonable doubt that the aggravating factors out-
    weigh the mitigating circumstances. And this court has previ-
    ously concluded that neither Apprendi nor Ring require that
    the determination of mitigating circumstances, the balancing
    58
    Truehill v. Florida, ___ U.S. ___, 
    138 S. Ct. 3
    , 4, 
    199 L. Ed. 2d 272
          (2017) (Sotomayor, J., dissenting from denial of certiorari; Ginsburg and
    Breyer, JJ., join).
    59
    See, Underwood v. Royal, 
    894 F.3d 1154
    (10th Cir. 2018); Runyon
    v. U.S., 
    228 F. Supp. 3d 569
    (E.D. Va. 2017); Garza v. Ryan, No.
    CV-14-01901-PHX-SRB, 
    2017 WL 105983
    (D. Ariz. Jan. 11, 2017)
    (unpublished decision).
    60
    See, e.g., Ex Parte Bohannon, 
    222 So. 3d 525
    (Ala. 2016), cert. denied
    ___ U.S. ___, 
    137 S. Ct. 831
    , 
    197 L. Ed. 2d 72
    (2017); Leonard v. State,
    
    73 N.E.3d 155
    (Ind. 2017); Evans v. State, 
    226 So. 3d 1
    (Miss. 2017), cert.
    denied ___ U.S. ___, 
    138 S. Ct. 2567
    , ___ L. Ed. 2d ___ (2018); Jeremias
    v. State, 
    412 P.3d 43
    (Nev. 2018); State v. Mason, No. 2017-0200, slip op.
    
    2018 Ohio 1462
    , 
    2018 WL 1872180
    (Ohio Apr. 18, 2018).
    61
    Underwood v. Royal, supra note 
    59, 894 F.3d at 1184
    .
    62
    See, e.g., Rauf v. State, 
    145 A.3d 430
    (Del. 2016); Smith v. Pineda, No.
    1:12-cv-196, 
    2017 WL 631410
    (S.D. Ohio Feb. 16, 2017) (unpublished
    decision).
    63
    Rauf v. State, supra note 
    62, 145 A.3d at 435
    (Strine, C.J., concurring;
    Holland and Seitz, JJ., join).
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    function, or the proportionality review be undertaken by
    a jury.64
    [19] Even if we found that Hurst did announce a new law,
    it would not apply retroactively to Lotter. As we concluded
    above, Hurst merely applied Ring. And it is well established
    that Ring does not apply retroactively to cases on collateral
    review. The U.S. Supreme Court declared that “Ring announced
    a new procedural rule that does not apply retroactively to cases
    already final on direct review.”65 And in one of Lotter’s previ-
    ous postconviction appeals, we explained in great detail why
    Ring did not apply retroactively to his case.66
    Likewise, Hurst has no retroactive application to cases on
    collateral review. Because Hurst is tethered to Ring, we see
    no reason why Hurst would apply retroactively on collateral
    review when Ring does not. In considering an identical issue
    raised in Lotter’s petition for habeas corpus, the Nebraska
    federal district court reached the same conclusion.67 Lotter
    appealed that decision, but the Eighth Circuit denied his appli-
    cation for a certificate of appealability 68 and the U.S. Supreme
    Court denied his petition for certiorari.69 We observe that
    several federal circuit courts of appeal have found that Hurst
    does not apply retroactively to cases on collateral review.70
    64
    See State v. Gales, 
    265 Neb. 598
    , 
    658 N.W.2d 604
    (2003).
    65
    Schriro v. Summerlin, 
    542 U.S. 348
    , 358, 
    124 S. Ct. 2519
    , 
    159 L. Ed. 2d 442
    (2004).
    66
    State v. Lotter, supra note 4.
    67
    Lotter v. Britten, 4:04CV3187, 
    2017 WL 744554
    (D. Neb. Feb. 24, 2017)
    (unpublished decision).
    68
    Lotter v. Britten, case No. 17-2000, 
    2017 WL 5015176
    (8th Cir. July 31,
    2017) (unpublished decision).
    69
    Lotter v. Frakes, ___ U.S. ___, 
    138 S. Ct. 926
    , 
    200 L. Ed. 2d 205
    (2018).
    70
    See, Rhines v. Young, 
    899 F.3d 482
    (8th Cir. 2018); In re Coley, 
    871 F.3d 455
    (6th Cir. 2017); Ybarra v. Filson, 
    869 F.3d 1016
    (9th Cir. 2017);
    Lambrix v. Secretary, Florida Dept. of Corrections, 
    851 F.3d 1158
    (11th
    Cir. 2017), cert. denied ___ U.S. ___, 
    138 S. Ct. 217
    , 
    199 L. Ed. 2d 142
    ;
    In re Jones, 
    847 F.3d 1293
    (10th Cir. 2017).
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    Other federal courts agree.71 Most state courts have reached
    the same conclusion.72 And we are not swayed by Delaware’s
    decision to give retroactive effect to Rauf v. State,73 its opinion
    interpreting Hurst.74
    Although Lotter filed his motion for postconviction relief
    within 1 year of the Hurst decision, that decision is not
    a “newly recognized right [that] has been made applicable
    retroactively to cases on postconviction collateral review.”75
    Accordingly, Lotter’s claim 1 is time barred.
    VI. CONCLUSION
    We conclude that we lack jurisdiction over Lotter’s first
    appeal. Because we agree with the district court that the
    claim raised in Lotter’s second appeal is barred by the limita-
    tion period set forth in § 29-3001 and that subsection (4)(d)
    does not extend the limitation period, we affirm the court’s
    decision.
    A ppeals in Nos. S-17-325, S-17-338, and
    S-17-339 dismissed.
    Judgment and final order in Nos. S-17-1126,
    S-17-1127, and S-17-1129 affirmed.
    Miller-Lerman and Freudenberg, JJ., not participating.
    71
    See, Taylor v. Dunn, No. 14-0439-WS-N, 
    2018 WL 575670
    (S.D.
    Ala. Jan. 25, 2018) (unpublished decision); Styers v. Ryan, No.
    CV-12-02332-PHX-JAT, 
    2017 WL 3641454
    (D. Ariz. Aug. 24, 2017)
    (unpublished decision); Gapen v. Robinson, No. 3:08-cv-280, 
    2017 WL 3524688
    (S.D. Ohio Aug. 15, 2017) (unpublished decision).
    72
    See, Reeves v. State, 
    226 So. 3d 711
    (Ala. Crim. App. 2016), cert. denied
    ___ U.S. ___, 
    138 S. Ct. 22
    , 
    199 L. Ed. 2d 341
    (2017); Hitchcock v.
    State, 
    226 So. 3d 216
    (Fla. 2017), cert. denied ___ U.S. ___, 
    138 S. Ct. 513
    , 
    199 L. Ed. 2d 396
    ; State v. Jackson, No. 2017-T-0041, slip op. 
    2018 Ohio 2146
    , 
    2018 WL 2676465
    (Ohio App. June 4, 2018) (unpublished
    decision).
    73
    Rauf v. State, supra note 62.
    74
    See Powell v. Delaware, 
    153 A.3d 69
    (Del. 2016).
    75
    § 29-3001(4)(d).
    

Document Info

Docket Number: S-17-325, S-17-338, S-17-339, S-17-1126, S-17-1127, S-17-1129

Citation Numbers: 301 Neb. 125

Filed Date: 9/28/2018

Precedential Status: Precedential

Modified Date: 12/13/2019

Authorities (28)

Mason v. Cannon , 246 Neb. 14 ( 1994 )

Fitzgerald v. Fitzgerald , 286 Neb. 96 ( 2013 )

State v. Marshall , 253 Neb. 676 ( 1998 )

State v. Lotter , 266 Neb. 245 ( 2003 )

State Ex Rel. Serrano v. Bellamy , 264 Neb. 784 ( 2002 )

State v. Hudson , 273 Neb. 42 ( 2007 )

State v. Harris , 267 Neb. 771 ( 2004 )

State v. Robertson , 294 Neb. 29 ( 2016 )

Clarke v. First Nat. Bank of Omaha , 296 Neb. 632 ( 2017 )

Lindsay Internat. Sales & Serv. v. Wegener , 297 Neb. 788 ( 2017 )

State v. Lotter , 301 Neb. 125 ( 2018 )

State v. Gales , 265 Neb. 598 ( 2003 )

State v. Coble , 299 Neb. 434 ( 2018 )

State v. McGuire , 299 Neb. 762 ( 2018 )

State v. Silvers , 255 Neb. 702 ( 1998 )

State v. Lotter , 255 Neb. 889 ( 1999 )

State v. Lotter , 255 Neb. 456 ( 1998 )

Kinsey v. Colfer, Lyons, Wood, Malcom & Goodwin , 258 Neb. 832 ( 2000 )

State v. Harrison , 293 Neb. 1000 ( 2016 )

State v. Mason (Slip Opinion) , 153 Ohio St. 3d 476 ( 2018 )

View All Authorities »