State v. Torres , 304 Neb. 753 ( 2020 )


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  • Nebraska Supreme Court Online Library
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    02/14/2020 09:06 AM CST
    - 753 -
    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. TORRES
    Cite as 
    304 Neb. 753
    State of Nebraska, appellee, v.
    Marco E. Torres, Jr., appellant.
    ___ N.W.2d ___
    Filed January 3, 2020.   No. S-19-276.
    1. Postconviction: Constitutional Law: Appeal and Error. 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 affirmatively show that the defendant is entitled to
    no relief.
    2. Postconviction: Appeal and Error. Appeals of postconviction pro-
    ceedings will be reviewed independently if they involve a question
    of law.
    Appeal from the District Court for Hall County: James D.
    Livingston, Judge, Retired. Affirmed.
    Marco E. Torres, Jr., pro se.
    Douglas J. Peterson, Attorney General, and James D. Smith,
    Solicitor General, for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Marco E. Torres, Jr., appeals from the order of the district
    court for Hall County which denied his third motion for post-
    conviction relief without an evidentiary hearing. Torres asserts
    that the Legislature’s statute providing for the repeal of the
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. TORRES
    Cite as 
    304 Neb. 753
    death penalty, 2015 Neb. Laws, L.B. 268, went into effect,
    thereby changing his death sentence to life imprisonment.
    Torres further asserts that the rejection of L.B. 268 by public
    referendum reimposed a death sentence, that the referendum
    was constitutionally impermissible in a variety of ways, and
    that he was harmed thereby. We find no merit to Torres’ claims
    and affirm the order of the district court.
    STATEMENT OF FACTS
    In 2009, a jury found Torres guilty of two counts of first
    degree murder and other felony offenses. He was sentenced to
    death for each of the murders and sentenced to prison terms for
    the other felonies. We affirmed his convictions and sentences
    on direct appeal. State v. Torres, 
    283 Neb. 142
    , 
    812 N.W.2d 213
    (2012).
    Torres first moved for postconviction relief in 2013, raising
    claims of prosecutorial misconduct and ineffective assistance
    of counsel. The district court denied postconviction relief after
    conducting an evidentiary hearing. We affirmed in State v.
    Torres, 
    295 Neb. 830
    , 
    894 N.W.2d 191
    (2017).
    In his second postconviction proceeding, filed on June 14,
    2017, Torres claimed that his death sentences were unconsti-
    tutional under Hurst v. Florida, ___ U.S. ___, 
    136 S. Ct. 616
    ,
    
    193 L. Ed. 2d 504
    (2016), and Johnson v. U.S., ___ U.S. ___,
    
    135 S. Ct. 2551
    , 
    192 L. Ed. 2d 569
    (2015). The district court
    found that Torres’ motion for postconviction relief was time
    barred under the 1-year limitations period of Neb. Rev. Stat.
    § 29-3001(4) (Reissue 2016) and denied relief without con-
    ducting an evidentiary hearing. We affirmed in State v. Torres,
    
    300 Neb. 694
    , 
    915 N.W.2d 596
    (2018).
    Torres filed a third postconviction proceeding on December
    4, 2017. It is the denial of relief from the third postconviction
    action which gives rise to this appeal. In his third postconvic-
    tion motion, Torres generally alleged that he was entitled to
    relief based on the proposition that L.B. 268 changed his sen-
    tence from the death penalty to life imprisonment and the 2016
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. TORRES
    Cite as 
    304 Neb. 753
    public referendum which “reject[ed]” L.B. 268 changed it back
    to a death sentence. Neb. Const. art. III, § 3.
    Torres specifically alleged that the referendum reimposed
    the death penalty on him and that such imposition was cruel
    and unusual punishment, violated due process, constituted an
    unconstitutional bill of attainder that targeted the individuals
    on death row, and violated separation of powers. The district
    court rejected Torres’ claims based on the insufficiency of
    allegations in the motion and denied the third postconviction
    motion without an evidentiary hearing. Torres appeals.
    ASSIGNMENTS OF ERROR
    Torres contends, summarized and restated, that (1) the dis-
    trict court’s analysis regarding the powers of the Legislature
    to enact sentencing laws was flawed and (2) the referendum
    process and result amounted to imposition of cruel and unusual
    punishment, violated due process, constituted an impermissible
    bill of attainder, and violated separation of powers.
    Because our analysis differs from that of the district court
    and eclipses Torres’ arguments regarding the powers of the
    Legislature to enact sentencing statutes, it is not necessary to
    consider Torres’ first assignment of error.
    STANDARDS OF REVIEW
    [1,2] 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 affirma-
    tively show that the defendant is entitled to no relief. State v.
    Allen, 
    301 Neb. 560
    , 
    919 N.W.2d 500
    (2018). Appeals of post-
    conviction proceedings will be reviewed independently if they
    involve a question of law. See State v. Thieszen, 
    295 Neb. 293
    ,
    
    887 N.W.2d 871
    (2016).
    ANALYSIS
    As an initial matter, we recognize that the State has suggested
    that Torres’ current postconviction motion is procedurally
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. TORRES
    Cite as 
    304 Neb. 753
    barred. Although there may be merit to this argument, as we
    recognized in Sandoval v. Ricketts, 
    302 Neb. 138
    , 
    922 N.W.2d 222
    (2019), a postconviction action may be a suitable pro-
    cedure to examine the claims that are central to this death
    penalty case, and we therefore proceed to consideration of
    the merits.
    We have reviewed Torres’ motion for postconviction relief,
    and although our reasoning differs from that of the district
    court, we agree with the determination that Torres has failed to
    allege sufficient facts to demonstrate a violation of his consti-
    tutional rights. See State v. 
    Allen, supra
    . The allegations assert
    that certain constitutional guarantees were violated; however,
    we have recently considered and rejected at length the essential
    substance of each of Torres’ allegations. See, State v. Mata,
    ante p. 326, 
    934 N.W.2d 475
    (2019); State v. Jenkins, 
    303 Neb. 676
    , 
    931 N.W.2d 851
    (2019).
    The principal but flawed premise for Torres’ constitutional
    claims is that L.B. 268 went into effect, thereby changing his
    death sentence to life imprisonment, and that the successful
    referendum reimposed the death penalty. In State v. Jenkins, we
    concluded that “the filing of petitions on August 26, 2015—
    prior to the effective date of L.B. 268—suspended [L.B. 268’s]
    operation until Nebraskans effectively rejected the bill by vot-
    ing to repeal it. . . . L.B. 268 never went into effect . . . 
    .” 303 Neb. at 710-11
    , 931 N.W.2d at 879.
    In State v. Mata, we described the process as follows:
    In May 2015, the Nebraska Legislature passed 2015
    Neb. Laws, L.B. 268, which abolished the death penalty
    in Nebraska, and then overrode the Governor’s veto of
    the bill. Within L.B. 268, the Legislature provided that
    “in any criminal proceeding in which the death penalty
    has been imposed but not carried out prior to the effec-
    tive date of this act, such penalty shall be changed to life
    imprisonment.” The Legislature adjourned sine die on
    May 29. Because L.B. 268 did not contain an emergency
    clause, it was to take effect on August 30.
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. TORRES
    Cite as 
    304 Neb. 753
    Following the passage of L.B. 268, opponents of the
    bill sponsored a referendum petition to repeal it. On
    August 26, 2015, the opponents filed with the Nebraska
    Secretary of State signatures of approximately 166,000
    Nebraskans in support of the referendum. On October
    16, the Secretary of State certified the validity of suf-
    ficient signatures. Enough signatures were verified to
    suspend the operation of L.B. 268 until the referendum
    was approved or rejected by the electors at the upcoming
    election. During the November 2016 election, the refer-
    endum passed and L.B. 268 was repealed, that is, in the
    language of the Constitution, the act of the Legislature
    was “‘reject[ed].’”
    Ante at 
    331-32, 934 N.W.2d at 480
    . See, also, Neb. Const. art.
    III, § 3; State v. 
    Jenkins, supra
    .
    As we addressed in our analysis of comparable claims in
    State v. Mata, the essential substance of claims based on cruel
    and unusual punishment, due process, and bill of attainder
    which assert that L.B. 268 changed a death sentence to life
    imprisonment fails “because L.B. 268 was suspended and
    no such changes in his sentence occurred.” Ante at 
    340, 934 N.W.2d at 485
    .
    Torres contends that the anxiety created by the potential
    modification of a sentence is cruel and unusual punishment.
    However, we have concluded that such potential does not rise
    to an Eighth Amendment violation. See State v. 
    Mata, supra
    .
    Accordingly, we reject this claim.
    Torres also contends that his due process rights were vio-
    lated when the successful referendum “reinstat[ed] the capital
    sentences en masse.” Brief for appellant at 26. He claims he
    was denied the benefits of individualized sentencing. However,
    as we have explained, no resentencing occurred, and therefore
    this argument fails.
    In a similar manner, Torres’ assertion that the rejection
    of L.B. 268 by referendum was essentially a bill of attain-
    der which was directed at him also fails. Torres specifically
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. TORRES
    Cite as 
    304 Neb. 753
    claims that the “repeal of LB 268 by referendum sentenced
    . . . Torres to death.” Brief for appellant at 31. As we have
    explained, Torres’ death sentence was not suspended and the
    imposition of the death penalty was not a direct consequence
    of the referendum.
    Finally, to the extent that Torres’ claim is based on a viola-
    tion of separation of powers, we addressed and rejected this
    claim in State v. Mata, ante p. 326, 343, 
    934 N.W.2d 475
    , 487
    (2019), in which we concluded that the claim fails “because the
    result of the referendum is not invalidated even if such actions
    [of the Governor and other executive officers in the referendum
    process] were constitutionally improper.” The remedy is not
    invalidation of the referendum, but instead removal from “the
    violating position.” 
    Id. at 344,
    934 N.W.2d at 487.
    CONCLUSION
    We have reviewed de novo the district court’s determination
    that Torres failed to allege sufficient facts that demonstrate a
    violation of his constitutional rights and find no error in this
    determination. Accordingly, we affirm the district court’s order
    which denied postconviction relief.
    Affirmed.
    Freudenberg, J., not participating.