State v. Epp ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/04/2018 08:09 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. EPP
    Cite as 
    299 Neb. 703
    State of Nebraska, appellee, v.
    William A. Epp, appellant.
    ___ N.W.2d ___
    Filed April 20, 2018.    No. S-17-297.
    1.	 Limitations of Actions. If the facts in a case are undisputed, the issue
    as to when the statute of limitations begins to run is a question of law.
    2.	 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.
    3.	 Constitutional Law: Rules of the Supreme Court: Courts: Statutes.
    Strict compliance with Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) is nec-
    essary whenever a litigant challenges the constitutionality of a statute,
    regardless of how that constitutional challenge may be characterized.
    4.	 Postconviction: Proof. If a postconviction motion alleges only conclu-
    sions 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.
    5.	 Postconviction: Justiciable Issues: Right to Counsel: Appeal and
    Error. Where the assigned errors in the postconviction petition before
    the district court are either procedurally barred or without merit, estab-
    lishing that the postconviction action contained no justiciable issue of
    law or fact, it is not an abuse of discretion to fail to appoint appellate
    counsel for an indigent defendant.
    Appeal from the District Court for Gage County: Vicky L.
    Johnson, Judge. Affirmed.
    William A. Epp, pro se.
    Douglas J. Peterson, Attorney General, and Erin E. Tangeman
    for appellee.
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    STATE v. EPP
    Cite as 
    299 Neb. 703
    Heavican, C.J., Miller-Lerman, and Stacy, JJ., and Luther
    and O’Gorman, District Judges.
    Heavican, C.J.
    NATURE OF CASE
    This case presents an appeal from the dismissal of a motion
    for postconviction relief without an evidentiary hearing or
    the appointment of counsel. The district court dismissed the
    motion as filed outside the 1-year limitations period set forth in
    
    Neb. Rev. Stat. § 29-3001
     (Reissue 2016). We affirm.
    BACKGROUND
    In 2007, William A. Epp was charged with robbery, use
    of a deadly weapon to commit a felony, and possession of a
    deadly weapon by a felon. The information also alleged that
    Epp was a habitual criminal. A jury convicted Epp of robbery
    and possession of a deadly weapon by a felon, but acquitted
    him of use of a deadly weapon to commit a felony. Epp was
    sentenced to 60 to 60 years’ imprisonment on both his convic-
    tion for robbery and his conviction for possession of a deadly
    weapon by a felon. The court ordered the sentences to be
    served consecutively.
    Epp appealed his convictions and sentences, which were
    affirmed by this court.1 As pertinent here, we found in State
    v. Epp 2 that we did not need to address Epp’s argument
    that 
    Neb. Rev. Stat. § 25-1233
     (Reissue 2016), which lim-
    its transportation of inmate witnesses, was unconstitutional,
    because the trial court did not err in finding that the inmate
    testimony Epp proffered was inadmissible hearsay. We also
    rejected Epp’s argument that there was insufficient evidence
    supporting his conviction for possession of a deadly weapon
    by a felon. Finally, we rejected Epp’s argument that the trial
    court had erred in admitting evidence supporting habitual
    1
    See State v. Epp, 
    278 Neb. 683
    , 
    773 N.W.2d 356
     (2009).
    2
    
    Id.
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    Nebraska Supreme Court A dvance Sheets
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    STATE v. EPP
    Cite as 
    299 Neb. 703
    criminal enhancement. Epp’s sentences became final on
    October 27, 2009.
    Epp filed a motion for postconviction relief on November
    28, 2016, alleging four claims for relief. Epp alleged, first,
    that the 1-year period of limitation set forth in § 29-3001
    violated the ex post facto clauses of the U.S. and Nebraska
    Constitutions. Second, Epp alleged that 
    Neb. Rev. Stat. § 29-2221
     (Reissue 2016) violates the Sixth Amendment right
    to an impartial jury by allowing a judge instead of a jury to
    find the existence of prior convictions. Third, Epp alleged
    there was insufficient evidence for his conviction of posses-
    sion of a deadly weapon by a felon, which conviction was
    allegedly inconsistent with the jury’s acquittal on the charge
    of use of a deadly weapon to commit a felony. Fourth, Epp
    alleged that § 25-1233 violated equal protection under the
    U.S. and Nebraska Constitutions.
    The district court dismissed Epp’s motion without an evi-
    dentiary hearing or the appointment of counsel. The court
    found that the postconviction motion was barred by the
    1-year period of limitation set forth in § 29-3001(4)(e), which
    provides that the 1-year period will run from the date of
    August 27, 2011 (the effective date of the statute’s enact-
    ment), if the other subsections do not apply. The court found
    no merit to Epp’s argument that the limitations period was
    unconstitutional.
    Alternatively to the court’s conclusion that the motion was
    filed outside the 1-year limitations period, the court concluded
    that the allegations in the motion for postconviction relief
    either failed to state a claim that Epp’s convictions were void
    or voidable, lacked merit as a matter of law, or were proce-
    durally barred. Specifically, the court found that Epp’s claim
    regarding the constitutionality of § 29-3001(4)(e) failed to
    allege a constitutional violation that would render his convic-
    tions void or voidable; thus, it did not present a valid claim
    for postconviction relief. The court concluded Epp’s argument
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    STATE v. EPP
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    299 Neb. 703
    regarding § 29-2221 had no merit and has been rejected by
    this court in State v. Johnson.3 Lastly, the court found that
    Epp’s claims challenging the constitutionality of § 25-1233
    and the sufficiency of the evidence to support his conviction
    for felon in possession were litigated on direct appeal and,
    therefore, procedurally barred.
    Epp appealed. We moved the appeal to our docket on our
    own motion, in accordance with this court’s authority to regu-
    late the caseloads of the appellate courts of this state.4 Epp
    did not file notice that he was raising an issue involving the
    constitutionality of a statute as required by Neb. Ct. R. App. P.
    § 2-109(E) (rev. 2014).
    ASSIGNMENTS OF ERROR
    Epp assigns that the district court erred in failing to (1)
    grant an evidentiary hearing, (2) appoint counsel, and (3) grant
    postconviction relief.
    STANDARD OF REVIEW
    [1] If the facts in a case are undisputed, the issue as to when
    thestatute of limitations begins to run is a question of law.5
    [2] Failure to appoint counsel in postconviction proceedings
    is not error in the absence of an abuse of discretion.6
    ANALYSIS
    Postconviction motions are subject to the limitations period
    set forth in § 29-3001(4), which states:
    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:
    3
    State v. Johnson, 
    290 Neb. 369
    , 
    859 N.W.2d 877
     (2015).
    4
    See 
    Neb. Rev. Stat. § 24-1106
    (3) (Supp. 2017).
    5
    State v. Huggins, 
    291 Neb. 443
    , 
    866 N.W.2d 80
     (2015).
    6
    State v. Ely, 
    295 Neb. 607
    , 
    889 N.W.2d 377
     (2017).
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    STATE v. EPP
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    (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; or
    (e) August 27, 2011.
    The parties agree that subsections (4)(a) through (d) do not
    apply. Under the facts of this case, the latest date from which
    the 1-year limitations period runs is August 27, 2011, as set
    forth in § 29-3001(4)(e). Epp argues, however, that applica-
    tion of any provision of § 29-3001 violates the ex post facto
    clauses of the U.S. and Nebraska Constitutions.7
    [3] Epp did not file notice as required by § 2-109(E).
    Section 2-109(E) requires that a party presenting a case involv-
    ing the federal or state constitutionality of a statute must file
    and serve notice thereof with the Supreme Court Clerk by a
    separate written notice in a petition to bypass at the time of
    filing such party’s brief. Strict compliance with § 2-109(E) is
    necessary whenever a litigant challenges the constitutionality
    of a statute, regardless of how that constitutional challenge
    may be characterized.8 Therefore, we do not address Epp’s
    7
    U.S. Const. art. I, § 10, and Neb. Const. art. I, § 16.
    8
    State v. Boche, 
    294 Neb. 912
    , 
    885 N.W.2d 523
     (2016).
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    claim that § 29-3001(4)(e) violates prohibitions against ex post
    facto laws. However, we note that we recently held in State
    v. Amaya 9 that § 29-3001 does not violate the ex post facto
    clauses of the U.S. and Nebraska Constitutions.
    [4] There is no dispute that Epp’s motion for postconviction
    relief, filed on November 28, 2016, was outside the 1-year
    limitations period set forth in § 29-3001(4)(e). Accordingly,
    the district court did not err in dismissing the motion as out-
    side the limitations period without conducting an evidentiary
    hearing. 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.10
    [5] For similar reasons, the district court did not err in
    denying Epp’s motion for appointment of counsel. Under the
    Nebraska Postconviction Act, it is within the discretion of the
    trial court as to whether counsel shall be appointed to repre-
    sent the defendant.11 Where the assigned errors in the postcon-
    viction petition before the district court are either procedurally
    barred or without merit, establishing that the postconviction
    action contained no justiciable issue of law or fact, it is not
    an abuse of discretion to fail to appoint appellate counsel for
    an indigent defendant.12 Epp’s motion presented no justiciable
    issue of law or fact because it was barred by the limitations
    period set forth by § 29-3001(4)(e).
    CONCLUSION
    Because Epp’s motion for postconviction relief was filed
    more than 1 year from August 27, 2011, it was untimely.13 We
    9
    State v. Amaya, 
    298 Neb. 70
    , 
    902 N.W.2d 675
     (2017).
    10
    State v. Goynes, 
    293 Neb. 288
    , 
    876 N.W.2d 912
     (2016).
    11
    State v. Custer, 
    298 Neb. 279
    , 
    903 N.W.2d 911
     (2017).
    12
    
    Id.
    13
    See § 29-3001(4)(e).
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    STATE v. EPP
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    299 Neb. 703
    affirm the district court’s dismissal of the motion without an
    evidentiary hearing or the appointment of counsel.
    A ffirmed.
    Funke, J., participating on briefs.
    Wright and Cassel, JJ., not participating.