State v. Hill , 308 Neb. 511 ( 2021 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    04/29/2021 08:08 AM CDT
    - 511 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    State of Nebraska, appellee,
    v. Teon D. Hill, appellant.
    ___ N.W.2d ___
    Filed February 26, 2021.   No. S-20-429.
    1. Criminal Law: Motions for New Trial: Evidence: Appeal and Error.
    A de novo standard of review applies when an appellate court is review-
    ing a trial court’s dismissal of a motion for a new trial under 
    Neb. Rev. Stat. § 29-2102
    (2) (Reissue 2016) without conducting an eviden-
    tiary hearing.
    2. Criminal Law: Motions for New Trial: Evidence. 
    Neb. Rev. Stat. § 29-2102
     (Reissue 2016) sets out what evidence must accompany a
    motion for new trial.
    Appeal from the District Court for Douglas County:
    Kimberly Miller Pankonin, Judge. Affirmed.
    Gregory A. Pivovar for appellant.
    Douglas J. Peterson, Attorney General, and Kimberly A.
    Klein for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Teon D. Hill appeals the order of the district court for
    Douglas County which dismissed his motion for new trial
    based on newly discovered evidence. We affirm.
    - 512 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    STATEMENT OF FACTS
    Following a jury trial in 2016, Hill was convicted of first
    degree murder and two counts of possession of a deadly weapon
    by a prohibited person. The district court sentenced Hill to
    imprisonment for life for the murder conviction and to 15 to 20
    years’ imprisonment for each of the weapon convictions. The
    court ordered the sentences for the weapon convictions to be
    served concurrently with one another and consecutively to the
    sentence for the murder conviction. We affirmed Hill’s convic-
    tions and sentences in a decision filed January 19, 2018. State
    v. Hill, 
    298 Neb. 675
    , 
    905 N.W.2d 668
     (2018).
    On January 16, 2019, Hill filed a pro se motion that he titled
    “Motion for New Trial.” In the motion, Hill stated that he was
    moving for a new trial based on “errors in the proceedings.” He
    referred to the new trial statutes, 
    Neb. Rev. Stat. §§ 29-2101
    through 29-2103 (Reissue 2016), and stated that the statutes
    allow a defendant to bring a motion for new trial based upon
    newly discovered evidence within 5 years of the date of the
    verdict. Section 29-2101 provides that a defendant may move
    for a new trial on certain specified grounds, including “(5)
    newly discovered evidence material for the defendant which
    he or she could not with reasonable diligence have discovered
    and produced at the trial.” Section 29-2103(3) provides that
    for most of the grounds listed in § 29-2101, the motion must
    be filed within 10 days after the verdict, but § 29-2103(4) pro-
    vides that a motion for new trial based on § 29-2101(5) “shall
    be filed within a reasonable time after the discovery of the new
    evidence” and generally “cannot be filed more than five years
    after the date of the verdict.”
    The motion filed by Hill was 58 pages long, with 60 pages
    of attachments. The motion contained a narrative consisting of
    over 100 paragraphs of allegations. The first several paragraphs
    contained general allegations of various “irregularities” in the
    proceedings, as well as “ineffective assistance of counsel”
    and “prosecutorial misconduct” that, Hill contended, entitled
    him to a new trial. He also claimed that “the verdict cannot
    - 513 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    be sustained by sufficient evidence and is contrary to the
    law.” Hill alleged that “the material for his defense is newly
    discovered evidence that could not have been discovered, with
    reasonable diligence, prior to the time of his trial.” He further
    alleged that “all facts in this motion was [sic] only discovered
    once he was able to examine the documents which was [sic]
    received on March 10th 2018 long after his trial.” The remain-
    ing paragraphs included numerous allegations, some of which
    he grouped in categories, including “due process rights were
    violated,” “irregularities and misconduct before, during and
    after the proceedings,” and “[a]ctual innocent [sic] claim[s].”
    None of the attachments were “in the form of affidavits, depo-
    sitions, or oral testimony,” in violation of § 29-2102(1).
    On February 18, 2019, the district court entered an order in
    which it directed the State to file a response to Hill’s motion
    for new trial within 90 days. Hill objected to the order and
    ­contended that the new trial statutes do not allow for a response
    by the State before the court has decided whether the motion
    warrants a hearing and that instead, the statutes provide that the
    motion is to be served on the prosecuting attorney only after
    the court has determined that a hearing on the motion should
    be granted. The court overruled Hill’s objection and reasoned
    that the new trial statutes did not prohibit the court from seek-
    ing a response from the State before it ruled on whether Hill’s
    motion set forth sufficient facts to warrant a hearing. The court
    stated that its order was not made pursuant to procedure out-
    lined in the statutes, but instead pursuant to its “inherent power
    to request legal argument from a party on a pending motion
    before it.”
    On May 21, 2019, the State filed a response in which it
    argued that Hill’s motion failed to set forth sufficient facts
    and should therefore be dismissed without a hearing pursu-
    ant to § 29-2102(2). The State contended that Hill’s motion
    could “be viewed as a complaint as to how his trial was
    handled” and noted that “the vast majority of paragraphs in the
    motion start out with the phrase ‘there was irregularities and
    - 514 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    misconduct in the proceedings.’” The State further contended
    that there was not “any newly discovered evidence mentioned
    in the motion,” and it argued that to the extent Hill referred to
    any sort of evidence, such evidence (1) would be inadmissible
    at trial based on hearsay or relevance, (2) could have been
    discovered at the time of trial, and (3) did not materially affect
    substantial rights of Hill because it would not have changed
    the result of the case. The State further contended that to the
    extent Hill set forth a claim of actual innocence, such a claim
    must be asserted in a postconviction motion rather than in a
    motion for new trial.
    About 1 year later, on May 14, 2020, the court entered an
    order in which it dismissed Hill’s motion for new trial. The
    court stated that Hill sought a new trial based on newly dis-
    covered evidence pursuant to § 29-2101(5) and that he also
    appeared to seek relief pursuant to a claim of actual inno-
    cence. The court’s order replicated the argument in the State’s
    response with minor revisions.
    Hill appeals the district court’s order which dismissed his
    motion. Hill, who appeared pro se in the district court, is rep-
    resented by counsel on appeal.
    ASSIGNMENTS OF ERROR
    Hill claims, restated and renumbered, that the district court
    erred when it (1) failed to treat his motion as a postconvic-
    tion motion and to consider his claims, including those of
    actual innocence, as postconviction claims; (2) ordered the
    State to respond to his motion and 1 year later used the State’s
    response, with minimal modifications, as its order overruling
    his motion; and (3) dismissed his motion for new trial based
    on newly discovered evidence without an evidentiary hearing.
    STANDARD OF REVIEW
    [1] A de novo standard of review applies when an appel-
    late court is reviewing a trial court’s dismissal of a motion
    for a new trial under § 29-2102(2) without conducting an
    - 515 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    evidentiary hearing. See State v. Cross, 
    297 Neb. 154
    , 
    900 N.W.2d 1
     (2017).
    ANALYSIS
    In his brief on appeal, Hill asserts that several allegations
    in his motion set forth proper claims for new trial based on
    newly discovered evidence and that the district court erred
    when it dismissed his motion without an evidentiary hearing.
    However, Hill appears to concede that most of the numerous
    allegations set forth in his motion were more appropriate for
    a motion for postconviction relief. He therefore contends that
    the district court should have treated his motion as a motion
    for postconviction relief and considered whether his motion
    set forth postconviction claims that warranted an eviden-
    tiary hearing.
    Hill further contends that, to the extent the motion was
    properly treated as a motion for new trial based on newly
    discovered evidence pursuant to § 29-2101(5), the district
    court erred when it ordered the State to respond to his motion
    before the court had determined whether an evidentiary hearing
    was warranted. In this regard, Hill argues that the order was
    improper because it was not authorized by the new trial stat-
    utes. He also contends that the court “abrogat[ed]” its decision­
    making authority to the State because it used most of the
    language from the State’s response to draft its order dismissing
    his motion.
    As discussed below, we resolve Hill’s claims of error as
    follows: First, we determine that rather than treating Hill’s
    motion as a postconviction motion, the district court did
    not err when it treated his motion consistent with the man-
    ner by which Hill had denominated the pleading, that is as a
    motion for new trial based on newly discovered evidence. We
    next determine, based on our de novo review, that because
    Hill failed to provide the supporting documents required by
    § 29-2102(1), the court properly dismissed the motion pur-
    suant to § 29-2102(2). Finally, because our de novo review
    - 516 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    indicates that the district court did not err when it dismissed
    Hill’s motion, we need not address the contentions Hill makes
    regarding the process used by the district court except to com-
    ment on the lengthy amount of time the court had the motion
    under submission.
    District Court Did Not Err When It Treated Hill’s
    Motion as Motion for New Trial Rather Than
    Motion for Postconviction Relief.
    Hill claims that the district court erred when it failed to treat
    his pleading as a motion for postconviction relief and failed
    to review his allegations, including those of actual innocence,
    as postconviction claims. He argues that the court should have
    looked to the substance of his allegations rather than the form
    of the motion. We conclude that the district court did not err
    when it treated his motion consistent with the manner by which
    Hill denominated the pleading, that is as a motion for new trial
    based on newly discovered evidence.
    Hill asserts in his brief that the motion he filed is “basically
    a motion for Post-conviction relief with a few issues of Motion
    for a New Trial, newly discovered evidence thrown in and a
    healthy dose of issues that lean toward [his] actual innocence.”
    Brief for appellant at 32. With regard to his allegations of
    actual innocence, Hill argues that because his motion “is more
    or less in the form of ” a postconviction motion, his “claims of
    actual innocence are more or less brought in a postconviction
    action.” Id. at 38-39.
    The motion filed by Hill was titled “Motion for New Trial”
    and referenced the new trial statutes, including § 29-2101(5)
    regarding motions for trial based on newly discovered evi-
    dence and § 29-2103(4), which provides the time for filing a
    motion for new trial based on newly discovered evidence. The
    motion did not include citation to the postconviction statutes,
    
    Neb. Rev. Stat. § 29-3001
     et seq. (Reissue 2016), and it did not
    include an express assertion that Hill was seeking relief under
    such statutes or that he had filed his motion within the time
    allowed for filing a motion for postconviction relief.
    - 517 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    Despite the fact that Hill explicitly characterized his motion
    as a motion for new trial, he argues on appeal that the district
    court should have ignored his characterization, reviewed the
    motion for its substance, and treated the motion as a motion
    for postconviction relief. Hill relies on State v. Bellamy, 
    264 Neb. 784
    , 
    652 N.W.2d 86
     (2002), to argue that a “post judg-
    ment motion must be reviewed based on the relief sought and
    not based on its title.” Brief for appellant at 31. We reject
    Hill’s argument.
    In State v. Bellamy, 
    supra,
     we considered a jurisdictional
    question regarding whether the 30-day period to file a notice
    of appeal was terminated by a motion that the appellant titled
    “Motion for Reconsideration.” See 
    Neb. Rev. Stat. § 25-1912
    (Cum. Supp. 2020). Under the relevant statutes, the running of
    the time for filing a notice of appeal may be terminated by the
    filing of certain motions, including, inter alia, a motion to alter
    or amend a judgment under 
    Neb. Rev. Stat. § 25-1329
     (Reissue
    2016). The question in State v. Bellamy, 
    supra,
     therefore was
    whether the motion titled “Motion for Reconsideration” should
    be treated as a motion to alter or amend a judgment for pur-
    poses of determining the time for filing a notice of appeal.
    We reasoned that “[a] determination as to whether a motion,
    however titled, should be deemed a motion to alter or amend
    a judgment depends upon the contents of the motion, not its
    title,” and we held that “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.” State v. Bellamy, 
    264 Neb. at 789
    , 
    652 N.W.2d at 90
    .
    The holding in State v. Bellamy, 
    supra,
     should be read as
    specifically related to determining whether a motion may be
    considered a motion to alter or amend a judgment for purposes
    of determining the time to file a notice of appeal. It should
    not be read as a general requirement that a court must review
    every filing to address whether the party filed the correct type
    - 518 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    of motion or whether the party should have filed a different
    motion to achieve the result the party seeks. Hill simply reads
    State v. Bellamy, 
    supra,
     too broadly.
    We further note that in this case, it was not merely the title
    which indicated that Hill’s filing should be reviewed as a
    motion for new trial. The motion contained various references
    to the new trial statutes and various allegations which indicated
    that Hill was seeking a new trial based on newly discovered
    evidence pursuant to § 29-2101(5). Therefore, the substance
    of the motion supported the title “Motion for New Trial” and
    specified the relevant statutory authority for such a motion.
    Although the motion also included allegations that might have
    been better suited to a motion for postconviction relief, the
    district court was not obligated to read such allegations to con-
    tradict Hill’s characterization of the type of motion he wished
    to file or the authority for the relief he sought.
    Although we conclude that the district court properly treated
    Hill’s motion as a motion for new trial rather than as a
    motion for postconviction relief, we note the following: First,
    a motion for postconviction relief is required to be verified,
    see § 29-3001(1), and Hill’s motion is not verified and there-
    fore would properly have been dismissed for that reason.
    Second, to the extent Hill contends that his motion contains
    both claims appropriate for a motion for new trial and claims
    appropriate for a motion for postconviction relief, we note
    that § 29-3003 provides that the postconviction remedy “is
    not intended to be concurrent with any other remedy exist-
    ing in the courts of this state” and that “[a]ny proceeding
    filed under the provisions of sections 29-3001 to 29-3004
    which states facts which if true would constitute grounds
    for relief under another remedy shall be dismissed without
    prejudice.” See, also, State v. Harris, 
    292 Neb. 186
    , 191, 
    871 N.W.2d 762
    , 766 (2015) (“postconviction remedy is clearly
    a cumulative remedy that may not be pursued concurrently
    with any other remedy existing under state law, including
    the remedies sought in a motion for new trial”). Thus, Hill’s
    - 519 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    postconviction claims, if any, were not subject to consideration
    in this action.
    We conclude that the district court did not err when it treated
    Hill’s motion as a motion for new trial based on newly discov-
    ered evidence rather than treating it as a motion for postconvic-
    tion relief. We reject this assignment of error, and we turn to
    Hill’s assignments of error regarding the district court’s dispo-
    sition of the motion for new trial.
    Hill Failed to Include Required Supporting
    Documents With Motion for New Trial and
    Therefore Dismissal of Motion Without
    Evidentiary Hearing Was Warranted.
    Hill claims that the district court erred when it dismissed
    his motion for new trial without an evidentiary hearing and,
    further, that the court made procedural errors in the manner
    by which it reached this conclusion. Hill specifically asserts
    that the court erred when it ordered the State to respond to his
    motion and later when it used the State’s response as the basis
    for its order dismissing the motion. On appeal from an order
    dismissing a motion for new trial without an evidentiary hear-
    ing pursuant to § 29-2102(2), we apply a de novo standard of
    review to such dismissal. See State v. Cross, 
    297 Neb. 154
    ,
    
    900 N.W.2d 1
     (2017). If our de novo review indicates that
    the motion was properly dismissed, an error in the procedure
    by which the district court reached its decision will not have
    prejudiced Hill and would not require reversal of the dis-
    missal. Therefore, we conduct our de novo review of the dis-
    missal before addressing Hill’s claims related to the procedure
    employed by the district court.
    As we discussed above, Hill appears to concede that most of
    the allegations in his motion are more appropriately addressed
    in a motion for postconviction relief than in a motion for
    new trial based on newly discovered evidence. However, Hill
    asserts on appeal that several allegations in his motion set forth
    grounds for new trial based on newly discovered evidence and
    urges us to consider them on that basis.
    - 520 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    [2] Section 29-2101 provides several grounds for a new trial,
    and specifically, subsection (5) provides that a new trial may be
    granted based on “newly discovered evidence material for the
    defendant which he or she could not with reasonable diligence
    have discovered and produced at the trial.” Procedural require-
    ments for motions for new trial authorized by § 29-2101 are set
    forth in §§ 29-2102 and 29-2103. Section 29-2103(2) provides
    that a “motion for a new trial shall state the grounds under
    section 29-2101 which are the basis for the motion and shall
    be supported by evidence as provided in section 29-2102.”
    Section 29-2102(1) in turn provides in part that the “ground set
    forth in subdivision (5) of section 29-2101 shall be supported
    by evidence of the truth of the ground in the form of affidavits,
    depositions, or oral testimony.” Reading these statutes together,
    we have stated that § 29-2102 “sets out what evidence must
    accompany a motion for new trial.” State v. Cross, 
    297 Neb. at 158
    , 900 N.W.2d at 4.
    Section 29-2102(2) sets forth the circumstances under which
    a court must grant a hearing on a motion for new trial, but it
    also provides that “[i]f the motion for new trial and supporting
    documents fail to set forth sufficient facts, the court may, on its
    own motion, dismiss the motion without a hearing.” (Emphasis
    supplied.) With regard to a motion for new trial pursuant to
    § 29-2101(5), the motion and supporting documents must set
    forth sufficient facts to establish that there is “newly discov-
    ered evidence material for the defendant which he or she could
    not with reasonable diligence have discovered and produced at
    the trial.”
    Therefore, in this case, dismissal without an evidentiary
    hearing would be appropriate if Hill’s motion and support-
    ing documents did not set forth sufficient facts to establish
    that there was newly discovered evidence, that such evidence
    was material to Hill’s defense, and that Hill could not with
    reasonable diligence have discovered and produced the evi-
    dence at his trial. Reviewing the allegations in Hill’s motion
    de novo, in particular the allegations that Hill argues on
    - 521 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    appeal would support a new trial, we determine that Hill did
    not file a motion and supporting documents that set forth suf-
    ficient facts.
    We have reviewed Hill’s allegations and determine that each
    of Hill’s claims of grounds for new trial set forth in the motion
    fails in at least one of these respects—that is, to the extent Hill
    alleged sufficient facts to show that the claim involved newly
    discovered evidence, he did not adequately allege facts suf-
    ficient to show that such evidence was material to his defense
    or to show that he could not with reasonable diligence have
    discovered and produced the evidence at his trial.
    However, our de novo review indicates a more basic reason
    that dismissal without an evidentiary hearing was appropri-
    ate in this case. As noted above, supporting documents of the
    sort set forth in § 29-2102 must accompany a motion for new
    trial. See State v. Cross, 
    297 Neb. 154
    , 
    900 N.W.2d 1
     (2017).
    Hill filed a 58-page motion with 60 pages of attachments.
    The attachments included, inter alia, letters from counsel and
    police reports. The attachments to the motion did not include
    “evidence of the truth of the ground in the form of affidavits,
    depositions, or oral testimony” as required by § 29-2102(1)
    to support a motion for new trial based on § 29-2101(5). The
    requirement for evidence of the truth of the asserted grounds is
    not trivial; it is designed, inter alia, to demonstrate the strength
    of the claim, which in turn determines entitlement to a hearing.
    Thus, regardless of whether the allegations in the motion itself
    set forth a narrative to establish grounds for a new trial based
    on newly discovered evidence, it is clear that upon filing, Hill
    failed to accompany the motion with the type of evidence
    required by § 29-2102(1) to support the motion. On this basis
    alone, dismissal of Hill’s motion without an evidentiary hear-
    ing was appropriate.
    We conclude that dismissal of Hill’s motion for new trial
    based on newly discovered evidence was appropriate under
    § 29-2102(2), because he failed to include required support-
    ing documents in the form of affidavits, depositions, or oral
    - 522 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    testimony setting forth facts to establish the grounds alleged
    in his motion. We therefore reject Hill’s claim that the district
    court erred when it dismissed his motion without an eviden-
    tiary hearing.
    Because De Novo Review Indicates That Motion Was
    Properly Dismissed, Any Error in the Procedure
    by Which District Court Decided to Dismiss
    Motion Did Not Prejudice Hill.
    Because we conclude, based on our de novo review of the
    motion for new trial, that dismissal of Hill’s motion without an
    evidentiary hearing was proper without regard to the district
    court’s process, any error in the procedure by which the dis-
    trict court reached its decision to dismiss the motion did not
    prejudice Hill. We therefore need not decide Hill’s claims that
    the district court erred when it ordered the State to respond
    or when it based its order of dismissal on the language of the
    State’s response. We do, however, take this opportunity to
    comment concerning aspects of the district court’s disposition
    of Hill’s motion.
    Hill claims that the district court erred when it ordered the
    State to respond to his motion before the court had determined
    whether a hearing was required or whether the motion should
    be dismissed without an evidentiary hearing. Hill asserts that
    the statutes require notice to and involvement of the State
    only after the court has determined that an evidentiary hear-
    ing is required. The district court overruled Hill’s objection to
    soliciting the State’s views, reasoning that the statutes did not
    prohibit it from requesting a response and that it was doing so
    based on its inherent power.
    As an additional basis for objecting to the process, Hill
    maintains that the district court “abrogat[ed]” its decisionmak-
    ing authority to the State. In this regard, he observes that the
    court’s order dismissing his motion almost entirely repeated
    the State’s response. He asserts that the court made no find-
    ings of fact and that it merely “changed three words” from
    the State’s response, changed the heading, and added a final
    - 523 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    paragraph for what he asserts was a total of “18 words added
    or changed.” Brief for appellant at 25, 26. Hill correctly notes
    that the court’s order made only minimal changes to the State’s
    response and that the court “took a little over a year” to rule on
    the motion. Id. at 25. In its brief on appeal, the State concedes
    that “[t]here can be no dispute that the district court’s order
    is cribbed almost directly from the [S]tate’s response,” brief
    for appellee at 7, but the State asserts that there is no author-
    ity to the effect that a court must make findings of fact or
    conclusions of law with respect to a motion for new trial and
    that, in any event, the court’s decision to dismiss the motion
    was correct.
    Given our disposition of the motion, we need not resolve the
    process-related claims of the parties, although we note in pass-
    ing that it is not inappropriate for a court to track the language
    of a party’s submission.
    We further choose to comment on Hill’s argument to the
    extent that he complains it took the court over 1 year to rule
    on the motion with an order that basically repeated the State’s
    response, and we take this opportunity to emphasize that this
    court has adopted case progression standards to govern the
    timely disposition of cases in the district and county courts.
    We note in particular Neb. Ct. R. § 6-101 (rev. 2013), which
    sets time standards for disposition of certain categories of pro-
    ceedings. Of relevance to this case, § 6-101 provides that for
    “Post Judgment Motions—Modification & Post Convictions,”
    50 percent of such motions should be disposed in 180 days
    and 95 percent should be disposed in 1 year. In the present
    case, Hill filed his motion on January 16, 2019; the court
    ordered the State on February 18 to respond; and the State
    filed its response on May 21. Nearly 11⁄2 years after Hill filed
    his motion and almost 1 year after the State filed its response,
    the court dismissed Hill’s motion on May 14, 2020, without an
    evidentiary hearing in an order which almost word for word
    tracked the response which the court had available to it for
    1 year.
    - 524 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    Hill’s pro se motion was admittedly lengthy and contained
    numerous attachments. However, from our de novo review, it
    was readily apparent that, whatever the merit of the narrative
    in the allegations in the motion, Hill had not accompanied the
    motion with the supporting evidence required by § 29-2102(2).
    We think that the relatively straightforward path for disposi-
    tion of this motion indicates that, under our case progression
    standards, this motion should have been among the 50 percent
    of motions disposed in 180 days rather than the 5 percent dis-
    posed in over 1 year.
    CONCLUSION
    We conclude that the district court did not err when it con-
    sidered Hill’s motion as a motion for new trial rather than
    considering it as a motion for postconviction relief. In our de
    novo review, we conclude that Hill’s motion was properly dis-
    missed pursuant to § 29-2102(2). We therefore affirm the dis-
    trict court’s order which dismissed Hill’s motion for new trial
    without an evidentiary hearing.
    Affirmed.
    Freudenberg, J., not participating.
    Stacy, J., concurring.
    I agree with the majority’s holding, but write separately to
    comment on the procedure followed by the district court. In
    my opinion, it is neither uncommon nor improper for a district
    court, as part of its preliminary review of a motion for new
    trial under § 29-2102, to ask the State to file a written response
    before deciding whether to grant or deny an evidentiary hear-
    ing on the motion.
    According to Hill, this procedure amounts to reversible error
    because it is not expressly authorized in the statutes govern-
    ing motions for new trial. The majority declines to reach the
    procedural issue, reasoning that Hill’s motion was properly
    dismissed without a hearing, regardless of the procedure fol-
    lowed. But since the procedural issue is squarely before us, I
    - 525 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    see no reason to leave judges and litigants wondering whether,
    in a later case, we might find it to be an abuse of discretion.
    Our cases have long recognized that a district court, as
    part of its preliminary review of a postconviction motion, has
    discretion to adopt reasonable procedures to assist the court
    in determining whether an evidentiary hearing is required. 1
    Historically, courts have employed a variety of different pro-
    cedures, and so long as the procedure was not contrary to the
    postconviction statutory scheme, we have not found it to be an
    abuse of discretion. 2 And we have specifically held that it is
    not an abuse of discretion to direct the State to file a written
    response before deciding whether to grant or deny an eviden-
    tiary hearing on the motion. 3
    Similar to the postconviction statutes, the statutes govern-
    ing motions for new trial require the trial court to conduct a
    preliminary review of the motion and determine whether to
    grant a hearing on the motion or dismiss it without a hear-
    ing. 4 In my opinion, we should acknowledge, as we have in
    the postconviction context, that trial courts have discretion to
    adopt reasonable procedures, not inconsistent with the statu-
    tory scheme, to assist in determining whether the motion for
    new trial and supporting documents “set forth facts which,
    1
    See, e.g., State v. Torres, 
    300 Neb. 694
    , 
    915 N.W.2d 596
     (2018); State v.
    Glover, 
    276 Neb. 622
    , 
    756 N.W.2d 157
     (2008); State v. McLeod, 
    274 Neb. 566
    , 
    741 N.W.2d 664
     (2007); State v. Dean, 
    264 Neb. 42
    , 
    645 N.W.2d 528
    (2002); State v. Flye, 
    201 Neb. 115
    , 
    266 N.W.2d 237
     (1978).
    2
    See, e.g., McLeod, 
    supra note 1
     (holding court did not abuse discretion
    in directing State to file written response to postconviction motion before
    ruling on whether to grant evidentiary hearing); Dean, 
    supra note 1
    (holding court did not abuse discretion in holding hearing to receive
    existing record and consider State’s motion to dismiss before ruling on
    whether to grant evidentiary hearing). Compare Glover, 
    supra note 1
    (finding abuse of discretion when court received and considered new
    evidence before ruling on whether to grant evidentiary hearing).
    3
    See, McLeod, 
    supra note 1
    ; Flye, 
    supra note 1
    .
    4
    See 
    Neb. Rev. Stat. § 29-2102
    (2) (Reissue 2016).
    - 526 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. HILL
    Cite as 
    308 Neb. 511
    if true, would materially affect the substantial rights of the
    defendant” 5 and entitle the movant to a hearing.
    Here, a few weeks after Hill filed his 118-page pro se
    motion, the district court entered an order directing the State
    to file a written response to the motion within 90 days. The
    order explained that a decision on whether to grant a hear-
    ing on Hill’s motion, and whether to appoint counsel for Hill,
    would be deferred pending the State’s response. This proce-
    dure is not expressly outlined in the new trial statutes, but it
    is not contrary to the statutory scheme and assists the court in
    conducting the required preliminary review. I see no abuse of
    discretion in the procedure followed by the district court in
    this case.
    Nor do I see error in how the court prepared its order of
    dismissal. Hill complains that the court’s order was only four
    pages long and generally tracked with the State’s written
    response, which summarized Hill’s claims rather than address-
    ing each of the more than 100 paragraphs in his motion for new
    trial. But neither the length of a court’s order nor the original-
    ity of its language is a reliable measure of the quality of judi-
    cial decisionmaking.
    The majority correctly observes that it is not inappropriate
    for a court, when preparing an order, to track the language of
    a party’s submission. But the majority repeats Hill’s complaint
    in this regard often enough that readers might suspect there is
    something to it. There is not. Judges need not reinvent the legal
    wheel when issuing a decision, and it is neither remarkable nor
    improper for a court to issue an order that repeats a party’s
    correct analysis of the law or recitation of the facts. I firmly
    reject Hill’s contention that the language of the order issued in
    this case casts doubt on the court’s impartiality or suggests the
    judge did not conduct an independent and thorough review of
    Hill’s lengthy motion and supporting documents before issuing
    its decision.
    5
    
    Id.