[Copyrighted Material Omitted]
Appeal from the District Court for Douglas County: J. PATRICK MULLEN, Judge.
Sentence vacated, and cause remanded for resentencing.
Adam J. Sipple, of Johnson & Mock, Oakland, for appellant.
Jon Bruning, Attorney General, and J. Kirk Brown, Lincoln, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.
1. Constitutional Law: Sentences. Whether a sentence violates the Eighth Amendment's cruel and unusual punishment clause presents a question of law.
2. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.
[287 Neb. 321] 3. Constitutional Law: Criminal Law: Statutes: Convictions: Sentences: Time. When a decision of the U.S. Supreme Court results in a " new rule," that rule applies to all criminal cases still pending on direct review. As to convictions that are already final, however, the rule applies only in limited circumstances. New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish.
4. Constitutional Law: Criminal Law: Time. New rules of procedure generally do not apply retroactively. The only exception is those rules that are " watershed rules of criminal procedure" implicating the fundamental fairness and accuracy of the criminal proceedings.
5. Constitutional Law: Criminal Law: Minors: Sentences: Time: Appeal and Error. The holding of the U.S. Supreme Court in Miller v. Alabama,
__ U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), that the Eighth Amendment forbids a sentencing scheme which mandates life in prison without the possibility of parole for juvenile offenders, is a new substantive rule of constitutional law which applies retroactively to criminal cases on collateral review.
In 1994, Douglas M. Mantich was convicted of first degree murder and use of a
firearm to commit a felony. He was sentenced to life imprisonment for the murder conviction and 5 to 20 years' imprisonment for the firearm conviction. The murder was committed when Mantich was 16 years old. On direct appeal, we affirmed his convictions and life imprisonment sentence and vacated and remanded his firearm sentence for resentencing.
[287 Neb. 322] In 2010, Mantich filed an amended postconviction motion alleging his life imprisonment sentence violated the Eighth Amendment's prohibition on cruel and unusual punishment because it was (1) categorically prohibited under the U.S. Supreme Court's holding in Graham v. Florida  and (2) grossly disproportionate to the offense for which he was convicted. Mantich also alleged that the attorney who represented him at his trial and on direct appeal was ineffective in not asserting these Eighth Amendment claims. The district court denied the postconviction motion without conducting an evidentiary hearing, and Mantich appealed from that order.
We heard oral arguments in the appeal on October 7, 2011. On July 11, 2012, we set the case for reargument and ordered supplemental briefing after the U.S. Supreme Court held in Miller v. Alabama  that the Eighth Amendment forbids a state sentencing scheme that mandates life in prison without the possibility of parole for a juvenile offender convicted of homicide. We now hold that Mantich's life imprisonment sentence is unconstitutional under Miller.
On December 5, 1993, a gathering was held to mourn the death of a " Lomas" gang member. Several members of the gang attended the party, including Mantich, Gary Brunzo, Daniel Eona, Juan Carrera, and Angel Huerta. At the gathering, Mantich consumed between 5 and 10 beers and smoked marijuana in a 2 1/ 2-hour period.
Sometime after 1 a.m., Carrera decided that he wanted to steal a car and commit a driveby shooting of a member of a rival gang. While holding a gun, Eona responded that he also wanted to steal a car and talked about " jackin' somebody" and " putting a gun to their head." Brunzo and Eona then walked toward Dodge Street to steal a vehicle. They returned about 20 minutes later in a stolen red minivan, and Carrera and Huerta [287 Neb. 323] got in. Over his girlfriend's objection and attempt to physically restrain him, Mantich also got into the van.
The van had no rear seats. Eona was in the driver's seat, and Brunzo was in the front passenger seat. Carrera sat behind the driver's seat; Huerta sat on the passenger side, close to the sliding side door; and Mantich sat behind Carrera and Huerta, toward the back of the van. After a short time, Mantich realized that a man, later identified as Henry Thompson, was in the van. Thompson was kneeling between the driver's seat and the front passenger seat with his hands over his head and his head facing the front of the van.
The gang members began chanting " Cuz" and " Blood." Mantich thought the purpose was to make Thompson believe they were affiliated with a different gang. Eona demanded Thompson's money, and Brunzo told Thompson they were going to
shoot him. Mantich saw Brunzo and Eona poke Thompson in the head with their guns. Eventually, a shot was fired and Thompson was killed. Thompson's body was pulled out of the van and left on 13th Street.
The group then drove to Carrera's house so he could retrieve his gun. After this, they drove by a home and fired several shots at it from the vehicle. Later, they sank the van in the Missouri River and walked back to 13th Street. From there, Mantich and Huerta took all the guns and went to Huerta's house to hide them. Brunzo, Eona, and Carrera walked toward the area of Thompson's body.
After hiding the guns with Huerta, Mantich walked to Brian Dilly's house. While still intoxicated, Mantich told Dilly and Dilly's brothers about the events of the night. Mantich claimed he had pulled the trigger and killed Thompson. When the 6 o'clock news featured a story on the homicide, Mantich said, " ‘ I told you so,’ " and " ‘ I told you I did it.’ " About an hour after the newscast, Mantich told Dilly that Brunzo was actually the person who shot and killed Thompson. The police later learned about Mantich's conversations with Dilly, and arrest warrants were issued for Mantich, Brunzo, Eona, and Carrera. Mantich was arrested on January 4, 1994.
Mantich agreed to talk with Omaha police about what happened and initially claimed that Brunzo shot Thompson. The [287 Neb. 324]police told Mantich that statements were being obtained from Brunzo, Eona, and Carrera and that Mantich's statement was inconsistent with the information the police had acquired. The police also told Mantich that Dilly said Mantich confessed to shooting Thompson. Mantich admitted telling Dilly he shot Thompson, but explained that it was a lie and that he was only trying to look like " a bad ass." Mantich claimed that he had not shot anyone and that Brunzo was the shooter.
The police then told Mantich they knew what happened and assured Mantich that his family and girlfriend " would not abandon him" if he told the truth. At this point, Mantich admitted that he had pulled the trigger. Mantich said, " ‘ I'm sorry it happened. I wished it wouldn't have happened.’ " Mantich further stated, " ‘ They handed me the gun and said shoot him, so I did it.’ " Mantich again confessed during a taped statement to shooting Thompson.
Mantich testified in his own behalf at trial. He acknowledged his statements to Dilly and the police that he had shot Thompson, but told the jury that he had not shot Thompson. On September 26, 1994, the jury returned a verdict of guilty on one charge of first degree murder and one charge of use of a firearm to commit a felony.
1. SENTENCING AND DIRECT APPEAL
In October 1994, the district court sentenced Mantich to a term of life imprisonment on the first degree murder conviction and to 5 to 20 years' imprisonment on the conviction of use of a firearm to commit a felony. Mantich's life imprisonment sentence carries no possibility of release on parole unless the Board of Pardons commutes his sentence to a term of years.  The court ordered the sentences to run consecutively.
On direct appeal, Mantich assigned various errors, including that the evidence was insufficient to support his convictions. He did not assert an Eighth Amendment claim with respect to his life imprisonment sentence. We found no merit in any of his assignments of error, but concluded that
there was plain [287 Neb. 325] error resulting from a failure to give credit for time served on his sentence for use of a firearm to commit a felony. We therefore affirmed his convictions but vacated the firearm sentence and remanded the cause with directions to resentence Mantich, giving him credit for time served.
2. POSTCONVICTION PROCEEDINGS
Mantich filed a pro se motion for postconviction relief on September 25, 2006. The court dismissed the first five grounds of the motion, reasoning they were the same grounds Mantich raised on direct appeal. The court did not dismiss Mantich's claim of ineffective assistance of counsel and appointed counsel to represent Mantich with respect to that claim. That attorney filed the operative amended motion for postconviction relief on August 31, 2010.
The amended motion asserted Mantich's sentence of life imprisonment without parole violated the Eighth Amendment because it was (1) categorically prohibited under Graham v. Florida  and (2) disproportionate to the offense for which he was convicted. In Graham,  the U.S. Supreme Court held that " the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender." The amended motion also alleged the attorney who represented Mantich during trial and on direct appeal was ineffective for not objecting to the life imprisonment without parole sentence on Eighth Amendment grounds.
The State moved to dismiss Mantich's amended motion, asserting Graham did not apply because Mantich was convicted of a homicide offense. The State further contended that Mantich's counsel was not ineffective.
On March 17, 2011, the district court denied Mantich's amended motion without an evidentiary hearing. The court concluded that Mantich's life imprisonment sentence was not categorically barred under Graham or any decision of this court. Mantich filed this timely appeal. While it was pending, [287 Neb. 326] the U.S. Supreme Court decided Miller v. Alabama.  Miller held that a sentence of mandatory life imprisonment without parole for a juvenile violated the Eighth Amendment's prohibition on cruel and unusual punishment. We ordered reargument and supplemental briefing on the effect of Miller on Mantich's postconviction motion.
II. ASSIGNMENTS OF ERROR
In the original appeal from the denial of postconviction relief, Mantich assigned, restated and summarized, that the district court erred in (1) failing to vacate his sentence pursuant to the holding of Graham, (2) failing to vacate his sentence as unconstitutionally disproportionate to the offense of felony murder, and (3) failing to hold an evidentiary hearing on the issues presented by his ineffective assistance of counsel and Eighth Amendment claims. After we ordered supplemental briefing in light of Miller, Mantich reasserted all of the assignments of error raised in his initial brief. He also assigned, restated and consolidated, that his life imprisonment sentence is a violation of the 8th and 14th Amendments based on the U.S. Supreme Court's decision in Miller.
III. STANDARD OF REVIEW
Whether a sentence violates the Eighth Amendment's cruel and unusual
punishment clause presents a question of law. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.
1. MILLER V. ALABAMA APPLIES TO MANTICH
In Miller v. Alabama,  the Court held that the " Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." [287 Neb. 327] The Court reached its conclusion by applying two lines of precedent. First, the Court recognized two previous juvenile cases, Graham v. Florida  and Roper v. Simmons.  Graham held that a juvenile could not be sentenced to life imprisonment without parole for a nonhomicide offense. Roper held that a juvenile could not be sentenced to death. Both thus announced categorical bans on sentencing practices as they apply to juveniles. The Court in Miller reasoned that Graham and Roper established that " children are constitutionally different from adults for purposes of sentencing."  Specifically, the Court in Miller noted that compared to adults, children lack maturity and have an underdeveloped sense of responsibility, are more vulnerable to outside influences and pressures, and have yet to fully develop their character. Because of these differences, the Court reasoned juveniles have " diminished culpability and greater prospects for reform." 
Second, the Miller Court recognized prior Court jurisprudence requiring individualized decisionmaking in capital punishment cases. It then applied this jurisprudence to the imposition of life imprisonment on juveniles by reasoning that a life imprisonment without parole sentence for a juvenile is tantamount to a death sentence for an adult. According to the Court, because the Eighth Amendment when applied to adults requires individualized sentencing prior to the imposition of a death sentence, the Eighth Amendment when applied to juveniles requires individualized sentencing prior to the imposition of a sentence of life imprisonment without parole.
[287 Neb. 328] The threshold question presented to us in this appeal is whether the holding in Miller applies to Mantich so that his sentence must be vacated and this cause remanded for a new sentencing hearing. We held in State v. Castaneda that life imprisonment sentences imposed on juveniles in Nebraska prior to Miller were ...