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State v. Wetherell

Supreme Court of Nebraska

October 24, 2014

STATE OF NEBRASKA, APPELLEE,
v.
NICCOLE A. WETHERELL, APPELLANT

Page 360

[Copyrighted Material Omitted]

Page 361

Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge.

Niccole A. Wetherell, Pro se.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 362

[289 Neb. 313] Miller-Lerman, J.

NATURE OF CASE

In 1999, Niccole A. Wetherell pled no contest to first degree murder, a Class IA felony, and a three-judge panel imposed a mandatory sentence of life imprisonment. Wetherell was 18 years old at the time of the offense. Her conviction and sentence were affirmed by this court on direct appeal. The denial of her first postconviction motion was later affirmed. Wetherell filed a second motion for postconviction relief pro se, and this is the motion which gives rise to this appeal. Nebraska Advance Sheets

[289 Neb. 314] In her motion, Wetherell claimed that because she was a " minor" as defined under certain Nebraska law at the time of her offense, her mandatory life sentence without the possibility of parole is cruel and unusual and, therefore, unconstitutional under Miller v. Alabama, U.S., 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ( Miller ). Miller generally held that mandatory life sentences without the possibility of parole for persons under 18 at the time they committed their offense were unconstitutional. For relief, Wetherell sought a resentencing.

The district court for Sarpy County determined that because Wetherell was not under the age of 18 at the time of her offense, Miller does not apply to her case. The court denied her motion without conducting an evidentiary hearing and without appointing counsel. Wetherell appeals.

Page 363

Because we determine that Wetherell has failed to allege any facts which, if proved, constitute an infringement of her constitutional rights and the records and files show she is entitled to no relief, we affirm.

STATEMENT OF FACTS

On March 24, 1999, Wetherell pled no contest to first degree murder, a Class IA felony. The offense for which Wetherell was charged occurred in September 1998. Wetherell was born in July 1980. She was 18 years old when the offense occurred. A three-judge panel rejected the death penalty and imposed a mandatory sentence of life imprisonment.

Wetherell's conviction and sentence were affirmed by this court on direct appeal. See State v. Wetherell, 259 Neb. 341, 609 N.W.2d 672 (2000). The sole error Wetherell assigned in her direct appeal was that the district court erred when it did not permit her to withdraw her plea prior to sentencing.

On August 1, 2007, Wetherell filed her first motion for postconviction relief. The district court denied the motion without an evidentiary hearing, and the denial was affirmed by this court on January 31, 2008, in case No. S-07-939.

Wetherell later filed a second motion for postconviction relief pro se. This is the motion which gives rise to this appeal. In her second motion for postconviction relief, Wetherell [289 Neb. 315] alleged that she was 18 years old at the time of the offense but claimed that under Neb. Rev. Stat. § 43-2101 (Cum. Supp. 2012), she was still a " minor." Section 43-2101 states, inter alia, that " [a]ll persons under nineteen years of age are declared to be minors . . . ." Based on her " minor" status at the time of the offense, Wetherell contends that her mandatory life sentence is unconstitutional under Miller and that she is entitled to be resentenced under 2013 Neb. Laws, L.B. 44, which generally deals with sentencing juveniles convicted of Class IA felonies who were " under the age of eighteen years" when they committed the offense. See Neb. Rev. Stat. § 28-105.02 (Supp. 2013).

The district court denied Wetherell's second motion for postconviction relief without an evidentiary hearing and without appointing counsel. The district court noted that by their terms, both Miller and L.B. 44 apply to offenders who were under the age of 18 years at the time of the offense. Because it is undisputed that Wetherell was 18 years old at the time she committed the offense, the district court concluded that Miller and the relief afforded by L.B. 44 do not apply to her case. Therefore, the court determined that Wetherell failed to establish a basis for postconviction relief, and it denied her motion without an evidentiary hearing and without appointing counsel.

Wetherell appeals.

ASSIGNMENTS OF ERROR

Wetherell claims, restated, that the district court erred when it (1) denied her motion for postconviction relief, because under Miller, her life sentence was imposed in violation of the cruel and unusual punishment provisions of the Nebraska and U.S. Constitutions, and (2) failed to ...


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