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State v. Ware

Supreme Court of Nebraska

October 30, 2015

STATE OF NEBRASKA, APPELLEE,
v.
DAVID E. WARE, APPELLANT

Appeal from the District Court for Douglas County: THOMAS A. OTEPKA, Judge.

Thomas C. Riley, Douglas County Public Defender, and Natalie M. Andrews for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, MILLER-LERMAN, CASSEL, AND STACY, JJ.

OPINION

Page 638

Heavican, C.J.

INTRODUCTION

David E. Ware's motion for postconviction relief was denied without an evidentiary hearing. Ware appeals and argues he was [292 Neb. 25] entitled to an evidentiary hearing on his claims that his sentence violated the Eighth Amendment to the U.S. Constitution and that his trial counsel was ineffective. We affirm.

BACKGROUND

On April 13, 1984, Ware was convicted of first degree murder following a bench trial. Ware was subsequently sentenced to life imprisonment. This court affirmed his conviction and sentence.[1]

On August 16, 2012, Ware filed a motion for postconviction relief. In that motion, Ware alleged that (1) his mandatory life sentence was unconstitutional under Miller v. Alabama [2] because the sentencing court did not have the opportunity to consider any mitigating circumstances; (2) his trial counsel was ineffective (a) for failing to advise him of his right to testify in his own behalf and (b) for failing to adequately inform him of his right to a jury trial; and (3) he did not knowingly, intelligently, and voluntarily waive his right to have a presentence investigation conducted.

Originally, Ware's motion was stayed pending this court's decision in State v. Mantich.[3] But after this court issued its opinions in Mantich and State v. Castaneda,[4] Ware's motion proceeded and a hearing on the State's second motion to deny an evidentiary hearing was held. At this hearing, Ware sought to introduce into evidence the deposition of an adolescent neuropsychologist. That request was denied at the hearing, and Ware's motion seeking postconviction relief was denied on January 22, 2015.

In its order, the district court noted that Ware had no Miller claim, because he was 18 years of age at the time of the [292 Neb. 26] commission of the crime for which he was convicted. The court further addressed the claim that his counsel was ineffective for not informing him of his right to testify in his own behalf, and concluded that this allegation was not supported by the record. Finally, the ...


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