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.
Postconviction: Right to Counsel: Appeal and
Error. Failure to appoint counsel in postconviction
proceedings is not error in the absence of an abuse of
Constitutional Law: Rules of the Supreme Court:
Courts: Statutes. Strict compliance with Neb. Ct. R.
App. P. § 2-109(E) (rev. 2014) is necessary whenever a
litigant challenges the constitutionality of a statute,
regardless of how that constitutional challenge may be
Postconviction: Proof. 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.
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, 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.
from the District Court for Gage County: Vicky L. Johnson,
William A. Epp, pro se.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
Neb. 704] Heavican, C.J., Miller-Lerman, and Stacy, JJ., and
Luther and O'Gorman, District Judges.
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
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
conviction for robbery and his conviction for possession of a
deadly weapon by a felon. The court ordered the sentences to
be served consecutively.
appealed his convictions and sentences, which were affirmed
by this court. As pertinent here, we found in State
v. Epp that we did not need to address Epp's
argument that Neb. Rev. Stat. § 25-1233 (Reissue 2016),
which limits 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 [299 Neb.
705] criminal enhancement. Epp's sentences became final
on October 27, 2009.
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 possession of a deadly weapon by a felon, which
conviction was allegedly inconsistent with the jury's