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State v. Epp

Supreme Court of Nebraska

April 20, 2018

State of Nebraska, appellee,
v.
William A. Epp, appellant.

         1. 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.

         2. Postconviction: Right to Counsel: Appeal and Error. Failure to appoint counsel in postconviction proceedings is not error in the absence of an abuse of discretion.

         3. 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 characterized.

         4. 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.

         5. 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.

          Appeal from the District Court for Gage County: Vicky L. Johnson, Judge. Affirmed.

          William A. Epp, pro se.

          Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.

          [299 Neb. 704] Heavican, C.J., Miller-Lerman, and Stacy, JJ., and Luther and O'Gorman, District Judges.

          HEAVICAN, C.J.

         NATURE OF CASE

         This 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 affirm.

         BACKGROUND

         In 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.

         Epp appealed his convictions and sentences, which were affirmed by this court.[1] As pertinent here, we found in State v. Epp[2] 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.

         Epp 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 ...


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