Postconviction: Constitutional Law: Appeal and
Error. In appeals from postconviction proceedings,
an appellate court reviews de novo a determination that the
defendant failed to allege sufficient facts to demonstrate a
violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is
entitled to no relief. The lower court's findings of fact
will be upheld unless such findings are clearly erroneous.
Limitations of Actions. If the facts of a
case are undisputed, the issue as to when the statute of
limitations begin to run is a question of law.
Statutes: Appeal and Error. Statutory
language is to be given its plain and ordinary meaning, and
an appellate court will not resort to interpretation to
ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
Postconviction: Time: Appeal and Error. Once
the timeliness of a postconviction motion is challenged and a
hearing is held on the issue, an inmate must raise all
applicable timeliness arguments to the district court to
preserve them for appellate review.
Appeal and Error. It is well established
that an appellate court will not consider questions not
presented to the district court.
Limitations of Actions. The doctrine of
equitable tolling permits a court to excuse a party's
failure to comply with the statute of limitations where,
because of disability, irremediable lack of information, or
other circumstances beyond his or her control, the plaintiff
cannot be expected to file suit on time.
Equitable tolling requires no fault on the part of the
defendant. It does, however, require due diligence on the
part of the claimant.
from the District Court for Douglas County: J. Michael
Coffey, Judge. Affirmed.
Neb. 392] Peder Bartling, of Bartling Law Offices, PC,
L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Daugherty, District Judge.
Conn filed a motion seeking postconviction relief. The State
responded with a motion to dismiss, arguing the motion was
filed outside the 1-year limitations period under Neb. Rev.
Stat. § 29-3001(4) (Reissue 2016). After conducting a
hearing, the district court found the motion was time barred
and granted the State's motion to dismiss. Conn filed
this timely appeal.
November 2011, as part of a plea agreement involving four
cases, Conn pled no contest to one count of attempted assault
on an officer and admitted he was a habitual criminal. On
January 27, 2012, he was sentenced to 20 to 35 years'
imprisonment, with the sentence to be served concurrently
with identical sentences in the other three cases. Conn was
represented by counsel at the time of the plea and
sentencing. No direct appeal was filed.
28, 2013, Conn filed the instant motion for post-conviction
relief. The motion, summarized, alleged trial counsel was
ineffective for failing to file a direct appeal after Conn
asked that he do so. The same day, Conn moved for appointment
of postconviction counsel.
February 4, 2013, the district court appointed counsel for
Conn. Three days later, the State moved to dismiss Conn's
postconviction motion, arguing it was filed outside the
1-year limitations period under § 29-3001(4). After a
delay of several years that is not fully explained by the
record, the court held a hearing on the State's motion.
After the hearing, the district [300 Neb. 393] court granted
the State's motion to dismiss, finding Conn's
postconviction motion was filed out of time. Conn filed this
appeal, which we moved to our docket on our own
assigns that the district court erred in dismissing his
postconviction motion as time barred pursuant to §
appeals from postconviction proceedings, an appellate court
reviews de novo a determination that the defendant failed to
allege sufficient facts to demonstrate a violation of his or
her constitutional rights or that the record and files
affirmatively show that the defendant is entitled to no
relief The lower court's findings of fact
will be upheld unless such findings are clearly
facts of a case are undisputed, the issue as to when the
statute of limitations begin to run is a question of
to § 29-3001(4), a 1-year limitations period applies to
motions for postconviction relief. That period runs from the
(a) The date the judgment of conviction became final by the
conclusion of a direct appeal or the expiration of the time