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State v. Conn

Supreme Court of Nebraska

June 29, 2018

State of Nebraska, Appellee,
v.
Coty J. Conn, Appellant.

         1. 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.

         2. 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.

         3. 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.

         4. 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.

         5. Appeal and Error. It is well established that an appellate court will not consider questions not presented to the district court.

         6. 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.

         7. ___. Equitable tolling requires no fault on the part of the defendant. It does, however, require due diligence on the part of the claimant.

          Appeal from the District Court for Douglas County: J. Michael Coffey, Judge. Affirmed.

         [300 Neb. 392] Peder Bartling, of Bartling Law Offices, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Daugherty, District Judge.

          STACY, J.

         Coty J. 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.

         FACTS

         In 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.

         On May 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.

         On 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 motion.[1]

         ASSIGNMENT OF ERROR

         Conn assigns that the district court erred in dismissing his postconviction motion as time barred pursuant to § 29-3001(4).

         STANDARD OF REVIEW

         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[2] The lower court's findings of fact will be upheld unless such findings are clearly erroneous.[3]

         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.[4]

         ANALYSIS

         Pursuant to § 29-3001(4), a 1-year limitations period applies to motions for postconviction relief. That period runs from the later of:

(a) The date the judgment of conviction became final by the conclusion of a direct appeal or the expiration of the time ...

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