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State v. Koch

Supreme Court of Nebraska

September 27, 2019

State of Nebraska, appellee and cross-appellant,
v.
Edward D. Koch, appellant and cross-appellee.

         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. Appeal and Error. When reviewing a question of law, an appellate court resolves the question independently of the lower court's conclusion.

         3. Postconviction: Final Orders: Appeal and Error. Within a postconviction proceeding, an order granting an evidentiary hearing on some issues and denying a hearing on others is a final, appealable order as to the claims denied without a hearing. It is appealable because an order overruling a motion for postconviction relief as to a claim is a "final judgment" as to such claim under Neb. Rev. Stat. § 29-3002 (Reissue 2016).

         4. Postconviction: Pleadings: Time. Neb. Rev. Stat. § 29-3001(4) (Reissue 2016) of the Nebraska Postconviction Act contains a 1-year time limit for filing a verified motion for postconviction relief, which runs from one of four triggering events or August 27, 2011, whichever is later.

         5. Postconviction: Limitations of Actions: Words and Phrases: Appeal and Error. The issuance of a mandate by a Nebraska appellate court is a definitive determination of the "conclusion of a direct appeal, " and the "date the judgment of conviction became final, " for purposes of Neb. Rev. Stat. § 29-3001 (4)(a) (Reissue 2016).

          Appeal from the District Court for Cass County: Michael A. Smith, Judge.

          Cameron Kroeger, of Berry Law Firm, for appellant.

          Douglas J. Peterson, Attorney General, Erin E. Tangeman, and Maureen Larsen, Senior Certified Law Student, for appellee.

          [304 Neb. 134] Miller-Lerman, Cassel, Stacy, and Papik, JJ., and Bishop. Judge.

          STACY, J.

         Edward D. Koch appeals from an order of the Cass County District Court dismissing his motion for postconviction relief after an evidentiary hearing. The State cross-appeals, arguing the district court erred in granting an evidentiary hearing on a postconviction claim that was time barred. We affirm the dismissal of the postconviction motion.

         I. BACKGROUND

         In 2014, Koch was charged with two counts of manslaughter in violation of Neb. Rev. Stat. § 28-305 (Reissue 2008). He eventually pled no contest to both counts as charged, and he was sentenced to consecutive terms of 15 to 20 years in prison for each conviction.

         Koch filed a direct appeal, represented by the same attorney. The Nebraska Court of Appeals affirmed Koch's conviction and sentence in a memorandum opinion filed May 24, 2016.[1] The Court of Appeals issued its mandate to the Cass County District Court on June 28.

         The record shows the mandate was filed by the clerk of the district court on July 21, 2016, and a few days later, on July 25, the district court entered judgment in accordance with the mandate. An amended judgment on the mandate was entered July 28 to correct a typographical error.

         On July 19, 2017, Koch filed a verified motion for postconviction relief. The motion, which was prepared and filed by newly retained counsel, alleged that Koch's trial counsel had provided ineffective assistance in four respects. The State moved to deny postconviction relief without an evidentiary hearing, arguing, among other things, the motion was time barred. In response, Koch argued that his motion was timely [304 Neb. 135] under Neb. Rev. Stat. § 29-3001(4)(a) (Reissue 2016), because it was filed within 1 year of the date on which the Court of Appeals' mandate had been filed in the district court.

         In an order entered November 2, 2017, the district court agreed with Koch on the issue of timeliness. It noted that under § 29-3001(4)(a), a postconviction motion must be filed within 1 year of '"the conclusion of a direct appeal.'" The district court reasoned "the issuance of an appellate opinion is not necessarily the final step in the appellate process, and that issuance and receipt of the mandate is also a part of that process." Applying this reasoning, the district court found Koch's direct appeal concluded on July 21, 2016, the date on which the Court of Appeals' mandate was filed in the district court, and thus concluded Koch's postconviction motion was timely filed within 1 year of that date.

         The district court then found Koch was entitled to an evidentiary hearing on one of his four claims of ineffective assistance of counsel. It found the other three claims were either procedurally barred or insufficiently pled, and dismissed ...


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