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.
Appeal and Error. When reviewing a question of law, an
appellate court resolves the question independently of the
lower court's conclusion.
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).
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.
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)
from the District Court for Cass County: Michael A. Smith,
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.
Neb. 134] Miller-Lerman, Cassel, Stacy, and Papik, JJ., and
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.
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.
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. The Court of Appeals issued its mandate to
the Cass County District Court on June 28.
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.
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.
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.
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