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                                                  STATE v. SCHMIDT
                                                Cite as 24 Neb. App. 239




                                         State of Nebraska, appellee, v.
                                        Roger K. Schmidt, Sr., appellant.
                                                     ___ N.W.2d ___

                                          Filed August 9, 2016.    No. A-15-584.

                1.	 Postconviction: Evidence: Witnesses: Appeal and Error. In an evi-
                    dentiary hearing, as a bench trial provided by Neb. Rev. Stat. § 29-3001
                    et seq. (Reissue 2008 & Cum. Supp. 2014) for postconviction relief,
                    the trial judge, as the trier of fact, resolves conflicts in evidence and
                    questions of fact, including witness credibility and weight to be given a
                    witness’ testimony. In an appeal involving such a proceeding for post-
                    conviction relief, the trial court’s findings will be upheld unless such
                    findings are clearly erroneous.
                2.	 Postconviction: Proof: Appeal and Error. A defendant requesting
                    postconviction relief must establish the basis for such relief, and the
                    findings of the district court will not be disturbed unless they are
                    clearly erroneous.
                3.	 Postconviction: Appeal and Error. Whether a claim raised in a post-
                    conviction proceeding is procedurally barred is a question of law.
                4.	 Judgments: Appeal and Error. When reviewing questions of law,
                    an appellate court resolves the questions independently of the lower
                    court’s conclusion.
                5.	 Postconviction: Constitutional Law. The Nebraska Postconviction Act,
                    Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2014), is
                    available to a defendant to show that his or her conviction was obtained
                    in violation of his or her constitutional rights.
                6.	 Evidence: Words and Phrases. Generally, newly discovered evidence
                    is evidence material to the defense that could not with reasonable dili-
                    gence have been discovered and produced in the prior proceedings.
                7.	 Effectiveness of Counsel: Proof. The factual predicate for a claim
                    concerns whether the important objective facts could reasonably have
                    been discovered, not when the claimant should have discovered the legal
                    significance of those facts.
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                            STATE v. SCHMIDT
                          Cite as 24 Neb. App. 239

 8.	 Effectiveness of Counsel: Plea Bargains. As a general rule, defense
     counsel has the duty to communicate to the defendant all formal offers
     from the prosecution to accept a plea on terms and conditions that may
     be favorable to the defendant.
 9.	 Trial: Attorney and Client: Effectiveness of Counsel: Plea Bargains.
     A trial counsel’s failure to communicate a plea offer to a defendant is
     deficient performance as a matter of law.
10.	 Appeal and Error. An appellate court is not obligated to engage in an
     analysis that is not necessary to adjudicate the case and controversy
     before it.

  Appeal from the District Court for Jefferson County: Paul
W. Korslund, Judge. Affirmed.
   Lyle J. Koenig, of Koenig Law Firm, for appellant.
   Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
   Moore, Chief Judge, and Inbody and R iedmann, Judges.
  Moore, Chief Judge.
                      INTRODUCTION
  Roger K. Schmidt, Sr., appeals from an order of the district
court for Jefferson County denying his second motion for post-
conviction relief. We determine that Schmidt’s second motion
was barred by the limitation period set forth in the Nebraska
Postconviction Act, specifically Neb. Rev. Stat. § 29-3001(4)
(Cum. Supp. 2014), and therefore, we affirm the district court’s
order denying postconviction relief.
                       BACKGROUND
                  Conviction and Sentencing
   On March 14, 2007, Schmidt was convicted by jury before
the district court of Jefferson County on one count of first
degree sexual assault on a child in violation of Neb. Rev. Stat.
§ 28-319(1)(c) (Reissue 1995), a Class II felony, and four
counts of sexual assault of a child in violation of Neb. Rev.
Stat. § 28-320.01 (Cum. Supp. 2004), Class IIIA felonies. The
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                          STATE v. SCHMIDT
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jury acquitted Schmidt on one count of first degree sexual
assault on a child and one count of sexual assault of a child.
On May 18, Schmidt was sentenced to imprisonment for a
period of 18 to 25 years for the count of first degree sexual
assault and a period of 5 years for each of the four individual
counts of sexual assault, with all sentences to run consecu-
tively. Schmidt’s convictions and sentences were affirmed on
direct appeal. See State v. Schmidt, 16 Neb. App. 741, 750
N.W.2d 390 (2008). See, also, State v. Schmidt, 276 Neb.
723, 757 N.W.2d 291 (2008). Schmidt retained the same
counsel, Kelly S. Breen, for both the original trial and his
direct appeal.
             First Motion for Postconviction R elief
   On October 19, 2010, Schmidt, having retained new coun-
sel, filed his first motion for postconviction relief in the district
court, alleging in part ineffective assistance of trial counsel.
His counsel has remained the same from this first motion
through the present appeal. This motion, as supplemented,
claimed that Breen failed to investigate and prepare witnesses;
to mitigate potentially harmful statements; to adequately chal-
lenge various statements, testimony, and the competency of
witnesses; to assert available defenses; to make necessary
objections and a proper offer of proof; and to employ an
expert. This motion did not allege that Breen failed to com-
municate a formal plea offer.
   On October 28, 2011, the district court denied this motion
without an evidentiary hearing. This court affirmed the
denial on appeal on March 19, 2013. See State v. Schmidt,
case No. A-11-981, 2013 WL 1111520 (Neb. App. Mar. 19,
2013) (selected for posting to court Web site). The Nebraska
Supreme Court subsequently denied Schmidt’s petition for
further review.
          Second Motion for Postconviction R elief
  On March 13, 2014, Schmidt filed a second motion for
postconviction relief based upon an alleged newly recognized
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constitutional right and a new allegation of ineffective assist­
ance of counsel discovered during the pendency of the appeal
of the first motion. Specifically, Schmidt asserted that the U.S.
Supreme Court, for the first time in Lafler v. Cooper, ___ U.S.
___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), and Missouri
v. Frye, ___ U.S. ___, 132 S. Ct. 1399, 182 L. Ed. 2d 379
(2012) (both decided on March 21, 2012), identified defective
performance of counsel during plea negotiations as poten-
tial ineffective assistance of counsel in violation of the Sixth
Amendment to the Constitution.
   Schmidt claimed that such ineffective assistance of trial
counsel occurred in his case due to Breen’s alleged failure to
communicate a formal plea offer proffered by the prosecutor,
Linda Bauer, prior to the original trial. Specifically, Schmidt
alleged that on March 26, 2012, he discovered that the State
had offered a plea agreement to Breen, prior to the original
trial. The plea offer would have allowed Schmidt to plead
guilty to three counts of sexual contact, Class IIIA felonies,
carrying a maximum penalty of 15 years’ imprisonment and
a $30,000 fine during the period at issue, in exchange for all
other charges being dismissed. See Neb. Rev. Stat. § 28-105(1)
(Supp. 2015). Schmidt claims that Breen never communicated
this plea offer to him. Schmidt further alleged that it was the
U.S. Supreme Court’s rulings in Lafler v. Cooper, supra, and
Missouri v. Frye, supra, that caused Schmidt’s present coun-
sel to inquire from Bauer whether a plea agreement had been
offered to Schmidt.
   Schmidt alleged that his request for postconviction relief
was not barred by the Nebraska Postconviction Act’s 1-year
statute of limitations for filing such motions. See § 29-3001(4).
   First, Schmidt asserted that the second motion for postcon-
viction relief was timely filed under § 29-3001(4)(d) due to
the presence of the newly recognized constitutional right set
forth above. This section provides that the 1-year statute of
limitations for postconviction relief runs from “[t]he date on
which a constitutional claim asserted was initially recognized
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by the Supreme Court of the United States or the Nebraska
Supreme Court, if the newly recognized right has been made
applicable retroactively to cases on postconviction collateral
review[.]” § 29-3001(4)(d).
   Next, Schmidt alleged that his motion for postconviction
relief was timely filed under § 29-3001(4)(b), which states that
the 1-year statute of limitations for postconviction relief runs
from “[t]he date on which the factual predicate of the consti-
tutional claim or claims alleged could have been discovered
through the exercise of due diligence.” § 29-3001(4)(b).
   Although Schmidt claims to have first received information
regarding the plea offer on March 26, 2012, he asserted that
because the appeal of the denial of his first motion for post-
conviction relief was pending before this court at that time,
the 1-year statute of limitations in § 29-3001 did not begin to
run until our opinion was released on March 19, 2013, thus
making his second motion filed on March 13, 2014, timely. He
similarly alleged that the U.S. Supreme Court cases of Lafler
v. Cooper, ___ U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398
(2012), and Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399,
182 L. Ed. 2d 379 (2012), were released during the pendency
of the prior appeal which in turn tolled the running of the stat-
ute of limitations until the release of this court’s opinion on
March 19, 2013.
   On April 22, 2014, the State filed a motion to dismiss
Schmidt’s second postconviction motion. On September 12, the
court entered an order denying the State’s motion to dismiss
and determining that Schmidt was entitled to an evidentiary
hearing on his claims. However, the State filed a motion to
reconsider on September 25, and a hearing was held on this
motion on October 14.

               First Order of District Court:
        No Newly R ecognized Constitutional R ight
   On January 14, 2015, the district court entered its order in
response to the State’s motion to reconsider. The court first
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                        STATE v. SCHMIDT
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found that Schmidt’s claim based upon a “newly recognized
right” was time barred under § 29-3001(4)(d), relying upon
Williams v. U.S., 705 F.3d 293 (8th Cir. 2013), which con-
cluded that neither Lafler v. Cooper, supra, nor Missouri v.
Frye, supra, announced a new rule of constitutional law.
   However, the court held that questions remained surround-
ing whether and when the factual predicate for Schmidt’s
claim of ineffective assistance of counsel (the failure to com-
municate the plea offer) could reasonably have been discov-
ered. Therefore, the court ordered an evidentiary hearing on
that issue to determine whether the second motion was timely
under § 29-3001(4)(b).

                     Evidentiary Hearing
   On March 19, 2015, an evidentiary hearing was held on
Schmidt’s second motion for postconviction relief. The State
called Breen and Schmidt as witnesses. Schmidt called his
wife and his daughter as witnesses. An affidavit of Bauer, the
former Jefferson County Attorney who prosecuted the origi-
nal action against Schmidt for sexual assault, was received in
evidence. Attached to the affidavit was the plea letter sent by
Bauer to Breen dated November 15, 2006.
   In the plea letter, Bauer stated that “[m]y offer of three
counts of Sexual Contact (Class IIIA Felonies) still stands.”
Breen testified that this plea offer was initially an oral offer,
made by Bauer after Breen approached her and asked if the
State would be making any plea offers. Specifically, the oral
offer provided that if Schmidt pled guilty to three counts of
sexual contact with a child, each a Class IIIA felony, the State
would dismiss the four remaining counts.
   Breen testified further regarding the plea offer and discus-
sions with Schmidt concerning the offer. Breen stated that the
oral plea offer was made early in the case and that he dis-
cussed the offer with Schmidt while he was incarcerated at the
Jefferson County jail. Breen believes that this first discussion
occurred before September 7, 2006. He remembered this date
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                        STATE v. SCHMIDT
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because it was when Schmidt’s bond was reduced at a bond
review hearing, and Schmidt subsequently bonded out of jail
on September 11.
   During this discussion with Schmidt at the jail, Breen
explained that Schmidt would have to plead either guilty or
no contest to the Class IIIA felonies. He also explained the
elements of the crime of sexual contact with a child. Breen
informed Schmidt of the maximum penalty of 5 years and a
$10,000 fine per count and that the sentences could run con-
currently or consecutively. Breen advised Schmidt that the plea
offer was a good deal and recommended accepting it. Schmidt
responded that he would have to speak with his wife before
agreeing to a deal.
   Breen visited Schmidt in jail a second time. Schmidt then
informed Breen of his decision not to accept the offer. Schmidt
had discussed the offer with his wife and was concerned about
the possibility of dying in jail, because of a medical condi-
tion, if he was given consecutive sentences. Schmidt also told
Breen that he would consider accepting a plea offer if the State
would recommend probation. Breen then attempted to garner
a better plea offer.
   Breen thereafter received the November 2006 plea letter
from Bauer. The letter explained that Bauer spoke with the vic-
tims’ families regarding sentencing and that neither family felt
probation would be appropriate. As mentioned previously, the
letter provided that the original oral offer “still stands.”
   Breen testified that within days of receiving this letter, he
informed Schmidt over the telephone that the oral offer had
been made in writing, but the State would probably withdraw
the offer soon. Schmidt again declined the offer, giving the
same explanation as before. Breen testified that fairly close to
trial, he visited the Schmidt residence and informed Schmidt
that the State might be willing to reconsider the plea offer, but
Schmidt rejected this proposal.
   Schmidt testified that the plea offer was never communi-
cated to him and that neither Schmidt nor his current counsel
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                         STATE v. SCHMIDT
                       Cite as 24 Neb. App. 239

were aware of the offer until March 26, 2012, when current
counsel received a copy of the letter from Bauer. Schmidt
claims that if the offer had been communicated to him, he
would have accepted it. Schmidt’s wife also testified that Breen
never discussed a plea offer with Schmidt or herself. Schmidt’s
daughter similarly confirmed that there was no discussion of a
plea agreement prior to trial. Lastly, Schmidt’s wife testified
that she retrieved a copy of Schmidt’s case file from Breen in
March 2010, but the file did not contain the offer letter. Breen
testified that he believed the letter was kept in the case file and
that only his work product was removed prior to transferring
the file to Schmidt’s wife.
               Second Order of District Court:
               Plea Offer Discoverable Through
                   Exercise of Due Diligence
   On May 20, 2015, the district court entered an order finding
that the remaining claim in Schmidt’s second postconviction
motion—the alleged ineffective assistance of counsel for fail-
ure to communicate a plea offer—was both time barred under
§ 29-3001(4)(b) and procedurally barred. The court determined
that Schmidt was not entitled to postconviction relief and
denied his second motion with prejudice.
   The court specifically found the testimony of Breen to
be credible and the testimony of Schmidt, his wife, and his
daughter to not be credible. On this basis, the court found that
the State had extended the plea offer to Schmidt; Breen com-
municated this offer to Schmidt in jail on or before September
7, 2006; Breen advised that Schmidt accept; Schmidt discussed
the offer with his wife; and Schmidt told Breen that he rejected
the offer.
   Further, the court determined that on November 15, 2006,
the State sent a letter to Breen stating that the offer was still
available; Breen contacted Schmidt soon thereafter over the
telephone regarding the offer, advising him to accept it; and
Schmidt rejected the offer a second time. The court also found
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                         STATE v. SCHMIDT
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that 2 or 3 weeks before trial, Breen visited Schmidt and his
wife at their residence and discussed the possibility of revis-
iting the original offer with the State; Schmidt once again
rejected Breen’s suggestion. Lastly, the court found that only
one offer was ever extended to Schmidt by the State; Breen
placed Bauer’s offer letter in his case file following receipt;
and after Schmidt’s direct appeal, Breen removed his work
product from the file and gave the file to Schmidt’s wife for
purposes of Schmidt’s first postconviction action.
   As a result of these factual findings, the court determined
that Schmidt’s claim was time barred under § 29-3001(4)(b).
Specifically, the court held that “[t]he factual predicate of
[Schmidt’s] claim was discoverable through the exercise of due
diligence on or before September 7, 2006, when the State’s
formal plea offer was actually communicated to [Schmidt] by
his trial counsel.”
   Lastly, the district court also found that Schmidt’s claim
was procedurally barred. Because Schmidt was informed of the
plea offer prior to his trial and convictions, his initial opportu-
nity to raise claims of ineffective assistance of counsel pertain-
ing to that offer was within his first motion for postconviction
relief, not his second.
   Because Schmidt assigns as error only the finding that his
second postconviction motion was time barred due to the
unavailability of § 29-3001(4)(b) and (d), this court need not
address whether the claim was procedurally barred.
   Schmidt subsequently perfected this appeal.

                 ASSIGNMENTS OF ERROR
   Schmidt assigns, combined and restated, that the district
court erred in holding that the second motion for postconvic-
tion relief was time barred as a result of being subject to nei-
ther (1) an exception when the factual basis for the motion was
not reasonably discoverable through due diligence nor (2) an
exception for a newly recognized constitutional right.
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                         STATE v. SCHMIDT
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                   STANDARD OF REVIEW
   [1,2] In an evidentiary hearing, as a bench trial provided
by Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008 & Cum.
Supp. 2014) for postconviction relief, the trial judge, as the
trier of fact, resolves conflicts in evidence and questions of
fact, including witness credibility and weight to be given a
witness’ testimony. In an appeal involving such a proceed-
ing for postconviction relief, the trial court’s findings will
be upheld unless such findings are clearly erroneous. State v.
Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015). See, also,
State v. Ware, 292 Neb. 24, 870 N.W.2d 637 (2015) (defendant
requesting postconviction relief must establish basis for such
relief, and findings of district court will not be disturbed unless
clearly erroneous).
   [3,4] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. State v. Thorpe,
290 Neb. 149, 858 N.W.2d 880 (2015). When reviewing ques-
tions of law, an appellate court resolves the questions indepen-
dently of the lower court’s conclusion. Id.

                            ANALYSIS
   [5] The Nebraska Postconviction Act, § 29-3001 et seq.,
is available to a defendant to show that his or her conviction
was obtained in violation of his or her constitutional rights.
State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015). Section
29-3001 establishes a 1-year statute of limitations pertaining
to the filing of verified motions for postconviction relief and
provides that such period begins to run on the later of one of
five dates, as follows:
          (4) A one-year period of limitation shall apply to the
      filing of a verified motion for postconviction relief. The
      one-year limitation period shall run 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 for filing a direct appeal;
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        (b) The date on which the factual predicate of the
     constitutional claim or claims alleged could have been
     discovered through the exercise of due diligence;
        (c) The date on which an impediment created by state
     action, in violation of the Constitution of the United
     States or the Constitution of Nebraska or any law of this
     state, is removed, if the prisoner was prevented from fil-
     ing a verified motion by such state action;
        (d) The date on which a constitutional claim asserted
     was initially recognized by the Supreme Court of the
     United States or the Nebraska Supreme Court, if the
     newly recognized right has been made applicable retro-
     actively to cases on postconviction collateral review; or
        (e) August 27, 2011.
                Discoverability of Factual Basis
                    for Constitutional Claim
   Section 29-3001(4)(b) provides the statutory basis by which
the finding of a factual predicate for a constitutional claim not
previously discoverable through due diligence can extend the
period of available relief under the 1-year statute of limitations
governing motions for postconviction relief.
   [6,7] Generally, newly discovered evidence is evidence
material to the defense that could not with reasonable diligence
have been discovered and produced in the prior proceedings.
State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002). The
factual predicate for a claim concerns whether the important
objective facts could reasonably have been discovered, not
when the claimant should have discovered the legal signifi-
cance of those facts. State v. Mamer, 289 Neb. 92, 853 N.W.2d
517 (2014). Stated another way, the limitations period “begins
when the facts underlying the claim could reasonably be dis-
covered” which is “distinct from discovering that those facts
are actionable.” Id. at 99, 853 N.W.2d at 524.
   Schmidt maintains on appeal that the discovery of the plea
offer, the factual basis for his second motion for postconviction
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relief, did not occur until March 26, 2012. The State argues
that the district court correctly found the plea offer to have
been communicated to Schmidt on or before September 7,
2006, and that therefore, the second motion for postconviction
relief was not timely filed under § 29-3001(4).
   Upon our review, we find that Schmidt’s second motion
for postconviction relief was time barred and ineligible for
the discovery exception provided by § 29-3001(4)(b). The
court’s factual finding that Breen communicated the plea offer
to Schmidt on or before September 7, 2006, while Schmidt
was being held in jail, was not clearly erroneous. Although
Schmidt, his wife, and his daughter provided conflicting tes-
timony that the plea offer letter was not communicated to
Schmidt, we give weight to the fact that the district court
observed the testimony of the witnesses and specifically found
that Breen’s testimony was credible while Schmidt and his
family’s testimony was not credible. We can find no error
in the trial court’s determination in this regard. Although
Breen was not absolutely certain regarding the timing of all
the events in this case, Breen’s testimony about the occur-
rences was sufficiently specific and deliberate to support
his credibility.
   Therefore, because the plea offer was disclosed to Schmidt
on or before September 7, 2006, the statute of limitations
exception provided under § 29-3001(4)(b) for a newly dis-
covered constitutional claim was not applicable and Schmidt’s
second motion for postconviction relief on March 13, 2014,
was time barred.
   Schmidt’s first assignment of error is without merit.

               Existence of Newly R ecognized
                    Constitutional R ight
   Schmidt asserts that the district court erred when it found
defendant’s second motion for postconviction relief was also
time barred under § 29-3001(4)(d), as it did not assert a newly
recognized constitutional claim. As noted above, the court in
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its first order determined that Schmidt’s second motion was
time barred under § 29-3001(4)(d), finding no newly recog-
nized constitutional right supporting Schmidt’s claim.
   Schmidt argues on appeal that the district court incorrectly
determined that the Supreme Court in Lafler v. Cooper, ___
U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), and
Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399, 182 L. Ed.
2d 379 (2012), did not establish a new constitutional right.
Specifically, Schmidt claims these cases provided, for the first
time, that an attorney has a duty to present his criminal cli-
ent with notice of a plea offer and that failure to do so may
amount to ineffective assistance of counsel in violation of the
Sixth Amendment.
   The Eighth Circuit Court of Appeals in Williams v. U.S., 705
F.3d 293 (8th Cir. 2013), clearly held that Lafler and Frye did
not announce a new rule of constitutional law. Specifically, the
court stated:
      In [Lafler] and Frye, the Court noted that its analysis
      was consistent with the approach many lower courts had
      taken for years, as well as with its own precedent. . . .
      We therefore conclude, as have the other circuit courts of
      appeals that have addressed the issue, that neither [Lafler]
      nor Frye announced a new rule of constitutional law.
Williams v. U.S., 705 F.3d at 294.
   Upon our review, we find that the district court was correct
in its determination that Lafler v. Cooper, supra, and Missouri
v. Frye, supra, did not present a new constitutional right.
Schmidt’s claim of ineffective assistance of counsel based on
failure to present a plea offer falls within a category of con-
stitutional claims long recognized by the courts. Therefore,
Schmidt’s second motion for postconviction relief was ineli-
gible for the statute of limitations exception provided under
§ 29-3001(4)(d).
   [8] Schmidt also cites to State v. Alfredson, 287 Neb. 477,
842 N.W.2d 815 (2014), arguing that the Nebraska Supreme
Court did not clearly identify the constitutional right at issue
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until the issuance of this opinion on February 21, 2014. We
disagree with Schmidt’s interpretation of the Alfredson opin-
ion. The Supreme Court in Alfredson was also presented with
a claim that the defendant’s trial counsel was ineffective for
failing to disclose an offered plea bargain. An evidentiary
hearing was held on that claim. The Supreme Court affirmed
the denial of the postconviction claim, finding that the dis-
trict court was not clearly wrong in its factual finding that
no formal offer was made as alleged by the defendant. The
Supreme Court began its analysis by noting that “[r]elying
on federal circuit court precedent, we have previously stated
that a trial counsel’s failure to communicate a plea offer to
a defendant is deficient performance as a matter of law.” Id.
at 483-84, 842 N.W.2d at 821 (emphasis supplied), citing to
State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
The Supreme Court further noted that “[t]his proposition of
law has not been explored by our court with any detail” and
proceeded to analyze the U.S. Supreme Court’s holdings in
Frye which “clarified the issue” that defense counsel has a
duty to communicate formal plea offers. State v. Alfredson,
287 Neb. at 484, 842 N.W.2d at 821. After considering the
holding in Frye, the Supreme Court stated: “We now hold that,
as a general rule, defense counsel has the duty to communi-
cate to the defendant all formal offers from the prosecution to
accept a plea on terms and conditions that may be favorable
to the defendant.” State v. Alfredson, 287 Neb. at 485, 842
N.W.2d at 821-22.
   [9] We read Alfredson as confirmation and further expla-
nation of the Supreme Court’s prior recognition in 2011, in
State v. Iromuanya, supra, that a trial counsel’s failure to
communicate a plea offer to a defendant is deficient per-
formance, in light of the subsequent holding in 2012 in
Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399, 182 L. Ed.
2d 379 (2012). Thus, the Alfredson opinion did not amount
to recognition of a new constitutional right by the Nebraska
Supreme Court.
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   Because Schmidt cannot show that a newly recognized
constitutional right existed to extend the period of limitations
for his claim, the district court did not err in finding that his
claim was barred under § 29-3001(4)(d). See State v. Goynes,
293 Neb. 288, 876 N.W.2d 912 (2016) (similarly holding that
because defendant’s second motion for postconviction relief
filed in 2015 asserted constitutional claim initially recognized
in 2012, it was barred by 1-year limitation period set forth in
§ 29-3001(4)(d)).
   [10] Lastly, based on our above holdings, this court need
not address whether the statute of limitations was tolled during
the appeal of Schmidt’s first motion for postconviction relief.
See Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578
(2015) (appellate court is not obligated to engage in analy-
sis that is not necessary to adjudicate case and controversy
before it).
   Schmidt’s second assignment of error is without merit.
                         CONCLUSION
   The district court properly determined that Schmidt’s second
motion for postconviction relief was time barred pursuant to
§ 29-3001(4). Therefore, we affirm.
                                                    A ffirmed.
