    Nebraska Advance Sheets
320	287 NEBRASKA REPORTS



   We decline to address Castaneda’s argument under Graham
as presented by his brief on appeal, because the possibility
exists that upon remand, Castaneda might not be resentenced
to life imprisonment.
   Finally, the State argues that the district court committed
plain error when it failed to order Castaneda’s three sentences
for use of a deadly weapon to run consecutively “to all other
sentences imposed.”70 We agree and vacate all of Castaneda’s
other sentences and remand the cause for resentencing.71

                       VI. CONCLUSION
   Castaneda’s assignments regarding trial error are without
merit. But the life imprisonment sentences imposed upon
Castaneda were effectively life imprisonment without the possi-
bility of parole and unconstitutional under Miller.72 We accord-
ingly vacate those unconstitutional sentences and remand the
cause for resentencing. We also vacate all of Castaneda’s other
sentences, because the district court committed plain error in
ordering some of those sentences to run concurrently rather
than consecutively.
	Convictions affirmed, all sentences vacated,
	                and cause remanded for resentencing.

70	
      Brief for appellee at 75 (emphasis in original).
71	
      See, Neb. Rev. Stat. § 28-1205(3) (Cum. Supp. 2012); State v. Scott, 284
      Neb. 703, 824 N.W.2d 668 (2012); State v. Russell, 248 Neb. 723, 539
      N.W.2d 8 (1995).
72	
      Miller, supra note 34.




                    State of Nebraska, appellee, v.
                    Douglas M. Mantich, appellant.
                                  ___ N.W.2d ___

                       Filed February 7, 2014.   No. S-11-301.

 1.	 Constitutional Law: Sentences. Whether a sentence violates the Eighth
     Amendment’s cruel and unusual punishment clause presents a question of law.
 2.	 Judgments: Appeal and Error. When reviewing a question of law, an appellate
     court reaches a conclusion independent of the lower court’s ruling.
                         Nebraska Advance Sheets
	                               STATE v. MANTICH	321
	                               Cite as 287 Neb. 320

 3.	 Constitutional Law: Criminal Law: Statutes: Convictions: Sentences: Time.
     When a decision of the U.S. Supreme Court results in a “new rule,” that rule
     applies to all criminal cases still pending on direct review. As to convictions
     that are already final, however, the rule applies only in limited circumstances.
     New substantive rules generally apply retroactively. This includes decisions that
     narrow the scope of a criminal statute by interpreting its terms, as well as con-
     stitutional determinations that place particular conduct or persons covered by the
     statute beyond the State’s power to punish.
 4.	 Constitutional Law: Criminal Law: Time. New rules of procedure generally
     do not apply retroactively. The only exception is those rules that are “watershed
     rules of criminal procedure” implicating the fundamental fairness and accuracy of
     the criminal proceedings.
 5.	 Constitutional Law: Criminal Law: Minors: Sentences: Time: Appeal and
     Error. The holding of the U.S. Supreme Court in Miller v. Alabama, ___ U.S.
     ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), that the Eighth Amendment
     forbids a sentencing scheme which mandates life in prison without the possibility
     of parole for juvenile offenders, is a new substantive rule of constitutional law
     which applies retroactively to criminal cases on collateral review.

   Appeal from the District Court for Douglas County: J.
Patrick Mullen, Judge. Sentence vacated, and cause remanded
for resentencing.

      Adam J. Sipple, of Johnson & Mock, for appellant.

  Jon Bruning, Attorney General, and J. Kirk Brown for
appellee.

  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.

   Stephan, J.
   In 1994, Douglas M. Mantich was convicted of first degree
murder and use of a firearm to commit a felony. He was sen-
tenced to life imprisonment for the murder conviction and
5 to 20 years’ imprisonment for the firearm conviction. The
murder was committed when Mantich was 16 years old. On
direct appeal, we affirmed his convictions and life imprison-
ment sentence and vacated and remanded his firearm sentence
for resentencing.1

 1	
      State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996).
    Nebraska Advance Sheets
322	287 NEBRASKA REPORTS



   In 2010, Mantich filed an amended postconviction motion
alleging his life imprisonment sentence violated the Eighth
Amendment’s prohibition on cruel and unusual punishment
because it was (1) categorically prohibited under the U.S.
Supreme Court’s holding in Graham v. Florida2 and (2) grossly
disproportionate to the offense for which he was convicted.
Mantich also alleged that the attorney who represented him at
his trial and on direct appeal was ineffective in not asserting
these Eighth Amendment claims. The district court denied the
postconviction motion without conducting an evidentiary hear-
ing, and Mantich appealed from that order.
   We heard oral arguments in the appeal on October 7, 2011.
On July 11, 2012, we set the case for reargument and ordered
supplemental briefing after the U.S. Supreme Court held in
Miller v. Alabama3 that the Eighth Amendment forbids a state
sentencing scheme that mandates life in prison without the pos-
sibility of parole for a juvenile offender convicted of homicide.
We now hold that Mantich’s life imprisonment sentence is
unconstitutional under Miller.
                              I. FACTS
   On December 5, 1993, a gathering was held to mourn the
death of a “Lomas” gang member. Several members of the
gang attended the party, including Mantich, Gary Brunzo,
Daniel Eona, Juan Carrera, and Angel Huerta. At the gathering,
Mantich consumed between 5 and 10 beers and smoked mari-
juana in a 21⁄2­-hour period.
   Sometime after 1 a.m., Carrera decided that he wanted to
steal a car and commit a driveby shooting of a member of a
rival gang. While holding a gun, Eona responded that he also
wanted to steal a car and talked about “jackin’ somebody” and
“putting a gun to their head.” Brunzo and Eona then walked
toward Dodge Street to steal a vehicle. They returned about 20
minutes later in a stolen red minivan, and Carrera and Huerta

 2	
      Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825
      (2010).
 3	
      Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407
      (2012).
                  Nebraska Advance Sheets
	                       STATE v. MANTICH	323
	                       Cite as 287 Neb. 320

got in. Over his girlfriend’s objection and attempt to physically
restrain him, Mantich also got into the van.
   The van had no rear seats. Eona was in the driver’s seat,
and Brunzo was in the front passenger seat. Carrera sat behind
the driver’s seat; Huerta sat on the passenger side, close to the
sliding side door; and Mantich sat behind Carrera and Huerta,
toward the back of the van. After a short time, Mantich realized
that a man, later identified as Henry Thompson, was in the van.
Thompson was kneeling between the driver’s seat and the front
passenger seat with his hands over his head and his head facing
the front of the van.
   The gang members began chanting “Cuz” and “Blood.”
Mantich thought the purpose was to make Thompson believe
they were affiliated with a different gang. Eona demanded
Thompson’s money, and Brunzo told Thompson they were
going to shoot him. Mantich saw Brunzo and Eona poke
Thompson in the head with their guns. Eventually, a shot was
fired and Thompson was killed. Thompson’s body was pulled
out of the van and left on 13th Street.
   The group then drove to Carrera’s house so he could retrieve
his gun. After this, they drove by a home and fired several
shots at it from the vehicle. Later, they sank the van in the
Missouri River and walked back to 13th Street. From there,
Mantich and Huerta took all the guns and went to Huerta’s
house to hide them. Brunzo, Eona, and Carrera walked toward
the area of Thompson’s body.
   After hiding the guns with Huerta, Mantich walked to Brian
Dilly’s house. While still intoxicated, Mantich told Dilly and
Dilly’s brothers about the events of the night. Mantich claimed
he had pulled the trigger and killed Thompson. When the 6
o’clock news featured a story on the homicide, Mantich said,
“‘I told you so,’” and “‘I told you I did it.’” About an hour
after the newscast, Mantich told Dilly that Brunzo was actu-
ally the person who shot and killed Thompson. The police later
learned about Mantich’s conversations with Dilly, and arrest
warrants were issued for Mantich, Brunzo, Eona, and Carrera.
Mantich was arrested on January 4, 1994.
   Mantich agreed to talk with Omaha police about what hap-
pened and initially claimed that Brunzo shot Thompson. The
    Nebraska Advance Sheets
324	287 NEBRASKA REPORTS



police told Mantich that statements were being obtained from
Brunzo, Eona, and Carrera and that Mantich’s statement was
inconsistent with the information the police had acquired. The
police also told Mantich that Dilly said Mantich confessed to
shooting Thompson. Mantich admitted telling Dilly he shot
Thompson, but explained that it was a lie and that he was only
trying to look like “a bad ass.” Mantich claimed that he had not
shot anyone and that Brunzo was the shooter.
   The police then told Mantich they knew what happened
and assured Mantich that his family and girlfriend “would not
abandon him” if he told the truth. At this point, Mantich admit-
ted that he had pulled the trigger. Mantich said, “‘I’m sorry
it happened. I wished it wouldn’t have happened.’” Mantich
further stated, “‘They handed me the gun and said shoot him,
so I did it.’” Mantich again confessed during a taped statement
to shooting Thompson.
   Mantich testified in his own behalf at trial. He acknowl-
edged his statements to Dilly and the police that he had shot
Thompson, but told the jury that he had not shot Thompson.
On September 26, 1994, the jury returned a verdict of guilty on
one charge of first degree murder and one charge of use of a
firearm to commit a felony.

               1. Sentencing and Direct Appeal
   In October 1994, the district court sentenced Mantich to a
term of life imprisonment on the first degree murder conviction
and to 5 to 20 years’ imprisonment on the conviction of use
of a firearm to commit a felony. Mantich’s life imprisonment
sentence carries no possibility of release on parole unless the
Board of Pardons commutes his sentence to a term of years.4
The court ordered the sentences to run consecutively.
   On direct appeal, Mantich assigned various errors, including
that the evidence was insufficient to support his convictions.
He did not assert an Eighth Amendment claim with respect to
his life imprisonment sentence. We found no merit in any of
his assignments of error, but concluded that there was plain

 4	
      See, Neb. Const. art. IV, § 13; Neb. Rev. Stat. § 83-1,126 (Reissue 2008);
      Poindexter v. Houston, 275 Neb. 863, 750 N.W.2d 688 (2008).
                        Nebraska Advance Sheets
	                             STATE v. MANTICH	325
	                             Cite as 287 Neb. 320

error resulting from a failure to give credit for time served on
his sentence for use of a firearm to commit a felony. We there-
fore affirmed his convictions but vacated the firearm sentence
and remanded the cause with directions to resentence Mantich,
giving him credit for time served.5
                 2. Postconviction P roceedings
   Mantich filed a pro se motion for postconviction relief on
September 25, 2006. The court dismissed the first five grounds
of the motion, reasoning they were the same grounds Mantich
raised on direct appeal. The court did not dismiss Mantich’s
claim of ineffective assistance of counsel and appointed coun-
sel to represent Mantich with respect to that claim. That attor-
ney filed the operative amended motion for postconviction
relief on August 31, 2010.
   The amended motion asserted Mantich’s sentence of life
imprisonment without parole violated the Eighth Amendment
because it was (1) categorically prohibited under Graham v.
Florida6 and (2) disproportionate to the offense for which he
was convicted. In Graham,7 the U.S. Supreme Court held that
“the Eighth Amendment forbids a State from imposing a life
without parole sentence on a juvenile nonhomicide offender.”
The amended motion also alleged the attorney who represented
Mantich during trial and on direct appeal was ineffective for
not objecting to the life imprisonment without parole sentence
on Eighth Amendment grounds.
   The State moved to dismiss Mantich’s amended motion,
asserting Graham did not apply because Mantich was con-
victed of a homicide offense. The State further contended that
Mantich’s counsel was not ineffective.
   On March 17, 2011, the district court denied Mantich’s
amended motion without an evidentiary hearing. The court
concluded that Mantich’s life imprisonment sentence was not
categorically barred under Graham or any decision of this
court. Mantich filed this timely appeal. While it was pending,

 5	
      See Mantich, supra note 1.
 6	
      Graham, supra note 2.
 7	
      Id., 560 U.S. at 75.
    Nebraska Advance Sheets
326	287 NEBRASKA REPORTS



the U.S. Supreme Court decided Miller v. Alabama.8 Miller
held that a sentence of mandatory life imprisonment without
parole for a juvenile violated the Eighth Amendment’s prohibi-
tion on cruel and unusual punishment. We ordered reargument
and supplemental briefing on the effect of Miller on Mantich’s
postconviction motion.

                II. ASSIGNMENTS OF ERROR
   In the original appeal from the denial of postconviction
relief, Mantich assigned, restated and summarized, that the
district court erred in (1) failing to vacate his sentence pursu-
ant to the holding of Graham, (2) failing to vacate his sentence
as unconstitutionally disproportionate to the offense of felony
murder, and (3) failing to hold an evidentiary hearing on the
issues presented by his ineffective assistance of counsel and
Eighth Amendment claims. After we ordered supplemental
briefing in light of Miller, Mantich reasserted all of the assign-
ments of error raised in his initial brief. He also assigned,
restated and consolidated, that his life imprisonment sentence
is a violation of the 8th and 14th Amendments based on the
U.S. Supreme Court’s decision in Miller.

               III. STANDARD OF REVIEW
   [1,2] Whether a sentence violates the Eighth Amendment’s
cruel and unusual punishment clause presents a question of
law.9 When reviewing a question of law, an appellate court
reaches a conclusion independent of the lower court’s ruling.10

                         IV. ANALYSIS
           1. Miller v. A labama Applies to Mantich
   In Miller v. Alabama,11 the Court held that the “Eighth
Amendment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile offenders.”

 8	
      Miller, supra note 3.
 9	
      See State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
10	
      State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009); State v. Davis, 276
      Neb. 755, 757 N.W.2d 367 (2008).
11	
      Miller, supra note 3, 132 S. Ct. at 2469.
                        Nebraska Advance Sheets
	                              STATE v. MANTICH	327
	                              Cite as 287 Neb. 320

The Court reached its conclusion by applying two lines of
precedent. First, the Court recognized two previous juvenile
cases, Graham v. Florida12 and Roper v. Simmons.13 Graham
held that a juvenile could not be sentenced to life imprisonment
without parole for a nonhomicide offense. Roper held that a
juvenile could not be sentenced to death. Both thus announced
categorical bans on sentencing practices as they apply to juve-
niles. The Court in Miller reasoned that Graham and Roper
established that “children are constitutionally different from
adults for purposes of sentencing.”14 Specifically, the Court in
Miller noted that compared to adults, children lack maturity
and have an underdeveloped sense of responsibility, are more
vulnerable to outside influences and pressures, and have yet
to fully develop their character. Because of these differences,
the Court reasoned juveniles have “diminished culpability and
greater prospects for reform.”15
   Second, the Miller Court recognized prior Court jurispru-
dence requiring individualized decisionmaking in capital pun-
ishment cases.16 It then applied this jurisprudence to the impo-
sition of life imprisonment on juveniles by reasoning that a
life imprisonment without parole sentence for a juvenile is
tantamount to a death sentence for an adult.17 According to the
Court, because the Eighth Amendment when applied to adults
requires individualized sentencing prior to the imposition of a
death sentence, the Eighth Amendment when applied to juve-
niles requires individualized sentencing prior to the imposition
of a sentence of life imprisonment without parole.18

12	
      Graham, supra note 2.
13	
      Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
14	
      Miller, supra note 3, 132 S. Ct. at 2464.
15	
      Id.
16	
      Miller, supra note 3. See, Sumner v. Shuman, 483 U.S. 66, 107 S. Ct.
      2716, 97 L. Ed. 2d 56 (1987); Eddings v. Oklahoma, 455 U.S. 104, 102 S.
      Ct. 869, 71 L. Ed. 2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct.
      2954, 57 L. Ed. 2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280,
      96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976).
17	
      Miller, supra note 3.
18	
      Id.
    Nebraska Advance Sheets
328	287 NEBRASKA REPORTS



   The threshold question presented to us in this appeal is
whether the holding in Miller applies to Mantich so that his
sentence must be vacated and this cause remanded for a new
sentencing hearing. We held in State v. Castaneda19 that life
imprisonment sentences imposed on juveniles in Nebraska
prior to Miller were mandatory sentences and were equivalent
to life imprisonment without parole. But Mantich’s life impris-
onment sentence was imposed and his first degree murder
conviction became final years before Miller was decided. He is
entitled to be resentenced only if the rule announced in Miller
applies retroactively to cases that became final prior to its pro-
nouncement, i.e., cases on collateral review.

                       (a) Retroactivity Test
   In its 1989 decision in Teague v. Lane,20 the U.S. Supreme
Court set forth a test for determining when a new rule of con-
stitutional law will be applied to cases on collateral review.
Before announcing the test, however, the Court emphasized
that “the question ‘whether a decision [announcing a new rule
should] be given prospective or retroactive effect should be
faced at the time of [that] decision.’”21 The Court explained
that “[r]etroactivity is properly treated as a threshold question,
for, once a new rule is applied to the defendant in the case
announcing the rule, evenhanded justice requires that it be
applied retroactively to all who are similarly situated.”22
   According to Teague, “new rules should always be applied
retroactively to cases on direct review, but . . . generally they
should not be applied retroactively to criminal cases on collat-
eral review.”23 The rationale for the distinction is that collateral
review is not designed as a substitute for direct review and that

19	
      State v. Castaneda, ante p. 289, ___ N.W.2d ___ (2014).
20	
      Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).
21	
      Id., 489 U.S. at 300, quoting Paul J. Mishkin, Foreword: The High Court,
      the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56
      (1965).
22	
      Teague, supra note 20, 489 U.S. at 300.
23	
      Id., 489 U.S. at 303.
                         Nebraska Advance Sheets
	                              STATE v. MANTICH	329
	                              Cite as 287 Neb. 320

the government has a legitimate interest in having judgments
become and remain final.24
   Teague articulated two exceptions to the general rule of
nonretroactivity for cases on collateral review. First, a new
rule should be applied retroactively if it “places ‘certain kinds
of primary, private individual conduct beyond the power of
the criminal law-making authority to proscribe.’”25 Second,
a new rule should be applied retroactively if it “requires the
observance of ‘those procedures that . . . are “implicit in the
concept of ordered liberty.”’”26 The ultimate holding in Teague
was this: “Unless they fall within an exception to the general
rule, new constitutional rules of criminal procedure will not be
applicable to those cases which have become final before the
new rules are announced.”27
   [3] Since Teague, the Court has refined the retroactivity
analysis. The most significant refinement occurred in Schriro
v. Summerlin.28 The issue in Schriro was whether the Court’s
decision in Ring v. Arizona29 applied retroactively to a death
penalty case on federal habeas review. In deciding this, the
Court stated:
         When a decision of this Court results in a “new rule,”
      that rule applies to all criminal cases still pending on
      direct review. . . . As to convictions that are already final,
      however, the rule applies only in limited circumstances.
      New substantive rules generally apply retroactively. This
      includes decisions that narrow the scope of a criminal

24	
      See Teague, supra note 20.
25	
      Id., 489 U.S. at 307, quoting Mackey v. United States, 401 U.S. 667, 91 S.
      Ct. 1160, 28 L. Ed. 2d 404 (1971) (Harlan, J., concurring in part, and in
      part dissenting).
26	
      Id., quoting Mackey, supra note 25 (quoting Palko v. Connecticut, 302
      U.S. 319, 58 S. Ct. 149, 82 L. Ed. 2d 288 (1937), overruled on other
      grounds, Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d
      707 (1969)).
27	
      Teague, supra note 20, 489 U.S. at 310.
28	
      Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442
      (2004).
29	
      Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
    Nebraska Advance Sheets
330	287 NEBRASKA REPORTS



      statute by interpreting its terms, . . . as well as consti-
      tutional determinations that place particular conduct or
      persons covered by the statute beyond the State’s power
      to punish. . . . Such rules apply retroactively because
      they “necessarily carry a significant risk that a defendant
      stands convicted of ‘an act that the law does not make
      criminal’” or faces a punishment that the law cannot
      impose upon him.30
The Court explained that although it had sometimes referred
to rules of this type as “falling under an exception to Teague’s
bar on retroactive application of procedural rules, . . . they are
more accurately characterized as substantive rules not subject
to the bar.”31
   [4] Schriro further explained that new “rules of procedure”
generally do not apply retroactively.32 The only exception is
those rules that are “‘“watershed rules of criminal procedure”
implicating the fundamental fairness and accuracy of the crimi-
nal proceeding.’”33 This class of rules is extremely narrow.34
   In 2008, the U.S. Supreme Court ruled that the Teague/
Schriro retroactivity analysis it applies in federal habeas
actions is not binding upon state courts when deciding issues
of retroactivity under state law.35 In doing so, the Court noted
that a state court is “‘free to choose the degree of retroactivity
or prospectivity which [it] believe[s] appropriate to the par-
ticular rule under consideration, so long as [it] give[s] federal
constitutional rights at least as broad a scope as the United
States Supreme Court requires.’”36 In other words, states can

30	
      Schriro, supra note 28, 542 U.S. at 351-52 (citations omitted).
31	
      Id., 542 U.S. at 352 n.4 (citations omitted).
32	
      Id., 542 U.S. at 352.
33	
      Id.
34	
      Id.
35	
      Danforth v. Minnesota, 552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859
      (2008).
36	
      Id., 552 U.S. at 276, quoting State v. Fair, 263 Or. 383, 502 P.2d 1150
      (1972).
                         Nebraska Advance Sheets
	                              STATE v. MANTICH	331
	                              Cite as 287 Neb. 320

give broader effect to new rules than is required by the Teague/
Schriro test.37
   We have adhered to the Teague/Schriro test in the two
cases in which we have addressed the retroactivity of a new
rule announced by the U.S. Supreme Court to cases on state
postconviction review,38 and we see no reason to depart from
that analysis.

                      (b) Court Precedent
   It is very clear that Miller announced a new rule. This is
so because the rule announced in Miller was not dictated by
precedent existing at the time Mantich’s first degree murder
conviction became final.39 The new rule can apply to Mantich,
who is before this court on collateral review, if it is either a
substantive rule or a watershed rule of criminal procedure.40
   According to Schriro, the key distinction in the retroactiv-
ity analysis is whether the new rule is substantive or proce-
dural.41 Schriro held that substantive rules include those that
(1) narrow the scope of a criminal statute by interpreting its
terms or (2) place particular conduct or persons covered by
the statute beyond the State’s power to punish. The second
category encompasses “rules prohibiting a certain category of
punishment for a class of defendants because of their status or
offense.”42 Substantive rules apply retroactively because they
carry a “‘significant risk’” that a defendant stands convicted


37	
      Danforth, supra note 35.
38	
      State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003); State v. Reeves, 234
      Neb. 711, 453 N.W.2d 359 (1990), cert. granted and judgment vacated
      498 U.S. 964, 111 S. Ct. 425, 112 L. Ed. 2d 409 (1990).
39	
      See Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173, 167 L. Ed. 2d 1
      (2007).
40	
      Id.; Schriro, supra note 28.
41	
      Schriro, supra note 28.
42	
      Penry v. Lynaugh, 492 U.S. 302, 330, 109 S. Ct. 2934, 106 L. Ed. 2d 256
      (1989), abrogated on other grounds, Atkins v. Virginia, 536 U.S. 304, 122
      S. Ct. 2242, 153 L. Ed. 2d 335 (2002).
    Nebraska Advance Sheets
332	287 NEBRASKA REPORTS



of “‘“an act that the law does not make criminal”’” or “faces a
punishment that the law cannot impose upon him.”43
   It is clear that categorical bans on sentences are substan-
tive rules.44 Rules forbidding imposition of the death sentence
on persons with mental retardation45 or on juveniles46 and a
rule forbidding life imprisonment for a juvenile convicted
of a nonhomicide offense47 have been considered substan-
tive rules.48
   In comparison, rules that “regulate only the manner of deter-
mining the defendant’s culpability are procedural.”49 They do
not produce a class of persons convicted of conduct the law
does not make criminal, but merely raise the possibility that
someone convicted with use of the invalidated procedure might
have been acquitted otherwise.50
   In the sentencing context, the Court has found a number of
rules to be procedural. In Schriro v. Summerlin,51 the Court
addressed whether the rule announced in Ring v. Arizona52
applied retroactively to cases on collateral review. Ring held
that a jury, and not a judge, had to find an aggravating
circumstance necessary for imposition of the death penalty.
Schriro held this rule was procedural, noting it merely “altered
the range of permissible methods for determining whether a

43	
      Schriro, supra note 28, 542 U.S. at 352, quoting Bousley v. United States,
      523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998).
44	
      See Penry, supra note 42.
45	
      Atkins, supra note 42.
46	
      Roper, supra note 13.
47	
      Graham, supra note 2.
48	
      See, e.g., Allen v. Buss, 558 F.3d 657 (7th Cir. 2009) (Atkins); Nixon v.
      State, 2 So. 3d 137 (Fla. 2009) (Atkins); McStoots v. Com., 245 S.W.3d
      790 (Ky. App. 2007) (Roper); Duncan v. State, 925 So. 2d 245 (Ala. Crim.
      App. 2005) (Roper); People v. Rainer, No. 10CA2414, 2013 WL 1490107
      (Colo. App. Apr. 11, 2013) (Graham); Bonilla v. State, 791 N.W.2d 697
      (Iowa 2010) (Graham).
49	
      Schriro, supra note 28, 542 U.S. at 353.
50	
      Schriro, supra note 28.
51	
      Id.
52	
      Ring, supra note 29.
                         Nebraska Advance Sheets
	                              STATE v. MANTICH	333
	                              Cite as 287 Neb. 320

defendant’s conduct is punishable by death.”53 It noted that
rules that “allocate decisionmaking authority in this fashion
are prototypical procedural rules.”54 Notably, however, the
Court stated:
      This Court’s holding that, because [a state] has made
      a certain fact essential to the death penalty, that fact
      must be found by a jury, is not the same as this Court’s
      making a certain fact essential to the death penalty.
      The former was a procedural holding; the latter would
      be substantive.55
   In Lambrix v. Singletary,56 the Court addressed whether the
rule announced in Espinosa v. Florida57 applied retroactively to
cases on collateral review. Espinosa held that if a sentencing
judge in a state that requires specified aggravating circum-
stances to be weighed against any mitigating circumstances at
the sentencing phase of a capital trial is required to give def-
erence to a jury’s advisory sentencing recommendation, then
neither the jury nor the judge is constitutionally permitted to
weigh invalid aggravating circumstances. Without extensive
analysis, the Lambrix Court concluded this rule did not pro-
hibit the imposition of capital punishment on a particular class
of persons.
   In Sawyer v. Smith,58 the Court addressed whether the rule
announced in Caldwell v. Mississippi59 applied retroactively
to cases on collateral review. Caldwell held that the Eighth
Amendment prohibits imposition of the death penalty by a
sentencer that has been led to the false belief that the responsi-
bility for determining the appropriateness of the sentence rests

53	
      Schriro, supra note 28, 542 U.S. at 353.
54	
      Id.
55	
      Id., 542 U.S. at 354.
56	
      Lambrix v. Singletary, 520 U.S. 518, 117 S. Ct. 1517, 137 L. Ed. 2d 771
      (1997).
57	
      Espinosa v. Florida, 505 U.S. 1079, 112 S. Ct. 2926, 120 L. Ed. 2d 854
      (1992).
58	
      Sawyer v. Smith, 497 U.S. 227, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990).
59	
      Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231
      (1985).
    Nebraska Advance Sheets
334	287 NEBRASKA REPORTS



elsewhere. The Sawyer Court concluded the rule was not retro-
active, because it was simply a procedural rule “designed as an
enhancement of the accuracy of capital sentencing.”60

               (c) Miller and Other Jurisdictions
   A number of jurisdictions have considered whether Miller
announced a rule that is to be applied retroactively. The results
are varied. The primary point of dissension is whether the rule
announced in Miller is substantive.
   The Louisiana Supreme Court held in State v. Tate61 that the
rule announced in Miller was a procedural one, largely because
the Court in Miller specifically stated that “‘[o]ur decision
does not categorically bar a penalty for a class of offenders or
type of crime.’” Louisiana reasoned that Miller simply “altered
the range of permissible methods” for determining whether
a juvenile could be sentenced to life imprisonment without
parole.62 In Com. v. Cunningham63 the Pennsylvania Supreme
Court adopted similar reasoning, holding that “by its own
terms, the Miller holding ‘does not categorically bar a penalty
for a class of offenders.’” A U.S. district court in Virginia has
also adopted this rationale.64
   The Minnesota Supreme Court held in Chambers v. State65
that the rule announced in Miller was procedural and not
substantive because it did not “eliminate the power of the
State to impose the punishment of life imprisonment with-
out the possibility of release upon a juvenile offender who
has committed a homicide offense.” Instead, it reasoned
that Miller simply requires “‘that a sentencer follow a cer-
tain process—considering an offender’s youth and attendant

60	
      Sawyer, supra note 58, 497 U.S. at 244.
61	
      State v. Tate, No. 2012-OK-2763, 2013 WL 5912118 at *6 (La. Nov. 5,
      2013), quoting Miller, supra note 3.
62	
      Id.
63	
      Com. v. Cunningham, 81 A.3d 1, 10 (Pa. 2013), quoting Miller, supra
      note 3.
64	
      Johnson v. Ponton, No. 3:13-CV-404, 2013 WL 5663068 (E.D. Va. Oct.
      16, 2013) (memorandum opinion).
65	
      Chambers v. State, 831 N.W.2d 311, 328 (Minn. 2013).
                        Nebraska Advance Sheets
	                              STATE v. MANTICH	335
	                              Cite as 287 Neb. 320

characteristics—before imposing’” a sentence of life impris-
onment without parole.66 The U.S. Court of Appeals for the
11th and 5th Circuits and the Michigan Court of Appeals have
all adopted similar reasoning.67 The 11th Circuit placed partic-
ular reliance on Penry v. Lynaugh.68 In Penry, the Court held
that a new rule “prohibiting a certain category of punishment
for a class of defendants because of their status or offense”
is retroactive, but only where a class cannot be subjected to
the punishment “regardless of the procedures followed.”69 The
11th Circuit reasoned that Miller is not substantive, because
it merely altered the range of permissible methods for deter-
mining whether a juvenile’s conduct is punishable by life
imprisonment without parole and did not completely forbid
a jurisdiction from imposing a sentence of life imprisonment
without parole.70
   But at least four jurisdictions have reasoned that the rule
announced in Miller is a substantive one, largely because it
fits into the second category of substantive rules announced
in Schriro. The Illinois Court of Appeals held in People v.
Morfin71 that Miller was a substantive rule because it “man-
dates a sentencing range broader than that provided by statute
for minors convicted of first degree murder.” A concurring
opinion emphasized that the rule was substantive because
Miller forbids an entire category of sentence—a mandatory
sentence of life imprisonment for juveniles.72 The concur-
rence also reasoned that a new rule that did not prohibit a
certain sentence in every case but prohibited the mandatory

66	
      Id., quoting Miller, supra note 3.
67	
      See In re Morgan, 717 F.3d 1186 (11th Cir. 2013) (en banc); Craig v.
      Cain, No. 12-30035, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (unpublished
      opinion); and People v. Carp, 298 Mich. App. 472, 828 N.W.2d 685
      (2012).
68	
      Penry, supra note 42.
69	
      Id., 492 U.S. at 330.
70	
      In re Morgan, supra note 67.
71	
      People v. Morfin, 2012 IL App (1st) 103568, ¶ 56, 981 N.E.2d 1010, 1022,
      367 Ill. Dec. 282, 294 (2012).
72	
      Morfin, supra note 71 (Sterba, J., specially concurring).
    Nebraska Advance Sheets
336	287 NEBRASKA REPORTS



imposition of that sentence was a substantive rule and not
a procedural one.73 Similarly, in Jones v. Mississippi,74 the
Supreme Court of Mississippi reasoned that Miller was a
substantive rule because it “explicitly foreclosed imposition
of a mandatory sentence of life without parole on juve-
nile offenders.” It further reasoned that Miller required a
substantive change in Mississippi law, because it required
legislative modification of the existing law that had no provi-
sion for following the dictates of Miller. Very recently, the
Supreme Judicial Court of Massachusetts held the Miller
rule was substantive because it “forecloses the imposition of
a certain category of punishment—mandatory life in prison
without the possibility of parole—on a specific class of
defendants.”75 And the Supreme Court of Iowa in State v.
Ragland76 recently held:
         From a broad perspective, Miller does mandate a new
      procedure. Yet, the procedural rule for [an individualized
      sentencing] hearing is the result of a substantive change
      in the law that prohibits mandatory life-without-parole
      sentencing. Thus, the case bars states from imposing a
      certain type of punishment on certain people. . . . “Such
      rules apply retroactively because they ‘necessarily carry a
      significant risk that a defendant’ . . . faces a punishment
      that the law cannot impose upon him.”
The Iowa Supreme Court also emphasized an article written by
constitutional scholar Erwin Chemerinsky in which he stated:
      “There is a strong argument that Miller should apply
      retroactively: It says that it is beyond the authority of
      the criminal law to impose a mandatory sentence of life
      without parole. It would be terribly unfair to have indi-
      viduals imprisoned for life without any chance of parole
      based on the accident of the timing of the trial.

73	
      Id.
74	
      Jones v. Mississippi, 122 So. 3d 698, 702 (Miss. 2013).
75	
      Diatchenko v. District Attorney for Suffolk Dist., 466 Mass. 655, 666, ___
      N.E.2d ___, ___ (2013).
76	
      State v. Ragland, 836 N.W.2d 107, 115-16 (Iowa 2013), quoting Schriro,
      supra note 28.
                        Nebraska Advance Sheets
	                              STATE v. MANTICH	337
	                              Cite as 287 Neb. 320

         “. . . .
         “. . . [T]he Miller Court did more than change proce-
      dures; it held that the government cannot constitutionally
      impose a punishment. As a substantive change in the law
      which puts matters outside the scope of the government’s
      power, the holding should apply retroactively.”77
   Courts have also reached differing conclusions as to how
the procedural posture of Miller affects the retroactivity anal-
ysis. Miller involved two defendants who were before the
Court in separate but consolidated cases. Defendant Evan
Miller was before the Court after his direct appeal from his
criminal conviction was denied.78 But the other defendant,
Kuntrell Jackson, was before the Court on collateral review;
he sought relief after a state court dismissed his application
for a writ of state habeas corpus.79 In announcing the new
rule in Miller, the Court made no distinction between the
procedural postures of the two defendants. Instead, it simply
reversed both of the lower court judgments and remanded
the causes “for further proceedings not inconsistent with
this opinion.”80
   At least three jurisdictions have reasoned that the Court’s
equal treatment of the two defendants is a factor that must
be considered in the retroactivity analysis. In Ragland, the
Iowa Supreme Court noted that Jackson’s case was remanded
so that Jackson could be given an individualized sentenc-
ing hearing and reasoned that “[t]here would have been no
reason for the Court to direct such an outcome if it did not
view the Miller rule as applying retroactively to cases on col-
lateral review.”81 Ragland also noted that the dissent in Miller

77	
      Ragland, supra note 76, 836 N.W.2d at 117, quoting Erwin Chemerinsky,
      Chemerinsky: Juvenile Life-Without-Parole Case Means Courts Must Look
      at Mandatory Sentences, A.B.A. J. Law News Now (posted Aug. 8,
      2012), http://www.abajournal.com/news/article/chemerinsky_juvenile_life-
      without-parole_case_means_courts_must_look_at_sen/.
78	
      See Miller, supra note 3.
79	
      Id.
80	
      Miller, supra note 3, 132 S. Ct. at 2475.
81	
      Ragland, supra note 76, 836 N.W.2d at 116.
    Nebraska Advance Sheets
338	287 NEBRASKA REPORTS



suggested the majority’s decision would invalidate other cases
across the nation and reasoned that the dissent would not have
raised such a concern if the Court did not intend its holding
to apply to cases on collateral review. In People v. Williams,82
an Illinois appellate court found it “instructive” that the Court
applied the Miller rule to Jackson when he was before the
Court on collateral review. And another Illinois appellate
court noted the “relief granted to Jackson in Miller tends to
indicate that Miller should apply retroactively on collateral
review.”83 Most recently, in Diatchenko v. District Attorney for
Suffolk Dist.84 the highest court in Massachusetts reasoned that
because the Court applied the rule to Jackson, “evenhanded
justice requires that it be applied retroactively to all who are
similarly situated.”
   Other jurisdictions, however, conclude the Court’s treatment
of Jackson is not a relevant factor in the retroactivity analysis.
In Com. v. Cunningham,85 the Pennsylvania Supreme Court
noted that it was not clear the retroactivity issue was before
the Court with respect to Jackson and that in the absence of
a “specific, principled retroactivity analysis” by the Court, it
would not deem the Court to have held the Miller rule applied
retroactively just because the Court applied it to Jackson.
Similarly, in People v. Carp,86 the Michigan Court of Appeals
reasoned that the “mere fact that the Court remanded Jackson
for resentencing does not constitute a ruling or determination
on retroactivity.” Carp further reasoned that the issue of retro-
activity was not raised as to Jackson and that thus, the Court
had no reason to address it.
   A federal district court in Virginia has taken a slightly dif-
ferent approach. In Johnson v. Ponton,87 the court reasoned

82	
      People v. Williams, 2012 IL App (1st) 111145, ¶ 54, 982 N.E.2d 181, 197,
      367 Ill. Dec. 503, 519 (2012).
83	
      Morfin, supra note 71, ¶ 57, 981 N.E.2d at 1023, 367 Ill. Dec. at 295.
84	
      Diatchenko, supra note 75, 466 Mass. at 667, ___ N.E.2d at ___.
85	
      Cunningham, supra note 63, 81 A.3d at 9.
86	
      Carp, supra note 67, 298 Mich. App. at 518, 828 N.W.2d at 712.
87	
      Johnson, supra note 64.
                         Nebraska Advance Sheets
	                              STATE v. MANTICH	339
	                              Cite as 287 Neb. 320

that although the U.S. Supreme Court stated in Teague v.
Lane88 that the retroactivity analysis is a threshold question
and a prerequisite for announcement of a new constitutional
rule, it has forgone this analysis in at least one recent case.
Specifically, in Padilla v. Kentucky,89 a petitioner brought a
collateral challenge to his conviction. In deciding Padilla, the
Court announced a new constitutional rule and applied it to the
defendant before it, but did not engage in a retroactivity analy-
sis. Later, in Chaidez v. U.S.,90 the Court expressly held that
the rule it announced in Padilla did not apply retroactively to
other cases on collateral review. Based on the Court’s actions
in Padilla and Chaidez, the court in Johnson reasoned that
the Court’s application of the Miller rule to Jackson was not
dispositive of its intent to apply the Miller rule to all cases on
collateral review.
                          (d) Resolution
   Under the Teague/Schriro retroactivity analysis, the distinc-
tion between substance and procedure is important. But how
the rule announced in Miller should be categorized is difficult,
because it does not neatly fall into the existing definitions of
either a procedural rule or a substantive rule.
   As other courts have noted, the Miller rule certainly contains
a procedural component, because it specifically requires that a
sentencer follow a certain process before imposing the sentence
of life imprisonment on a juvenile.91 And unlike the holdings
in Graham v. Florida92 and Roper v. Simmons,93 the Miller rule
does not categorically bar a specific punishment; a State may
still constitutionally sentence a juvenile to life imprisonment
without parole under Miller.

88	
      Teague, supra note 20.
89	
      Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284
      (2010).
90	
      Chaidez v. U.S., ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013).
91	
      See, In re Morgan, supra note 67; Tate, supra note 61; Chambers, supra
      note 65; Cunningham, supra note 63.
92	
      Graham, supra note 2.
93	
      Roper, supra note 13.
    Nebraska Advance Sheets
340	287 NEBRASKA REPORTS



   But at the same time, the Miller rule includes a substantive
component. Miller did not simply change what entity consid-
ered the same facts.94 And Miller did not simply announce a
rule that was designed to enhance accuracy in sentencing.95
Instead, Miller held that a sentencer must consider specific,
individualized factors before handing down a sentence of life
imprisonment without parole for a juvenile. Effectively, then,
Miller required a sentencer of a juvenile to consider new facts,
i.e., mitigation evidence, before imposing a life imprison-
ment sentence with no possibility of parole. In our view, this
approaches what the Court itself held in Schriro would amount
to a new substantive rule: The Court made a certain fact (con-
sideration of mitigating evidence) essential to imposition of a
sentence of life imprisonment without parole.96 In other words,
it imposed a new requirement as to what a sentencer must
consider in order to constitutionally impose life imprisonment
without parole on a juvenile.
   And Miller itself recognized that when mitigating evi-
dence is considered, a sentence of life imprisonment with-
out parole for a juvenile should be rare. This is consistent
with the underlying logic of Miller, based on Graham, that
“‘[i]t is difficult even for expert psychologists to differentiate
between the juvenile offender whose crime reflects unfortu-
nate yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption.’”97 In essence,
Miller “amounts to something close to a de facto substan-
tive holding,”98 because it sets forth the general rule that life
imprisonment without parole should not be imposed upon a
juvenile except in the rarest of cases where that juvenile can-
not be distinguished from an adult based on diminished capac-
ity or culpability.

94	
      Compare Ring, supra note 29.
95	
      Compare Caldwell, supra note 59.
96	
      Schriro, supra note 28.
97	
      Graham, supra note 2, 560 U.S. at 73, quoting Roper, supra note 13.
98	
      The Supreme Court, 2011 Term—Leading Cases, 126 Harv. L. Rev. 276,
      286 (2012).
                     Nebraska Advance Sheets
	                          STATE v. MANTICH	341
	                          Cite as 287 Neb. 320

   The substantive aspect of the Miller rule is also evident
when considered in light of the effect of Miller on existing
Nebraska law. In response to Miller, the Nebraska Legislature
amended the sentencing laws for juveniles convicted of first
degree murder.99 The amendments changed the possible pen-
alty for a juvenile convicted of first degree murder from a
mandatory sentence of life imprisonment to a “maximum sen-
tence of not greater than life imprisonment and a minimum
sentence of not less than forty years’ imprisonment.”100 The
Legislature also mandated that in determining the sentence
for a juvenile convicted of first degree murder, the sentenc-
ing judge “shall consider mitigating factors which led to the
commission of the offense.”101 A juvenile may submit any
mitigating factors to the sentencer, including, but not lim-
ited to, age at the time of the offense, degree of impetuosity,
family and community environment, ability to appreciate the
risks and consequences of the conduct, intellectual capac-
ity, and the results of a mental health evaluation.102 We view
these as substantive changes to Nebraska law and require-
ments that sentencers consider new facts prior to sentencing
a juvenile convicted of first degree murder. Most specifically,
the fact that Miller required Nebraska to change its substan-
tive punishment for the crime of first degree murder when
committed by a juvenile from a mandatory sentence of life
imprisonment to a sentence of 40 years’ to life imprisonment
demonstrates the rule announced in Miller is a substantive
change in the law.
   Moreover, the entire rationale of Miller is that when a
sentencing scheme fails to give a sentencer a choice between
life imprisonment without parole and something lesser, the
scheme is necessarily cruel and unusual. Here, it is undis-
puted that Mantich’s sentencer was denied that choice, and it

99	
    2013 Neb. Laws, L.B. 44 (codified at Neb. Rev. Stat. § 28-105.02 (Supp.
    2013)).
100	
    § 28-105.02(1).
101	
    § 28-105.02(2).
102	
    Id.
    Nebraska Advance Sheets
342	287 NEBRASKA REPORTS



is the absence of that choice that makes the Miller rule more
substantive than procedural. Further, we agree that the Miller
rule is entirely substantive when viewed as Massachusetts,
Mississippi, and Illinois have—as a categorical ban on the
imposition of a mandatory sentence of life imprisonment with-
out parole for juveniles.103
   We also find it noteworthy that the Court applied the rule
announced in Miller to Jackson, who was before the Court
on collateral review. Years ago, the Court stated that it would
not announce or apply a new constitutional rule in a case
before it on collateral review unless that rule would apply to
all defendants on collateral review.104 The Court specifically
adopted this policy in order to ensure that justice is adminis-
tered evenhandedly.105 Although we recognize that the Court
has strayed from this policy on one recent occasion,106 we
are not inclined to refuse to apply the rule announced in
Miller to a defendant before us on collateral review when
the Court has already applied the rule to a defendant before
it on collateral review. Evenhanded administration of justice
is carried out only if Mantich, like Jackson, is entitled to the
benefit of the new rule announced in Miller.107 As noted by
the Supreme Court of Iowa, any other result would be “‘ter-
ribly unfair.’”108
   [5] Because the rule announced in Miller is more substan-
tive than procedural and because the Court has already applied
that rule to a case on collateral review, we conclude that the
rule announced in Miller applies retroactively to Mantich.
Mantich’s life imprisonment sentence must be vacated, and the
cause remanded for resentencing under § 28-105.02.

103	
    See, Diatchenko, supra note 75; Jones, supra note 74; Morfin, supra
    note 71.
104	
    Penry, supra note 42; Teague, supra note 20.
105	
    Id.
106	
    See Padilla, supra note 89.
107	
    See Diatchenko, supra note 75.
108	
    Ragland, supra note 76, 836 N.W.2d at 117, quoting Chemerinsky, supra
    note 77.
                         Nebraska Advance Sheets
	                              STATE v. MANTICH	343
	                              Cite as 287 Neb. 320

                        2. Other Claims
   In Mantich’s original appeal, he argued that his sentence
of life imprisonment without parole was categorically invalid
under Graham v. Florida.109 Graham held that a juvenile con-
victed of a nonhomicide offense cannot be sentenced to life
imprisonment without parole. Mantich invites us to extend this
holding to a juvenile convicted of felony murder.
   Because we find Mantich is entitled to be resentenced under
the dictates of Miller, we do not reach this argument in this
appeal. If Mantich, on remand, is resentenced to life impris-
onment with no minimum term which permits parole eligi-
bility, he may raise the Graham argument in an appeal from
that sentence.
   Likewise, in view of our disposition, we need not reach
Mantich’s claim that his counsel was ineffective in failing to
assert an Eighth Amendment challenge at his original sentenc-
ing and on direct appeal.

                     V. CONCLUSION
  The rule announced in Miller applies retroactively to
Mantich. We remand the cause with directions to grant post-
conviction relief by vacating his life imprisonment sentence
and resentencing him pursuant to § 28-105.02.110
	Sentence vacated, and cause
	                              remanded for resentencing.

109	
       Graham, supra note 2.
110	
       See Castaneda, supra note 19.

   Cassel, J., dissenting.
   I respectfully dissent. First, I believe the rule from Miller v.
Alabama1 is a procedural rule that should not be applied retro-
actively on collateral review. Second, I would find Mantich’s
other claimed errors to be without merit. Thus, I would affirm
the decision of the district court.

 1	
       Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407
       (2012).
    Nebraska Advance Sheets
344	287 NEBRASKA REPORTS



                    RETROACTIVITY OF
                     MILLER V. ALABAMA
   As the majority observed, the rule announced in Miller does
not fall conveniently into the existing definitions of either a
procedural rule or a substantive rule. But I believe the better
approach would be to join the majority of jurisdictions that
have ruled on this issue and conclude that the rule announced
in Miller is a procedural one.2
   Unlike the rules announced in Graham v. Florida3 and
Roper v. Simmons,4 Miller did not categorically bar a spe-
cific punishment. The Miller Court specifically noted that
its decision “mandate[d] only that a sentencer follow a cer-
tain process—considering an offender’s youth and attendant
characteristics—before imposing a particular penalty.”5 Miller
simply does not fall into the narrow category of a substan-
tive rule, because no juvenile sentenced to life imprisonment
without parole in Nebraska “faces a punishment that the law
cannot impose upon him.”6 Although the process by which a
juvenile may be sentenced to life imprisonment without parole
now changes based upon Miller, the ultimate sentence of life
imprisonment without parole for a juvenile is still a legitimate
sentence. The U.S. Supreme Court has never indicated that
anything less than a full categorical ban on a sentence may be


 2	
      See, In re Morgan, 717 F.3d 1186 (11th Cir. 2013) (en banc); Holland v.
      Hobbs, No. 5:12CV00463-SWW-JJV, 2013 WL 6332731 (E.D. Ark. Dec.
      5, 2013); Johnson v. Ponton, No. 3:13-CV-404, 2013 WL 5663068 (E.D.
      Va. Oct. 16, 2013) (memorandum opinion); Geter v. State, 115 So. 3d 375
      (Fla. App. 2012); State v. Tate, No. 2012-OK-2763, 2013 WL 5912118
      (La. Nov. 5, 2013); People v. Carp, 298 Mich. App. 472, 828 N.W.2d
      685 (2012); Chambers v. State, 831 N.W.2d 311 (Minn. 2013); Com. v.
      Cunningham, 81 A.3d 1 (Pa. 2013); Craig v. Cain, No. 12-30035, 2013
      WL 69128 (5th Cir. Jan. 4, 2013) (unpublished opinion).
 3	
      Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825
      (2010).
 4	
      Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
 5	
      Miller, supra note 1, 132 S. Ct. at 2471.
 6	
      Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519, 159 L. Ed. 2d
      442 (2004).
                         Nebraska Advance Sheets
	                              STATE v. MANTICH	345
	                              Cite as 287 Neb. 320

a new substantive rule, and in my view, we should decline to
do so in the first instance.
   I am not persuaded that the U.S. Supreme Court established
a precedent of retroactive application of the Miller rule sim-
ply by applying the rule to a defendant before it on collateral
review. A new rule is not made retroactive to cases on col-
lateral review unless the Court holds it to be retroactive.7 And
a state can waive the Teague v. Lane8 retroactivity bar by not
raising it.9 The Court likely did not address the retroactivity
issue in Miller because the State of Arkansas did not argue
that any new rule announced would not apply to Jackson, who
was before the Court on collateral review. I do not believe
that we should interpret silence as an affirmative holding that
the Miller rule is to apply retroactively to defendants on col-
lateral review. Further, I find it persuasive that the Court has
recently demonstrated in Padilla v. Kentucky10 and Chaidez
v. U.S.11 that its announcement of a new constitutional rule
in a case before it on collateral review is not a determina-
tion of whether that rule should apply to all cases on collat-
eral review.
   In my view, the rule announced in Miller is not a “‘“water-
shed rule[] of criminal procedure” implicating the fundamental
fairness and accuracy of the criminal proceeding.’”12 To qualify
as a watershed rule, a new rule must both be necessary to
prevent an impermissibly large risk of an inaccurate convic-
tion and alter our understanding of the bedrock procedural
principles essential to the fairness of a proceeding.13 The Court
has repeatedly emphasized that the watershed exception is

 7	
      Tyler v. Cain, 533 U.S. 656, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001).
 8	
      Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).
 9	
      Schiro v. Farley, 510 U.S. 222, 114 S. Ct. 783, 127 L. Ed. 2d 47 (1994).
10	
      Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284
      (2010).
11	
      Chaidez v. U.S., ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013).
12	
      Schriro, supra note 6, 542 U.S. at 355.
13	
      Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173, 167 L. Ed. 2d 1
      (2007).
    Nebraska Advance Sheets
346	287 NEBRASKA REPORTS



extremely narrow and, since Teague, has yet to find a new rule
that fits within the exception.14 The only case that has ever sat-
isfied this high threshold is Gideon v. Wainwright,15 in which
the Court held that counsel must be appointed for any indigent
defendant charged with a felony.
   The rule announced in Miller relates only to the sentenc-
ing stage of a criminal proceeding and, thus, cannot be said
to be necessary to prevent an impermissibly large risk of an
inaccurate conviction. In addition, it is not a rule announcing
a “previously unrecognized bedrock procedural element that
is essential to the fairness of a proceeding.”16 While the rule
announced in Miller was important, it did not effect a sweep-
ing change comparable to Gideon. These reasons further sup-
port not applying the rule announced in Miller retroactively to
Mantich on collateral review.
   Our judicial process favors the finality of judgments. As
noted by the majority, Mantich’s life imprisonment sentence
was imposed and became final long before the decision in
Miller was announced. There is an important interest in the
finality of judgments that must be respected. I agree with the
assessment of another court that “applying Miller retroactively
‘would undermine the perceived and actual finality of criminal
judgments and would consume immense judicial resources
without any corresponding benefit to the accuracy or reliability
of the [underlying criminal case].’”17
   At least to a certain degree, some of the minority of courts
addressing whether the Miller decision was substantive or
procedural have relied upon perceptions of fairness between
those whose direct appeals were still pending and those whose
cases had already been finally determined. This is a danger-
ous expansion of the power of judges, because it places no
principled limit upon the scope of judicial power. While the
distinction between procedural and substantive may be difficult

14	
      Id. (citing cases).
15	
      Gideon v. Wainright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).
16	
      Whorton, supra note 13, 549 U.S. at 421.
17	
      Geter, supra note 2, 115 So. 3d at 383-84.
                        Nebraska Advance Sheets
	                             STATE v. MANTICH	347
	                             Cite as 287 Neb. 320

to apply, it affords a principled basis for decision. If a judge
allows his or her perceptions of fairness to intrude, the decision
ceases to be an application of law and becomes an application
of the judge’s personal biases and preferences. In my view,
the existing legal framework drives the answer to the question
before this court and dictates that the change is procedural. As
a judge, my role goes no further.

                        OTHER CLAIMS
                  Graham v. Florida Argument
   In his original appeal, Mantich argued that his sentence of
life imprisonment without parole was categorically invalid
under Graham v. Florida.18 Graham held that a juvenile con-
victed of a nonhomicide offense cannot be sentenced to life
imprisonment without parole. Mantich asked us to extend this
holding to a juvenile convicted of felony murder. I would find
that Mantich’s postconviction claim based on Graham is not
procedurally barred.
   A motion for postconviction relief cannot be used to secure
review of issues which were or could have been litigated on
direct appeal, no matter how those issues may be phrased or
rephrased.19 Graham was decided in 2010, long after this court
affirmed Mantich’s conviction and life imprisonment sentence
for first degree murder. Graham was the first case in which the
U.S. Supreme Court imposed a categorical bar on life impris-
onment sentences for a specific class of offenders. Mantich
could not have asserted his Graham claim at trial or on direct
appeal, because the Eighth Amendment jurisprudence at that
time did not support a categorical bar on life imprisonment
sentences.20 Therefore, it is not procedurally barred and its
merits can be addressed.
   The issue decided by the U.S. Supreme Court in Graham
was “whether the Constitution permits a juvenile offender to
be sentenced to life in prison without parole for a nonhomicide

18	
      Graham, supra note 3.
19	
      State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).
20	
      See State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000).
    Nebraska Advance Sheets
348	287 NEBRASKA REPORTS



crime.”21 The defendant was sentenced to life imprisonment,
which carried no possibility of release except through execu-
tive clemency.22 The Court held, as a matter of first impression,
that “for a juvenile offender who did not commit homicide
the Eighth Amendment forbids the sentence of life without
parole.”23 The Court specifically limited its holding to “only
those juvenile offenders sentenced to life without parole solely
for a nonhomicide offense.”24 The Court distinguished homi-
cide cases, noting:
      There is a line “between homicide and other serious
      violent offenses against the individual.” . . . Serious non-
      homicide crimes “may be devastating in their harm . . .
      but ‘in terms of moral depravity and of the injury to the
      person and to the public,’ . . . they cannot be compared to
      murder in their ‘severity and irrevocability.’” . . . This is
      because “[l]ife is over for the victim of the murderer,” but
      for the victim of even a very serious nonhomicide crime,
      “life . . . is not over and normally is not beyond repair.”
      . . . Although an offense like robbery or rape is “a serious
      crime deserving serious punishment,” . . . those crimes
      differ from homicide crimes in a moral sense.
          It follows that, when compared to an adult murderer,
      a juvenile offender who did not kill or intend to kill
      has a twice diminished moral culpability. The age of
      the offender and the nature of the crime each bear on
      the analysis.25
   We have considered the scope of Graham in one prior
case. State v. Golka26 involved a postconviction appeal by an
offender who had been sentenced to two consecutive terms
of life imprisonment for two first degree murders committed
when he was 17 years old. His postconviction motion alleged

21	
      Graham, supra note 3, 560 U.S. at 52-53.
22	
      Graham, supra note 3.
23	
      Id., 560 U.S. at 74.
24	
      Id., 560 U.S. at 63.
25	
      Id., 560 U.S. at 69 (citations omitted).
26	
      State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011).
                         Nebraska Advance Sheets
	                              STATE v. MANTICH	349
	                              Cite as 287 Neb. 320

that the sentences constituted cruel and unusual punishment
in violation of the 8th and 14th Amendments to the U.S.
Constitution and article I, § 9, of the Nebraska Constitution.
That claim was rejected by the district court, and Graham
was decided during the pendency of the appeal. In affirming
the denial of postconviction relief, we agreed with two other
state courts which had held that Graham does not preclude
life imprisonment sentences for juvenile offenders convicted
of murder.27
   Mantich argues that his crime must be considered a “‘non-
homicide’” offense under Graham because there was no find-
ing at trial or sentencing that he killed or intended to kill
Thompson.28 He argues that he was at most a “minor par-
ticipant” in the murder.29 He bases this argument primarily
upon Enmund v. Florida30 and Tison v. Arizona,31 both of
which were appeals from death sentences. In Enmund, the
U.S. Supreme Court held that the Eighth Amendment did not
permit imposing “the death penalty on [a person] who aids
and abets a felony in the course of which a murder is com-
mitted by others but who does not himself kill, attempt to kill,
or intend that a killing take place or that lethal force will be
employed.”32 In Tison, the Court held that “major participation
in the felony committed, combined with reckless indifference
to human life, is sufficient to satisfy the Enmund culpabil-
ity requirement” for imposition of the death penalty.33 Both
Enmund and Tison addressed the issue of when a murderer’s
conduct was sufficiently culpable to warrant imposition of the
maximum penalty of death. Although the Court in Graham

27	
      Id. (citing Jackson v. Norris, 2011 Ark. 49, 378 S.W.3d 103 (2011),
      reversed, Miller, supra note 1; State v. Andrews, 329 S.W.3d 369 (Mo.
      2010)).
28	
      Brief for appellant at 22.
29	
      Id. at 21.
30	
      Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140
      (1982).
31	
      Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987).
32	
      Enmund, supra note 30, 458 U.S. at 797.
33	
      Tison, supra note 31, 481 U.S. at 158.
    Nebraska Advance Sheets
350	287 NEBRASKA REPORTS



cited Enmund in support of its reasoning with respect to rela-
tive culpability, I do not interpret that citation as permitting a
homicide to be considered a “nonhomicide” offense for pur-
poses of sentencing, as Mantich urges.
   Admittedly, the reasoning in Miller v. Alabama34 offers
some support for Mantich’s argument. As noted, in Miller, the
Court reasoned that because individualized sentencing was
required for adults in cases involving imposition of the death
penalty, the greatest possible penalty imposed upon an adult,
individualized sentencing was also required for juveniles in
cases involving imposition of the penalty of life imprisonment
without parole, the greatest possible penalty imposed upon
a juvenile. Mantich argues that because the Court equated
death for adults with life imprisonment for juveniles in one
context, all of the Court’s previous requirements for constitu-
tional imposition of the death penalty on adults now apply to
constitutional imposition of life imprisonment without parole
on juveniles. Particularly, he contends that the Enmund/Tison
rationale is now directly applicable to him and that he cannot
be sentenced to the greatest possible punishment available
because there has been no showing that he killed or intended
to kill.
   The record contains some evidence concerning intent to kill.
During Mantich’s sentencing hearing, the court addressed the
question of who pulled the trigger and stated:
      You admitted on two separate occasions separated by
      a month that you in fact fired the shot which killed
      . . . Thompson.
          The admission you made directly after the incident and
      particularly coupled with the admission to law enforce-
      ment personnel a month later with thoughts, feelings,
      and corroboration which would go along with the murder
      of someone certainly strongly suggests that you in fact
      pulled the trigger. The murder of . . . Thompson at point-
      blank range by putting a gun against his head and firing it
      is brutal beyond description and cold. . . .


34	
      Miller, supra note 1.
                        Nebraska Advance Sheets
	                             STATE v. MANTICH	351
	                             Cite as 287 Neb. 320

        You murdered a blameless person . . . Mantich. One
     who had every right and expectation to lead his life with-
     out being subjected to a mindless, violent death carried
     out by you.
And on direct appeal, with regard to the insufficient evidence
claim, we wrote:
        The facts taken in the light most favorable to the State
     are such that a finder of fact could conclude beyond a
     reasonable doubt that Mantich committed murder while
     aiding and abetting in the kidnapping and robbery of
     Thompson and used a firearm to commit a felony. There
     is sufficient evidence to demonstrate that Mantich aided
     and abetted the kidnapping and robbery perpetrated
     against Thompson. When Eona and Brunzo left the party
     and returned with the stolen van, Mantich joined them
     over the strong objections and physical restraint of his
     girl friend. Mantich testified that he heard Eona and
     Brunzo tell Thompson they were going to kill him, and
     Mantich watched as Eona and Brunzo repeatedly jabbed
     Thompson in the head with the barrels of their guns.
     Mantich’s statement to police was sufficient to establish
     that he was handed a gun, placed the gun against the back
     of Thompson’s head, and pulled the trigger.
        Even if the jury was uncertain as to whether Mantich
     actually shot Thompson, the evidence supports the jury’s
     finding that Mantich aided and abetted in the kidnap-
     ping and robbery of Thompson. It was undisputed that
     Thompson was killed by someone in the van while the
     group was kidnapping, robbing, and terrorizing him. The
     group forcibly restrained Thompson with the express
     intent of robbing and terrorizing him. The evidence shows
     that Mantich encouraged these activities and participated
     in the verbal terrorization of Thompson. This evidence is
     sufficient to convict Mantich of felony murder and use of
     a weapon to commit a felony.35


35	
      State v. Mantich, 249 Neb. 311, 328-29, 543 N.W.2d 181, 193-94 (1996).
    Nebraska Advance Sheets
352	287 NEBRASKA REPORTS



   Even if the record did not demonstrate that Mantich either
killed or intended to kill, I would not extend the Court’s hold-
ing in Graham to a juvenile convicted of felony murder. At the
time Mantich committed his crime, the sentence in Nebraska
for first degree murder was either mandatory life imprison-
ment or death.36 Graham held that the Eighth Amendment
prohibited sentencing a juvenile to the maximum penalty of
life imprisonment without parole for the nonhomicide offense
which the juvenile committed. That is a far different issue
than whether the Eighth Amendment prohibits imposing the
minimum sentence of life imprisonment without parole on
a juvenile who committed first degree murder. As the Court
noted in Graham, nonhomicide crimes “differ from homicide
crimes in a moral sense.”37 I would urge that we join the other
jurisdictions which have held that Graham has no application
to a juvenile convicted of a homicide offense under a felony
murder theory.38
                       Unconstitutionally
                      Disproportionate Claim
   Unlike Mantich’s argument based on Graham, his claim
that his life imprisonment sentence was unconstitutionally dis-
proportionate to his crime could have been raised at the time
of sentencing and on direct appeal. The constitutional prin-
ciple of proportionality was well established at the time of
Mantich’s first degree murder conviction.39 Because the issue
was not raised at sentencing or on direct appeal, it is proce-
durally barred in this postconviction proceeding. However, I
will address the merits of the issue in the context of Mantich’s
claim that his trial and appellate counsel was ineffective in fail-
ing to raise it.

36	
      See Neb. Rev. Stat. §§ 28-105 (Reissue 1989) and 28-303 (Reissue 1995).
37	
      Graham, supra note 3, 560 U.S. at 69.
38	
      See, Arrington v. State, 113 So. 3d 20 (Fla. App. 2012); Jackson, supra note
      27; Bell v. State, 2011 Ark. 379, 2011 WL 4396975 (2011) (unpublished
      opinion).
39	
      See, Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637
      (1983); Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793
      (1910).
                         Nebraska Advance Sheets
	                              STATE v. MANTICH	353
	                              Cite as 287 Neb. 320

                  Ineffectiveness of Trial and
                       Appellate Counsel
   When a defendant was represented both at trial and on direct
appeal by the same lawyers, generally speaking, the defend­
ant’s first opportunity to assert an ineffective assistance of trial
counsel claim is in a motion for postconviction relief.40 That is
the circumstance here. The record shows that Mantich was rep-
resented at trial and on direct appeal by the same attorney. He
alleged in his postconviction motion that his counsel was inef-
fective in failing to argue at sentencing and on direct appeal
that a life imprisonment sentence would constitute cruel and
unusual punishment.
   In order to establish a right to postconviction relief based on
a claim of ineffective assistance of counsel, the defendant has
the burden, in accordance with Strickland v. Washington,41 to
show that counsel’s performance was deficient and that coun-
sel’s deficient performance prejudiced the defense.42 In order
to show prejudice, the defendant must demonstrate a reason-
able probability that but for counsel’s deficient performance,
the result of the proceeding would have been different.43 The
two prongs of this test, deficient performance and prejudice,
may be addressed in either order.44 The entire ineffectiveness
analysis is viewed with the strong presumption that coun-
sel’s actions were reasonable.45 Defense counsel is not inef-
fective for failing to raise an argument that has no merit.46
Accordingly, I will examine the merit of Mantich’s claim that
his life imprisonment sentence is unconstitutionally dispropor-
tionate to his crime.
   The Eighth Amendment “prohibits not only barbaric pun-
ishments, but also sentences that are disproportionate to the

40	
      State v. McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004).
41	
      Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
      (1984).
42	
      State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
43	
      Id.
44	
      Id.
45	
      State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008).
46	
      State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010).
    Nebraska Advance Sheets
354	287 NEBRASKA REPORTS



crime committed.”47 The U.S. Supreme Court has character-
ized this as a “‘narrow proportionality principle’”48 which
“‘does not require strict proportionality between crime and
sentence,’”49 but, rather, “‘forbids only extreme sentences that
are “grossly disproportionate” to the crime.’”50 The Court has
identified objective criteria which should guide an Eighth
Amendment proportionality analysis, including “(i) the gravity
of the offense and the harshness of the penalty; (ii) the sen-
tences imposed on other criminals in the same jurisdiction; and
(iii) the sentences imposed for commission of the same crime
in other jurisdictions.”51
    But “intrajurisdictional and interjurisdictional analyses are
appropriate only in the rare case in which a threshold com-
parison of the crime committed and the sentence imposed
leads to an inference of gross disproportionality.”52 Courts
must give “‘substantial deference to the broad authority that
legislatures necessarily possess in determining the types and
limits of punishments for crimes,’” bearing in mind that the
Eighth Amendment “does not mandate adoption of any one
penological theory” and “marked divergences both in under-
lying theories of sentencing and in the length of prescribed
prison terms are the inevitable, often beneficial, result of the
federal structure.”53 The “culpability of the offender” is also a
factor in the analysis.54 In its most recent application of these

47	
      Solem, supra note 39, 463 U.S. at 284.
48	
      Ewing v. California, 538 U.S. 11, 20, 24, 123 S. Ct. 1179, 155 L. Ed. 2d
      108 (2003), quoting Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680,
      115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring in part and concurring
      in judgment). See, also, Solem, supra note 39.
49	
      Ewing, supra note 48, 538 U.S. at 23, quoting Harmelin, supra note 48
      (Kennedy, J., concurring in part and concurring in judgment).
50	
      Id.
51	
      Solem, supra note 39, 463 U.S. at 292.
52	
      Harmelin, supra note 48, 501 U.S. at 1005 (Kennedy, J., concurring in part
      and concurring in judgment). See, also, Ewing, supra note 48.
53	
      Harmelin, supra note 48, 501 U.S. at 999 (Kennedy, J., concurring in part
      and concurring in judgment).
54	
      Solem, supra note 39, 463 U.S. at 292.
                        Nebraska Advance Sheets
	                             STATE v. MANTICH	355
	                             Cite as 287 Neb. 320

principles to a sentence of imprisonment, the U.S. Supreme
Court in Ewing v. California55 upheld a sentence of 25
years’ to life imprisonment for grand theft under California’s
“three strikes law,” concluding that it was not “‘the rare
case in which a threshold comparison of the crime commit-
ted and the sentence imposed leads to an inference of gross
disproportionality.’”56
   The same conclusion is inescapable here. First degree mur-
der is the most serious criminal offense defined by Nebraska
law. “[I]n terms of moral depravity and of the injury to the
person and to the public,” other serious crimes do “not com-
pare with murder.”57 Mantich received the minimum sentence
which can be given to one convicted of first degree murder.
Although he seeks to minimize his personal involvement in the
events which led to the death of Thompson, we noted on direct
appeal that “Mantich’s statement to police was sufficient to
establish that he was handed a gun, placed the gun against the
back of Thompson’s head, and pulled the trigger.”58 We further
noted that the group robbed, terrorized, and forcibly restrained
Thompson and that “Mantich encouraged these activities and
participated in the verbal terrorization.”59
   Mantich cites several state court decisions from other
jurisdictions in support of his Eighth Amendment argument.
But those cases are either distinguishable on the facts or oth-
erwise unpersuasive. Considering the gravity of the offense
and all of the relevant facts and circumstances, notwith-
standing Mantich’s youth, there is no basis for a “threshold
inference”60 that his sentence was grossly disproportionate
to his crime. Because Mantich’s Eighth Amendment claim is

55	
      Ewing, supra note 48.
56	
      Id., 538 U.S. at 30, quoting Harmelin, supra note 48 (Kennedy, J.,
      concurring in part and concurring in judgment).
57	
      Coker v. Georgia, 433 U.S. 584, 598, 97 S. Ct. 2861, 53 L. Ed. 2d 982
      (1977). See, also, Graham, supra note 3.
58	
      Mantich, supra note 35, 249 Neb. at 328, 543 N.W.2d at 194.
59	
      Id. at 329, 543 N.W.2d at 194.
60	
      See Graham, supra note 3, 560 U.S. at 93 (Roberts, J., concurring in
      judgment).
    Nebraska Advance Sheets
356	287 NEBRASKA REPORTS



without merit under either alternative formulation, his coun-
sel was not ineffective in not asserting it at sentencing or on
direct appeal.
                          CONCLUSION
   To summarize, in my view, the rule announced in Miller is
procedural and does not apply to Mantich on collateral review.
I would find that Graham has no application to Mantich’s
sentence of life imprisonment for first degree felony murder,
a homicide, and that Mantich’s alternative claim that his sen-
tence was grossly disproportionate to his crime is procedurally
barred. Because these claims are without merit, Mantich’s trial
and appellate counsel was not ineffective in failing to assert
them. And because the files and records conclusively show that
Mantich’s motion for postconviction relief is without merit, the
district court did not err in denying the requested relief without
conducting an evidentiary hearing. I would affirm the decision
of the district court.
   Heavican, C.J., joins in this dissent.



                     State of Nebraska, appellee, v.
                      Eric A. Ramirez, appellant.
                                   ___ N.W.2d ___

                       Filed February 7, 2014.    No. S-11-486.

 1.	 Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
     admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
     discretion is involved only when the rules make such discretion a factor in deter-
     mining admissibility.
 2.	 Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
     commit the evidentiary question at issue to the discretion of the trial court, an
     appellate court reviews the admissibility of evidence for an abuse of discretion.
 3.	 Judgments: Words and Phrases. An abuse of discretion occurs when a trial
     court’s decision is based upon reasons that are untenable or unreasonable or if its
     action is clearly against justice or conscience, reason, and evidence.
 4.	 Trial: Evidence: Appeal and Error. An appellate court reviews the trial court’s
     conclusions with regard to evidentiary foundation and witness qualification for an
     abuse of discretion.
