                         Nebraska Advance Sheets
	                                 STATE v. PHELPS	89
	                                 Cite as 286 Neb. 89

                      State of Nebraska, appellee, v.
                        David C. Phelps, appellant.
                                    ___ N.W.2d ___

                        Filed June 14, 2013.     No. S-12-1021.

 1.	 Postconviction: Constitutional Law: Appeal and Error. In appeals from post­
      conviction proceedings, an appellate court reviews de novo a determination that
      the defendant failed to allege sufficient facts to demonstrate a violation of his or
      her constitutional rights or that the record and files affirmatively show that the
      defendant is entitled to no relief.
 2.	 Postconviction: Appeal and Error. Whether a claim raised in a postconviction
      proceeding is procedurally barred is a question of law.
 3.	 Judgments: Appeal and Error. When reviewing questions of law, an appellate
      court resolves the questions independently of the lower court’s conclusion.
 4.	 Postconviction. Postconviction proceedings are not a tool whereby a defendant
      can continue to bring successive motions for relief.
  5.	 ____. The need for finality in the criminal process requires that a defendant bring
      all claims for relief at the first opportunity.
 6.	 Postconviction: Appeal and Error. An appellate court will not entertain a suc­
      cessive motion for postconviction relief unless the motion affirmatively shows
      on its face that the basis relied upon for relief was not available at the time the
      movant filed the prior motion.
 7.	 Postconviction. The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et
      seq. (Reissue 2008 & Cum. Supp. 2012), provides that postconviction relief is
      available to a prisoner in custody under sentence who seeks to be released on the
      ground that there was a denial or infringement of his constitutional rights such
      that the judgment was void or voidable.
 8.	 Postconviction: Constitutional Law: Proof. In a motion for postconviction
      relief, the defendant must allege facts which, if proved, constitute a denial or
      violation of his or her rights under the U.S. or Nebraska Constitution, causing the
      judgment against the defendant to be void or voidable.
  9.	 ____: ____: ____. A court must grant an evidentiary hearing to resolve the claims
      in a postconviction motion when the motion contains factual allegations which, if
      proved, constitute an infringement of the defendant’s rights under the Nebraska
      or federal Constitution.
10.	 Postconviction: Proof. If a postconviction motion alleges only conclusions of
      fact or law, or if the records and files in the case affirmatively show that the
      defendant is entitled to no relief, the court is not required to grant an eviden­
      tiary hearing.
11.	 Postconviction: Motions for New Trial: Time: Evidence. A motion for postcon­
      viction relief cannot be used to obtain, outside of the 3-year time limitation under
      Neb. Rev. Stat. § 29-2103 (Reissue 2008), what is essentially a new trial based
      on newly discovered evidence.
12.	 Postconviction: Right to Counsel. Under the Nebraska Postconviction Act, it is
      within the discretion of the trial court as to whether to appoint counsel to repre­
      sent the defendant.
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13.	 Postconviction: Justiciable Issues: Right to Counsel: Appeal and Error.
     When the defendant’s petition presents a justiciable issue to the district court for
     postconviction determination, an indigent defendant is entitled to the appointment
     of counsel. Where the assigned errors in the postconviction petition before the
     district court are either procedurally barred or without merit, establishing that the
     postconviction proceeding contained no justiciable issue of law or fact, it is not
     an abuse of discretion to fail to appoint counsel for an indigent defendant.

  Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed.

  Melissa A. Wentling, Madison County Public Defender, and
Kyle Melia for appellant.

  Jon Bruning, Attorney General, and James D. Smith for
appellee.

  Wright, Connolly, Stephan, McCormack, and Cassel, JJ.,
and Irwin, Judge.

   Stephan, J.
   David C. Phelps appeals from an order finding his motion
for postconviction relief should be denied without an eviden­
tiary hearing. Because we conclude that Phelps’ motion failed
to allege sufficient facts which, if proved, would entitle him
to postconviction relief, we affirm the judgment of the dis­
trict court.

                       BACKGROUND
   Phelps was convicted of kidnapping in the 1987 disappear­
ance of 9-year-old Jill Cutshall, and he was sentenced to life
imprisonment. We affirmed his conviction and sentence in
1992.1 In 2012, Phelps filed the underlying motion for post­
conviction relief in the district court for Madison County.
The motion alleged that he had just recently learned of the
existence of newly discovered evidence in the form of a diary.
Phelps alleged that the diary had “disturbingly graphic detail
of the abduction, rape, and murder of four women at [a] farm
near Chambers, Nebraska,” and that Cutshall was one of the

 1	
      State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
                       Nebraska Advance Sheets
	                             STATE v. PHELPS	91
	                             Cite as 286 Neb. 89

four victims. Phelps alleged that the diary was in the posses­
sion of the Valley County Attorney or the Nebraska Attorney
General and that it was “only given to authorities” around
March 7.
   The district court denied postconviction relief. It reasoned
that Phelps had not alleged any facts related to the abduction,
rape, or murder of Cutshall and that thus, it was not neces­
sary to conduct an evidentiary hearing. The court also found
that to the extent Phelps’ motion sought a new trial, it was
improper because it was filed more than 3 years after the
verdict.2 In addition, the court found that the postconviction
motion was procedurally barred by Phelps’ two previous post­
conviction requests, which were both denied. Phelps filed this
timely appeal.

                 ASSIGNMENTS OF ERROR
   Phelps assigns as error the district court’s determination
that his postconviction motion was procedurally barred and
that it did not contain sufficiently specific factual allegations
to require an evidentiary hearing. He also assigns that the dis­
trict court abused its discretion in denying his request for the
appointment of postconviction counsel.

                   STANDARD OF REVIEW
   [1] In appeals from postconviction proceedings, an appellate
court reviews de novo a determination that the defendant failed
to allege sufficient facts to demonstrate a violation of his or her
constitutional rights or that the record and files affirmatively
show that the defendant is entitled to no relief.3
   [2,3] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law.4 When reviewing
questions of law, an appellate court resolves the questions inde­
pendently of the lower court’s conclusion.5

 2	
      Neb. Rev. Stat. §§ 29-2101(5) and 29-2103(4) (Reissue 2008).
 3	
      State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
 4	
      State v. Watkins, 284 Neb. 742, 825 N.W.2d 403 (2012); State v. Yos-
      Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
 5	
      Id.
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                           ANALYSIS
                        P rocedural Bar
   The first question before us is whether this postconviction
proceeding is procedurally barred. In 2009, Phelps filed his
first motion for postconviction relief. In 2010, the motion was
denied without an evidentiary hearing. In 2011, Phelps filed a
petition to vacate and set aside his sentence. The district court
treated this petition as a second motion for postconviction
relief and again denied relief without conducting an eviden­
tiary hearing.
   [4-6] Postconviction proceedings are not a tool whereby
a defendant can continue to bring successive motions for
relief.6 The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first oppor­
tunity.7 Thus, an appellate court will not entertain a suc­
cessive motion for postconviction relief unless the motion
affirmatively shows on its face that the basis relied upon
for relief was not available at the time the movant filed the
prior motion.8
   Phelps filed the postconviction motion at issue on August
9, 2012. In it, he alleged that he is entitled to relief based on
a diary that was first given to authorities in March. Because
Phelps’ motion affirmatively shows on its face that the ground
for relief could not have been asserted at the time of the prior
postconviction proceedings, the current proceeding is not pro­
cedurally barred. The district court erred in finding it was.

                   Sufficiency of Allegations
   [7,8] The next question is whether Phelps alleged sufficient
facts to entitle him to an evidentiary hearing on his postcon­
viction motion. The Nebraska Postconviction Act, Neb. Rev.
Stat. § 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2012),
provides that postconviction relief is available to a prisoner

 6	
      Hall v. State, 264 Neb. 151, 646 N.W.2d 572 (2002); State v. Ryan, 257
      Neb. 635, 601 N.W.2d 473 (1999).
 7	
      State v. Watkins, supra note 4; State v. Lotter, 278 Neb. 466, 771 N.W.2d
      551 (2009).
 8	
      State v. Watkins, supra note 4.
                        Nebraska Advance Sheets
	                               STATE v. PHELPS	93
	                               Cite as 286 Neb. 89

in custody under sentence who seeks to be released on the
ground that there was a denial or infringement of his consti­
tutional rights such that the judgment was void or voidable.9
Thus, in a motion for postconviction relief, the defendant
must allege facts which, if proved, constitute a denial or
violation of his or her rights under the U.S. or Nebraska
Constitution, causing the judgment against the defendant to
be void or voidable.10
    [9,10] A court must grant an evidentiary hearing to resolve
the claims in a postconviction motion when the motion
contains factual allegations which, if proved, constitute an
infringement of the defendant’s rights under the Nebraska
or federal Constitution.11 If a postconviction motion alleges
only conclusions of fact or law, or if the records and files
in the case affirmatively show that the defendant is entitled
to no relief, the court is not required to grant an eviden­
tiary hearing.12
    [11] Phelps alleged no factual basis on which a court could
conclude that his judgment of conviction was void or void­
able because of a violation of his constitutional rights at trial
or in the prosecution of his case. His allegations focus solely
upon the diary, which he characterizes as “newly discovered
evidence.” Phelps alleges that because the time period for
filing a motion for new trial based on newly discovered evi­
dence has elapsed, his only means of bringing the diary to the
court’s attention is through a motion for postconviction relief.
He is only partially correct. It is true that under § 29-2103, a
motion for new trial based upon newly discovered evidence in
a criminal case cannot be filed more than 3 years after the date
of the verdict. But we have held that a motion for postconvic­
tion relief cannot be used to obtain, outside of the 3-year time
limitation under § 29-2103, what is essentially a new trial

 9	
      State v. Molina, 279 Neb. 405, 778 N.W.2d 713 (2010); State v. York, 278
      Neb. 306, 770 N.W.2d 614 (2009).
10	
      State v. Gunther, 278 Neb. 173, 768 N.W.2d 453 (2009); State v. Jim, 275
      Neb. 481, 747 N.W.2d 410 (2008).
11	
      State v. Watkins, supra note 4.
12	
      Id.
   Nebraska Advance Sheets
94	286 NEBRASKA REPORTS



based on newly discovered evidence.13 Therefore, postcon­
viction is not a viable remedy for Phelps’ newly discovered
evidence claim.
   We have acknowledged the possibility that a postconvic­
tion motion asserting a persuasive claim of actual innocence
might allege a constitutional violation, in that such a claim
could arguably amount to a violation of a movant’s procedural
or substantive due process rights.14 However, in order to even
trigger a court’s consideration of whether continued incarcera­
tion could give rise to a constitutional claim that can be raised
in a postconviction motion, there must be “[a] strong demon­
stration of actual innocence” “because after a fair trial and con­
viction, a defendant’s presumption of innocence disappears.”15
Indeed, the U.S. Supreme Court has held that the threshold is
“extraordinarily high.”16
   In Herrera v. Collins,17 the Court concluded that this thresh­
old was not met by affidavits stating that another person had
committed the crime. The affidavits, which were made years
after the conviction, contained hearsay and inconsistencies.
Considering the affidavits in light of the evidence of the
defend­ nt’s guilt at trial, the Court concluded that “this show­
       a
ing of innocence falls far short of that which would have to be
made in order to trigger the sort of constitutional claim which
we have assumed, arguendo, to exist.”18
   We concluded that the threshold showing of actual inno­
cence had not been met in State v. Lotter.19 In that case, the
defendant sought postconviction relief based upon an affidavit
from a trial witness which was signed 14 years after the crime.

13	
      State v. Lotter, supra note 7. See, also, State v. El-Tabech, 259 Neb. 509,
      610 N.W.2d 737 (2000).
14	
      See, State v. Edwards, supra note 3. State v. Lotter, supra note 7. See, also,
      State v. El-Tabech, supra note 13 (Gerrard, J., concurring).
15	
      State v. Edwards, supra note 3, 284 Neb. at 401, 821 N.W.2d at 698.
16	
      Herrera v. Collins, 506 U.S. 390, 417, 113 S. Ct. 853, 122 L. Ed. 2d 203
      (1993).
17	
      Id.
18	
      Id., 506 U.S. at 418-19.
19	
      State v. Lotter, supra note 7.
                         Nebraska Advance Sheets
	                               STATE v. PHELPS	95
	                               Cite as 286 Neb. 89

In the affidavit, the witness recanted his trial testimony and
claimed that he, and not the defendant, had fired the fatal shots
in three murders. The witness had also been convicted of the
murders and was serving life sentences. We concluded that the
alleged recantation, when viewed in the context of the evidence
at trial, did not constitute a showing of actual innocence suf­
ficient to warrant an evidentiary hearing.
   We reach the same conclusion here. Like the defendants in
Herrera and Lotter, Phelps does not come before the court in
this postconviction case “as one who is ‘innocent,’ but, on the
contrary, as one who has been convicted by due process of
law.”20 Phelps’ postconviction claim that he was “wrongfully
convicted” is based entirely upon the unsworn diary, which he
alleges “will result in [his] exoneration.” Like the affidavits
in Herrera and Lotter, the diary surfaced many years after the
crime and resulting conviction. Phelps has not alleged any per­
sonal knowledge of the actual content of the diary or explained
in any detail how its contents would necessarily exonerate him
of the crime. His allegations are speculative and conclusory.
When viewed in light of the trial evidence, as summarized in
our opinion on direct appeal, Phelps’ allegations fall far short
of the “extraordinarily high” threshold showing of actual inno­
cence which he would be required to make before a court could
even consider whether his continued incarceration would give
rise to a constitutional claim. The district court did not err in
concluding that Phelps did not allege facts sufficient to neces­
sitate an evidentiary hearing.

                   Appointment of Counsel
   [12,13] Phelps also claims that the district court abused its
discretion in denying his request for the appointment of coun­
sel. Under the Nebraska Postconviction Act, it is within the
discretion of the trial court as to whether to appoint counsel
to represent the defendant.21 When the defendant’s petition
presents a justiciable issue to the district court for postcon­
viction determination, an indigent defendant is entitled to the

20	
      Herrera v. Collins, supra note 16, 506 U.S. at 399-400.
21	
      State v. Yos-Chiguil, supra note 4.
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96	286 NEBRASKA REPORTS



appointment of counsel.22 Where the assigned errors in the
postconviction petition before the district court are either pro­
cedurally barred or without merit, establishing that the post­
conviction proceeding contained no justiciable issue of law or
fact, it is not an abuse of discretion to fail to appoint counsel
for an indigent defendant.23
   As we have noted, Phelps has not alleged facts sufficient
to entitle him to an evidentiary hearing on his postconviction
claim, and thus has raised no justiciable issue of law or fact.
The district court did not abuse its discretion in declining to
appoint counsel.
                        CONCLUSION
   For the reasons discussed, we affirm the judgment of the
district court.
                                                Affirmed.
   Miller-Lerman, J., participating on briefs.
   Heavican, C.J., not participating.

22	
      Id.
23	
      Id.




       Timothy E. Fitzgerald, appellee and cross-appellant, v.
         Camille M. Fitzgerald, now known as Camille M.
             Fangmeier, appellant and cross-appellee.
                                   ___ N.W.2d ___

                       Filed June 14, 2013.    No. S-12-1049.

 1.	 Jurisdiction. The question of jurisdiction is a question of law.
 2.	 Default Judgments: Motions to Vacate: Appeal and Error. In reviewing a trial
     court’s action in vacating or refusing to vacate a default judgment, an appellate
     court will uphold and affirm the trial court’s action in the absence of an abuse
     of discretion.
 3.	 Modification of Decree: Child Custody: Final Orders: Appeal and Error.
     Ordinarily, an order modifying a dissolution decree to grant a permanent change
     of child custody would be final and appealable as an order affecting a substantial
     right made during a special proceeding.
