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02/28/2020 09:06 AM CST




                                                          - 753 -
                               Nebraska Supreme Court Advance Sheets
                                        304 Nebraska Reports
                                                    STATE v. TORRES
                                                    Cite as 304 Neb. 753




                                        State of Nebraska, appellee, v.
                                        Marco E. Torres, Jr., appellant.
                                                      ___ N.W.2d ___

                                           Filed January 3, 2020.   No. S-19-276.

                 1. Postconviction: Constitutional Law: Appeal and Error. 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.
                 2. Postconviction: Appeal and Error. Appeals of postconviction pro-
                    ceedings will be reviewed independently if they involve a question
                    of law.

                 Appeal from the District Court for Hall County: James D.
               Livingston, Judge, Retired. Affirmed.
                    Marco E. Torres, Jr., pro se.
                 Douglas J. Peterson, Attorney General, and James D. Smith,
               Solicitor General, for appellee.
                 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
               and Papik, JJ.
                  Miller-Lerman, J.
                                     NATURE OF CASE
                  Marco E. Torres, Jr., appeals from the order of the district
               court for Hall County which denied his third motion for post-
               conviction relief without an evidentiary hearing. Torres asserts
               that the Legislature’s statute providing for the repeal of the
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         Nebraska Supreme Court Advance Sheets
                  304 Nebraska Reports
                        STATE v. TORRES
                        Cite as 304 Neb. 753

death penalty, 2015 Neb. Laws, L.B. 268, went into effect,
thereby changing his death sentence to life imprisonment.
Torres further asserts that the rejection of L.B. 268 by public
referendum reimposed a death sentence, that the referendum
was constitutionally impermissible in a variety of ways, and
that he was harmed thereby. We find no merit to Torres’ claims
and affirm the order of the district court.

                    STATEMENT OF FACTS
   In 2009, a jury found Torres guilty of two counts of first
degree murder and other felony offenses. He was sentenced to
death for each of the murders and sentenced to prison terms for
the other felonies. We affirmed his convictions and sentences
on direct appeal. State v. Torres, 283 Neb. 142, 812 N.W.2d
213 (2012).
   Torres first moved for postconviction relief in 2013, raising
claims of prosecutorial misconduct and ineffective assistance
of counsel. The district court denied postconviction relief after
conducting an evidentiary hearing. We affirmed in State v.
Torres, 295 Neb. 830, 894 N.W.2d 191 (2017).
   In his second postconviction proceeding, filed on June 14,
2017, Torres claimed that his death sentences were unconsti-
tutional under Hurst v. Florida, ___ U.S. ___, 136 S. Ct. 616,
193 L. Ed. 2d 504 (2016), and Johnson v. U.S., ___ U.S. ___,
135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015). The district court
found that Torres’ motion for postconviction relief was time
barred under the 1-year limitations period of Neb. Rev. Stat.
§ 29-3001(4) (Reissue 2016) and denied relief without con-
ducting an evidentiary hearing. We affirmed in State v. Torres,
300 Neb. 694, 915 N.W.2d 596 (2018).
   Torres filed a third postconviction proceeding on December
4, 2017. It is the denial of relief from the third postconviction
action which gives rise to this appeal. In his third postconvic-
tion motion, Torres generally alleged that he was entitled to
relief based on the proposition that L.B. 268 changed his sen-
tence from the death penalty to life imprisonment and the 2016
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          Nebraska Supreme Court Advance Sheets
                   304 Nebraska Reports
                         STATE v. TORRES
                         Cite as 304 Neb. 753

public referendum which “reject[ed]” L.B. 268 changed it back
to a death sentence. Neb. Const. art. III, § 3.
   Torres specifically alleged that the referendum reimposed
the death penalty on him and that such imposition was cruel
and unusual punishment, violated due process, constituted an
unconstitutional bill of attainder that targeted the individuals
on death row, and violated separation of powers. The district
court rejected Torres’ claims based on the insufficiency of
allegations in the motion and denied the third postconviction
motion without an evidentiary hearing. Torres appeals.
                   ASSIGNMENTS OF ERROR
   Torres contends, summarized and restated, that (1) the dis-
trict court’s analysis regarding the powers of the Legislature
to enact sentencing laws was flawed and (2) the referendum
process and result amounted to imposition of cruel and unusual
punishment, violated due process, constituted an impermissible
bill of attainder, and violated separation of powers.
   Because our analysis differs from that of the district court
and eclipses Torres’ arguments regarding the powers of the
Legislature to enact sentencing statutes, it is not necessary to
consider Torres’ first assignment of error.
                   STANDARDS OF REVIEW
   [1,2] In appeals from postconviction proceedings, an appel-
late 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 affirma-
tively show that the defendant is entitled to no relief. State v.
Allen, 301 Neb. 560, 919 N.W.2d 500 (2018). Appeals of post-
conviction proceedings will be reviewed independently if they
involve a question of law. See State v. Thieszen, 295 Neb. 293,
887 N.W.2d 871 (2016).
                           ANALYSIS
   As an initial matter, we recognize that the State has suggested
that Torres’ current postconviction motion is procedurally
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          Nebraska Supreme Court Advance Sheets
                   304 Nebraska Reports
                         STATE v. TORRES
                         Cite as 304 Neb. 753

barred. Although there may be merit to this argument, as we
recognized in Sandoval v. Ricketts, 302 Neb. 138, 922 N.W.2d
222 (2019), a postconviction action may be a suitable pro-
cedure to examine the claims that are central to this death
penalty case, and we therefore proceed to consideration of
the merits.
   We have reviewed Torres’ motion for postconviction relief,
and although our reasoning differs from that of the district
court, we agree with the determination that Torres has failed to
allege sufficient facts to demonstrate a violation of his consti-
tutional rights. See State v. Allen, supra. The allegations assert
that certain constitutional guarantees were violated; however,
we have recently considered and rejected at length the essential
substance of each of Torres’ allegations. See, State v. Mata,
ante p. 326, 934 N.W.2d 475 (2019); State v. Jenkins, 303 Neb.
676, 931 N.W.2d 851 (2019).
   The principal but flawed premise for Torres’ constitutional
claims is that L.B. 268 went into effect, thereby changing his
death sentence to life imprisonment, and that the successful
referendum reimposed the death penalty. In State v. Jenkins, we
concluded that “the filing of petitions on August 26, 2015—
prior to the effective date of L.B. 268—suspended [L.B. 268’s]
operation until Nebraskans effectively rejected the bill by vot-
ing to repeal it. . . . L.B. 268 never went into effect . . . .” 303
Neb. at 710-11, 931 N.W.2d at 879.
   In State v. Mata, we described the process as follows:
         In May 2015, the Nebraska Legislature passed 2015
      Neb. Laws, L.B. 268, which abolished the death penalty
      in Nebraska, and then overrode the Governor’s veto of
      the bill. Within L.B. 268, the Legislature provided that
      “in any criminal proceeding in which the death penalty
      has been imposed but not carried out prior to the effec-
      tive date of this act, such penalty shall be changed to life
      imprisonment.” The Legislature adjourned sine die on
      May 29. Because L.B. 268 did not contain an emergency
      clause, it was to take effect on August 30.
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         Nebraska Supreme Court Advance Sheets
                  304 Nebraska Reports
                       STATE v. TORRES
                       Cite as 304 Neb. 753

         Following the passage of L.B. 268, opponents of the
      bill sponsored a referendum petition to repeal it. On
      August 26, 2015, the opponents filed with the Nebraska
      Secretary of State signatures of approximately 166,000
      Nebraskans in support of the referendum. On October
      16, the Secretary of State certified the validity of suf-
      ficient signatures. Enough signatures were verified to
      suspend the operation of L.B. 268 until the referendum
      was approved or rejected by the electors at the upcoming
      election. During the November 2016 election, the refer-
      endum passed and L.B. 268 was repealed, that is, in the
      language of the Constitution, the act of the Legislature
      was “‘reject[ed].’”
Ante at 331-32, 934 N.W.2d at 480. See, also, Neb. Const. art.
III, § 3; State v. Jenkins, supra.
   As we addressed in our analysis of comparable claims in
State v. Mata, the essential substance of claims based on cruel
and unusual punishment, due process, and bill of attainder
which assert that L.B. 268 changed a death sentence to life
imprisonment fails “because L.B. 268 was suspended and
no such changes in his sentence occurred.” Ante at 340, 934
N.W.2d at 485.
   Torres contends that the anxiety created by the potential
modification of a sentence is cruel and unusual punishment.
However, we have concluded that such potential does not rise
to an Eighth Amendment violation. See State v. Mata, supra.
Accordingly, we reject this claim.
   Torres also contends that his due process rights were vio-
lated when the successful referendum “reinstat[ed] the capital
sentences en masse.” Brief for appellant at 26. He claims he
was denied the benefits of individualized sentencing. However,
as we have explained, no resentencing occurred, and therefore
this argument fails.
   In a similar manner, Torres’ assertion that the rejection
of L.B. 268 by referendum was essentially a bill of attain-
der which was directed at him also fails. Torres specifically
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         Nebraska Supreme Court Advance Sheets
                  304 Nebraska Reports
                        STATE v. TORRES
                        Cite as 304 Neb. 753

claims that the “repeal of LB 268 by referendum sentenced
. . . Torres to death.” Brief for appellant at 31. As we have
explained, Torres’ death sentence was not suspended and the
imposition of the death penalty was not a direct consequence
of the referendum.
   Finally, to the extent that Torres’ claim is based on a viola-
tion of separation of powers, we addressed and rejected this
claim in State v. Mata, ante p. 326, 343, 934 N.W.2d 475, 487
(2019), in which we concluded that the claim fails “because the
result of the referendum is not invalidated even if such actions
[of the Governor and other executive officers in the referendum
process] were constitutionally improper.” The remedy is not
invalidation of the referendum, but instead removal from “the
violating position.” Id. at 344, 934 N.W.2d at 487.
                         CONCLUSION
   We have reviewed de novo the district court’s determination
that Torres failed to allege sufficient facts that demonstrate a
violation of his constitutional rights and find no error in this
determination. Accordingly, we affirm the district court’s order
which denied postconviction relief.
                                                     Affirmed.
   Freudenberg, J., not participating.
