                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                     STATE V. MAGALLANES


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 STATE OF NEBRASKA, APPELLEE,
                                                V.

                             ALBERTO C. MAGALLANES, APPELLANT.


                             Filed March 31, 2015.    No. A-14-336.


       Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Reversed
and remanded with directions.
       Alberto C. Magallanes, pro se.
       Jon Bruning, Attorney General, and Nathan A. Liss for appellee.


       MOORE, Chief Judge, and IRWIN and RIEDMANN, Judges.
       MOORE, Chief Judge.
                                        INTRODUCTION
        Alberto C. Magallanes appeals from the order of the district court for Douglas County,
which denied his motion for postconviction relief without an evidentiary hearing. In doing so, the
court implicitly denied Magallanes’ pending motion for leave to amend his postconviction motion,
which was an abuse of its discretion. Accordingly, we reverse and remand to the district court with
directions to grant the motion for leave to amend. We also reverse the order of the district court
which denied Magallanes’ request for appointment of counsel based upon his original motion for
postconviction relief.
                                        BACKGROUND
       In 2011, Magallanes was convicted of possession with intent to deliver methamphetamine,
possession with intent to deliver cocaine, and two counts of failing to affix a drug tax stamp. He



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was sentenced to 20 to 40 years in prison on the possession counts, and 1 to 2 years in prison on
the drug tax stamp counts, with all terms running concurrently. His convictions on the possession
counts were affirmed on appeal, although the drug tax stamp convictions were reversed. See State
v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 2359,
185 L. Ed. 2d 1082 (2013).
        In December 2013, Magallanes mailed a verified motion for postconviction relief to the
district court, although it was inadvertently not filed by the clerk until February 6, 2014.
Magallanes also mailed a “Motion for Leave to Amend Motion for Postconviction Relief with
Extension of Time of (90) days” and a motion for appointment of counsel, which were not
file-stamped until February 12, 2014. The district court later confirmed that Magallanes’ pleadings
were received by the court on or about December 17, 2013.
        In his motion for leave to amend, Magallanes requested leave to amend the postconviction
motion if it was determined to be necessary upon further review of the record or by counsel in the
event Magallanes’ request for appointment of counsel was granted. Magallanes asserted that
because of the one-year statute of limitations under Neb. Rev. Stat. § 28-3001 (Reissue 2008) for
postconviction actions, it was necessary to file his motion without having time to “argue said
claims” and because of the very limited time allowed an inmate to prepare his motion.
        On December 17, 2013, the district court entered an order, granting Magallanes leave to
proceed in forma pauperis, denying his motion for appointment of counsel, and granting the State
45 days to file a response to the postconviction motion. The court specifically “[made] no ruling
on [Magallanes’] Motion for Leave to Amend Motion for Postconviction with Extension of Time
(90) days pending further hearing.”
        On March 28, 2014, the district court entered an order denying Magallanes’ postconviction
motion. The court, after reviewing the motion, the pleadings and evidence in the case, and the
State’s response to the motion, found that Magallanes failed to plead sufficient allegations
containing facts which, if true, would prove to be grounds for relief. The order made no mention
of the motion for leave to amend. Magallanes subsequently perfected his appeal to this court.
                                    ASSIGNMENTS OF ERROR
       Magallanes asserts, reordered, that the district court erred by (1) failing to consider and
rule upon his pending motion to amend and (2) denying his request for court-appointed counsel.
Magallanes also claims that he received ineffective assistance of counsel on direct appeal in several
regards.
                                     STANDARD OF REVIEW
        Deciding to grant or deny an amendment to a pleading is a matter entrusted to the discretion
of the trial court. State v. Burton, 282 Neb. 135, 802 N.W.2d 127 (2011). A judicial abuse of
discretion exists when a judge, within the effective limits of authorized judicial power, elects to
act or refrain from acting, but the selected option results in a decision which is untenable and
unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition
through a judicial system. State v. Hill, 288 Neb. 767, 851 N.W.2d 670 (2014).




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                                            ANALYSIS
Motion to Amend.
         The district court denied Magallanes’ motion for postconviction relief, however, the court
failed to specifically address Magallanes’ motion for leave to amend the postconviction motion.
Both parties agree that such failure requires reversal of the district court’s order. However, the
parties disagree about the import of such failure and the appropriate directions to be given by this
court upon remand. Magallanes requests that we remand the cause to the district court with
directions to grant him leave to amend his postconviction petition. The State argues that there is
no evidence that the district court ruled on--or even considered--Magallanes’ motion to amend, so
there is no ruling or decision to review. The State therefore maintains that the appropriate remedy
is for this court to instruct the district court to rule on the motion.
         Both parties refer to the cases of State v. Mata, 280 Neb. 849, 790 N.W.2d 716 (2010) and
Gonzalez v. Union Pacific R.R. Co., 282 Neb. 47, 803 N.W.2d 424 (2011) as instructive in this
case.
         State v. Mata, supra, also involved a denial of a defendant’s motion for postconviction
relief without an evidentiary hearing. On appeal, the defendant argued that the court should have
appointed counsel and allowed him to amend his postconviction motion. In Mata, the defendant’s
motion for leave to amend was argued at a preliminary hearing held to determine whether to grant
the request for counsel and to hold an evidentiary hearing. Following the hearing, the district court
denied the original postconviction motion without explicitly ruling on the request for leave to
amend. The court also denied the defendant’s request for appointment of counsel. On appeal, the
Nebraska Supreme Court considered the district court’s decision as a denial of the motion for leave
to amend and found that the district court abused its discretion in doing so. In reaching that
conclusion, the Supreme Court noted that the defendant had tried to explain the necessity for
amending his motion and that prejudice to the State justifying denial of leave to amend had not
been established. The Supreme Court reversed the district court’s judgment and remanded the
cause with directions to appoint counsel for Mata and grant him leave to amend.
         In Gonzalez v. Union Pacific, supra, the plaintiff asked for leave to amend her complaint
at a hearing on the defendant’s motion to dismiss. The district court dismissed the wrongful death
claim without expressly ruling on that request. On appeal, the Nebraska Supreme Court, after
finding an implicit denial of the request for leave to amend, noted Neb. Ct. R. Pldg. § 6-1115(a),
which provides that leave to amend a pleading “shall be freely given when justice so requires.”
The Court then observed that a district court’s denial of leave to amend pleadings is appropriate
only in those limited circumstances in which undue delay, bad faith on the part of the moving
party, futility of the amendment, or unfair prejudice to the nonmoving party can be demonstrated.
Gonzalez v. Union Pacific, supra. The Court found none of those factors present and further
observed that it is an abuse of discretion for the district court to dismiss a suit on the basis of the
original complaint without first considering and ruling on a pending motion to amend. Id.
Accordingly, the Court concluded that the district court had abused its discretion in not allowing
the plaintiff to amend her complaint.




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        In the case before us, there was no hearing before the district court at which the motion for
leave to amend was addressed. In fact, the record before us does not indicate that any hearings
with parties present were held before the district court prior to the court’s denial of the
postconviction motion; said denial being done solely upon the record from the underlying criminal
action and the postconviction pleadings of the parties. Nevertheless, the court was clearly aware
of the pending motion for leave to amend based upon its December 17, 2013 order in which it
explicitly withheld ruling on the motion pending the State’s response to the postconviction motion.
Thus, we conclude, as did the Supreme Court in Mata and Gonzalez, that the court’s failure to
explicitly rule on the motion for leave to amend when denying the postconviction motion
amounted to a denial of the motion for leave to amend.
        We next consider whether the district court abused its discretion in denying Magallanes’
motion for leave to amend his postconviction motion. Neb. Ct. R. Pldg. § 6-1115(a) states that a
party may amend “the party’s pleading once as a matter of course before a responsive pleading is
served or, if the pleading is one to which no responsive pleading is permitted, the party may amend
it within 30 days after it is served.” Here, Magallanes filed his motion for leave to amend
apparently at the same time as his postconviction motion. However, the court in its December 17,
2013 order granted the State 45 days to file a response to the postconviction motion and noted that
it was making no ruling on the motion for leave to amend, when, in actuality, Magallanes was free
to amend his motion without leave prior to the State’s responsive pleading being served.
Nevertheless, following the filing of the State’s responsive pleading, the court entered its order
denying the postconviction motion, and as we have determined, implicitly denying the motion for
leave to amend the motion.
        As noted above, Neb. Ct. R. Pldg. § 6-1115(a) further provides that leave to amend a
pleading “shall be freely given when justice so requires.” A district court’s denial of leave to amend
is appropriate only upon undue delay, bad faith on the part of the moving party, futility of the
amendment, or unfair prejudice to the nonmoving party. See Gonzalez v. Union Pacific R.R. Co.,
supra.
        In his motion for leave to amend, Magallanes alleged the circumstances necessitating leave
to amend; which in essence was that he (or his counsel if appointed) needed additional time to
review the record to determine whether additional claims needed to be addressed in his
postconviction motion, and that it was necessary to file the action before completing this review
due to the statute of limitations. A similar argument was presented by the defendant in State v.
Mata, supra. Magallanes also noted that as an inmate he was allowed limited time to prepare his
motion. There is nothing in the record on appeal showing prejudice to the State, nor does the State
argue any such prejudice. Under the circumstances of this case, it was an abuse of discretion for
the district court to deny Magallanes leave to amend his motion for postconviction relief.
Accordingly, we reverse the judgment and remand the cause with directions to grant him leave to
amend.
Request for Counsel.
       Magallanes asserts that the district court erred by denying his request for court-appointed
counsel. He argues that appointment of counsel is necessary in order to assist him in preparing his



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amended postconviction motion. Failure to appoint counsel in postconviction proceedings is not
error in the absence of an abuse of discretion. State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775
(2015). When the assigned errors in a postconviction petition before the district court contain no
justiciable issues of law or fact, it is not an abuse of discretion to fail to appoint counsel for an
indigent defendant. Id.
        Because we are allowing Magallanes the opportunity to file an amended postconviction
motion, we also reverse the district court’s order denying his request for appointment of counsel,
which order was based upon the allegations contained in Magallanes’ original postconviction
motion. The determination of whether the postconviction petition contains any justiciable issues
of law or fact as a predicate to appointment of counsel must be made based upon the allegations
in the amended postconviction motion.
Ineffective Assistance of Counsel.
        Magallanes asserts that he received ineffective assistance of counsel on direct appeal in
several regards. His assertions of ineffective assistance of counsel on direct appeal relate to the
allegations in his postconviction motion prior to any amendment. Because of our resolution of
Magallanes’ assignment of error with respect to his motion to amend his postconviction pleadings,
we need not address this assignment of error in the present appeal. An appellate court is not
obligated to engage in an analysis that is not needed to adjudicate the controversy before it. State
v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).
                                          CONCLUSION
        The district court abused its discretion in denying Magallanes’ motion for leave to amend
his postconviction motion. We therefore reverse the order of the district court denying Magallanes’
motion for postconviction relief and remand the cause to the district court with directions to grant
the motion for leave to amend. We also reverse the order of the district court which denied
Magallanes’ request for appointment of counsel based upon his original motion for postconviction
relief.
                                                      REVERSED AND REMANDED WITH DIRECTIONS.




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