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to proceed with the hearing of a forcible entry and detainer
action until it is clearly established that the question to be
determined is one of title.32 Because upon trial, the evidence
did not show that the action concerned a present question of
title, the county court had jurisdiction to issue the writ of res-
titution. The Marcuzzos’ second assignment of error also lacks
merit. We find no plain error appearing on the record.
                       CONCLUSION
   Because the Marcuzzos failed to offer evidence of a ques-
tion of title until after that question had been resolved,
the county court properly exercised jurisdiction. We find no
plain error appearing on the record. We therefore affirm the
judgment of the district court, which affirmed the county
court’s judgment.
                                                  Affirmed.

32	
      See Pettit, supra note 18.




                     State of Nebraska, appellee, v.
                    Niccole A. Wetherell, appellant.
                                    ___ N.W.2d ___

                       Filed October 24, 2014.     No. S-13-805.

 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.	 Constitutional Law: Sentences. Whether a sentence violates the Eighth
     Amendment’s cruel and unusual punishment clause presents a question of law.
 3.	 Judgments: Appeal and Error. When reviewing a question of law, an appellate
     court reaches a conclusion independent of the lower court’s ruling.
 4.	 Postconviction: Right to Counsel: Appeal and Error. Failure to appoint
     counsel in postconviction proceedings is not error in the absence of an abuse
     of discretion.
 5.	 Statutes: Appeal and Error. Statutory interpretation is a question of law, which
     an appellate court resolves independently of the trial court.
 6.	 Postconviction: Constitutional Law: Proof. A court must grant an eviden-
     tiary hearing to resolve the claims in a postconviction motion when the motion
                            Nebraska Advance Sheets
	                                 STATE v. WETHERELL	313
	                                  Cite as 289 Neb. 312

        contains factual allegations which, if proved, constitute an infringement of the
        defendant’s rights under the Nebraska or federal Constitution.
 7.	    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.
 8.	    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.
 9.	    Postconviction: Right to Counsel. There is no federal or state constitutional
        right to an attorney in state postconviction proceedings.
10.	    ____: ____. Under the Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001
        et seq. (Reissue 2008 & Cum. Supp. 2012), it is within the discretion of the trial
        court whether to appoint counsel to represent the defendant.
11.	    Postconviction: Justiciable Issues: Right to Counsel: Appeal and Error.
        When the defendant’s motion 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 motion 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 Sarpy County: William
B. Zastera, Judge. Affirmed.
       Niccole A. Wetherell, pro se.
  Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
       Miller-Lerman, J.
                      NATURE OF CASE
   In 1999, Niccole A. Wetherell pled no contest to first degree
murder, a Class IA felony, and a three-judge panel imposed a
mandatory sentence of life imprisonment. Wetherell was 18
years old at the time of the offense. Her conviction and sen-
tence were affirmed by this court on direct appeal. The denial
of her first postconviction motion was later affirmed. Wetherell
filed a second motion for postconviction relief pro se, and this
is the motion which gives rise to this appeal.
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   In her motion, Wetherell claimed that because she was a
“minor” as defined under certain Nebraska law at the time
of her offense, her mandatory life sentence without the pos-
sibility of parole is cruel and unusual and, therefore, uncon-
stitutional under Miller v. Alabama, ___ U.S. ___, 132 S. Ct.
2455, 183 L. Ed. 2d 407 (2012) (Miller). Miller generally
held that mandatory life sentences without the possibility of
parole for persons under 18 at the time they committed their
offense were unconstitutional. For relief, Wetherell sought
a resentencing.
   The district court for Sarpy County determined that because
Wetherell was not under the age of 18 at the time of her
offense, Miller does not apply to her case. The court denied
her motion without conducting an evidentiary hearing and
without appointing counsel. Wetherell appeals. Because we
determine that Wetherell has failed to allege any facts which,
if proved, constitute an infringement of her constitutional
rights and the records and files show she is entitled to no
relief, we affirm.
                    STATEMENT OF FACTS
   On March 24, 1999, Wetherell pled no contest to first degree
murder, a Class IA felony. The offense for which Wetherell
was charged occurred in September 1998. Wetherell was born
in July 1980. She was 18 years old when the offense occurred.
A three-judge panel rejected the death penalty and imposed a
mandatory sentence of life imprisonment.
   Wetherell’s conviction and sentence were affirmed by this
court on direct appeal. See State v. Wetherell, 259 Neb. 341,
609 N.W.2d 672 (2000). The sole error Wetherell assigned in
her direct appeal was that the district court erred when it did
not permit her to withdraw her plea prior to sentencing.
   On August 1, 2007, Wetherell filed her first motion for post-
conviction relief. The district court denied the motion without
an evidentiary hearing, and the denial was affirmed by this
court on January 31, 2008, in case No. S-07-939.
   Wetherell later filed a second motion for postconviction
relief pro se. This is the motion which gives rise to this appeal.
In her second motion for postconviction relief, Wetherell
                  Nebraska Advance Sheets
	                      STATE v. WETHERELL	315
	                       Cite as 289 Neb. 312

alleged that she was 18 years old at the time of the offense
but claimed that under Neb. Rev. Stat. § 43-2101 (Cum.
Supp. 2012), she was still a “minor.” Section 43-2101 states,
inter alia, that “[a]ll persons under nineteen years of age are
declared to be minors . . . .” Based on her “minor” status at the
time of the offense, Wetherell contends that her mandatory life
sentence is unconstitutional under Miller and that she is enti-
tled to be resentenced under 2013 Neb. Laws, L.B. 44, which
generally deals with sentencing juveniles convicted of Class IA
felonies who were “under the age of eighteen years” when
they committed the offense. See Neb. Rev. Stat. § 28-105.02
(Supp. 2013).
   The district court denied Wetherell’s second motion for
postconviction relief without an evidentiary hearing and with-
out appointing counsel. The district court noted that by their
terms, both Miller and L.B. 44 apply to offenders who were
under the age of 18 years at the time of the offense. Because
it is undisputed that Wetherell was 18 years old at the time
she committed the offense, the district court concluded that
Miller and the relief afforded by L.B. 44 do not apply to her
case. Therefore, the court determined that Wetherell failed to
establish a basis for postconviction relief, and it denied her
motion without an evidentiary hearing and without appoint-
ing counsel.
   Wetherell appeals.

                 ASSIGNMENTS OF ERROR
   Wetherell claims, restated, that the district court erred when
it (1) denied her motion for postconviction relief, because
under Miller, her life sentence was imposed in violation of the
cruel and unusual punishment provisions of the Nebraska and
U.S. Constitutions, and (2) failed to appoint counsel to repre-
sent her on her second motion for postconviction relief.

                  STANDARDS OF REVIEW
   [1] 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
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316	289 NEBRASKA REPORTS



affirmatively show that the defendant is entitled to no relief.
State v. Dragon, 287 Neb. 519, 843 N.W.2d 618 (2014).
   [2,3] Whether a sentence violates the Eighth Amendment’s
cruel and unusual punishment clause presents a question of law.
State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 (2014), cert.
denied No. 13-1348, 2014 WL 1831466 (U.S. Oct. 6, 2014).
When reviewing a question of law, an appellate court reaches a
conclusion independent of the lower court’s ruling. Id.
   [4] Failure to appoint counsel in postconviction proceedings
is not error in the absence of an abuse of discretion. State v.
McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
   [5] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. State
v. Kudlacz, 288 Neb. 656, 850 N.W.2d 755 (2014).
                            ANALYSIS
First Assignment of Error:
Resentencing Under Miller.
   In her first assignment of error, Wetherell claims that the
district court erred when it denied her motion for postconvic-
tion relief without an evidentiary hearing. Wetherell contends
that because she was a “minor” under Nebraska law at the time
of her offense, Miller applies to her case. Wetherell asserts
that her life sentence is in violation of the cruel and unusual
punishment provisions of the Nebraska and U.S. Constitutions
and that she is entitled to resentencing. We find no merit to this
assignment of error.
Applicable Law.
   In Miller, the U.S. Supreme Court held that “mandatory
life without parole for those under the age of 18 at the time
of their crimes violates the Eighth Amendment’s prohibition
on ‘cruel and unusual punishments.’” 132 S. Ct. at 2460. In
State v. Castaneda, 287 Neb. 289, 842 N.W.2d 740 (2014),
we observed that life imprisonment sentences imposed on
juveniles in Nebraska for first degree murder prior to Miller
were mandatory sentences and were effectively life imprison-
ment without parole. See, also, State v. Ramirez, 287 Neb. 356,
842 N.W.2d 694 (2014). Applying our observation regarding
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	                     STATE v. WETHERELL	317
	                      Cite as 289 Neb. 312

mandatory life imprisonment sentences under Nebraska’s sen-
tencing scheme, Wetherell’s sentence was tantamount to life
imprisonment without the possibility of parole.
   In Mantich, supra, this court concluded that the U.S.
Supreme Court’s holding in Miller was a substantive change
to the law that applies retroactively on collateral review.
Therefore, because this court has stated that Miller applies
retroactively on collateral review, Miller may be considered
in connection with Wetherell’s second motion for postconvic-
tion relief.
   In response to Miller, the Nebraska Legislature passed, and
the Governor approved, L.B. 44, which amended state law to
“‘change penalty provisions with respect to Class IA felonies
committed by persons under eighteen years of age [and] to
change parole procedures with respect to offenses committed
by persons under eighteen years of age.’” State v. Castaneda,
287 Neb. at 314, 842 N.W.2d at 759.
   Section 2 of L.B. 44 was codified at § 28-105.02, and
provides:
         (1) Notwithstanding any other provision of law, the
      penalty for any person convicted of a Class IA felony for
      an offense committed when such person was under the
      age of eighteen years shall be a maximum sentence of not
      greater than life imprisonment and a minimum sentence
      of not less than forty years’ imprisonment.
         (2) In determining the sentence of a convicted person
      under subsection (1) of this section, the court shall con-
      sider mitigating factors which led to the commission of
      the offense. The convicted person may submit mitigating
      factors to the court, including, but not limited to:
         (a) The convicted person’s age at the time of the
      offense;
         (b) The impetuosity of the convicted person;
         (c) The convicted person’s family and community
      environment;
         (d) The convicted person’s ability to appreciate the
      risks and consequences of the conduct;
         (e) The convicted person’s intellectual capacity; and
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318	289 NEBRASKA REPORTS



        (f) The outcome of a comprehensive mental health
     evaluation of the convicted person conducted by an ado-
     lescent mental health professional licensed in this state.
     The evaluation shall include, but not be limited to, inter-
     views with the convicted person’s family in order to learn
     about the convicted person’s prenatal history, develop-
     mental history, medical history, substance abuse treatment
     history, if any, social history, and psychological history.
(Emphasis supplied.)
  Section 3 of L.B. 44 was codified at Neb. Rev. Stat.
§ 83-1,110.04 (Supp. 2013), and generally provides that an
“offender who was under the age of eighteen years when
he or she committed the offense,” if the offender is denied
parole, shall be considered for parole annually after the denial.
(Emphasis supplied.)
Postconviction Motion
Not Time Barred.
   As an initial matter, the State has suggested that Wetherell’s
postconviction motion is time barred. We disagree. Given the
not unreasonable, albeit unpersuasive, assertion by Wetherell
that Miller applies, we determine that Wetherell’s second post-
conviction motion, to the extent it relies on Miller as made
retroactive by State v. Mantich, 287 Neb. 320, 842 N.W.2d
716 (2014), cert. denied No. 13-1348, 2014 WL 1831466
(U.S. Oct. 6, 2014), is not time barred. The statutory limita-
tion periods regarding postconviction motions are found at
Neb. Rev. Stat. § 29-3001(4) (Cum. Supp. 2012) and provide
that a 1-year limitation period applies to the filing of a motion
for postconviction relief and that such period begins to run
on the later of one of five dates. As relevant to this case,
§ 29-3001(4)(d) provides:
      A one-year period of limitation shall apply to the filing of
      a verified motion for postconviction relief. The one-year
      limitation period shall run from the later of:
         ....
         . . . The date on which a constitutional claim asserted
      was initially recognized by the Supreme Court of the
      United States or the Nebraska Supreme Court, if the
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	                     STATE v. WETHERELL	319
	                      Cite as 289 Neb. 312

      newly recognized right has been made applicable retroac-
      tively to cases on postconviction collateral review[.]
Under Mantich, supra, decided in 2014, this court concluded
that the holding in Miller applies retroactively, and we there-
fore determine that Wetherell’s motion is not time barred.
Application of the Law.
   As stated above, Miller provides that “mandatory life with-
out parole for those under the age of 18 at the time of their
crimes violates the Eighth Amendment’s prohibition on ‘cruel
and unusual punishments.’” 132 S. Ct. at 2460 (emphasis
supplied). Section 28-105.02(1) provides in part that “the
penalty for any person convicted of a Class IA felony for an
offense committed when such person was under the age of
eighteen years shall be a maximum sentence of not greater
than life imprisonment and a minimum sentence of not less
than forty years’ imprisonment.” (Emphasis supplied.) See,
also, § 83-1,110.04. Thus, by their terms, both Miller and
§ 28-105.02 explicitly apply only to those persons who were
“under the age of eighteen years” when they committed
their offense.
   The language of Miller, “under the age of 18,” is clear.
132 S. Ct. at 2460. The holding in Miller applies to persons
who were “under the age of 18 at the time of their crimes”
and does not encompass persons such as Wetherell, who was
already 18 at the time of her crime. See id. The relief afforded
in Miller does not apply to Wetherell. We further observe that
Wetherell’s reliance on § 28-105.02(1) as a basis for resen-
tencing is misplaced. Statutory interpretation is a question of
law. State v. Kudlacz, 288 Neb. 656, 850 N.W.2d 755 (2014).
We give the language of § 28-105.02(1) its plain and ordinary
meaning. See Kudlacz, supra. Section 28-105.02(1) applies to
persons who stand convicted of a Class IA felony for an offense
committed when such person was “under the age of eighteen
years.” Wetherell factually was not under the age of 18 years at
the time of the offense, and she is not encompassed within the
provisions of § 28-105.02(1). We conclude that § 28-105.02(1)
does not apply to persons who committed the Class IA felony
offense when they were 18 years of age.
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   Wetherell concedes that she was 18 years old when she com-
mitted the offense for which she was convicted and acknowl-
edges that both Miller and § 28-105.02(1) refer to offenders
under the age of 18. She nevertheless contends that Miller
applies to her case, because under Nebraska law, she was a
“minor” at the time the offense was committed. Wetherell
refers us to Neb. Rev. Stat. § 43-2101 (Cum. Supp. 2012),
which states that “[a]ll persons under nineteen years of age
are declared to be minors . . . .” She also points to Neb. Rev.
Stat § 43-245 (Supp. 2013), which states that “[f]or purposes
of the Nebraska Juvenile Code, unless the context otherwise
requires: (1) [a]ge of majority means nineteen years of age
. . . (9) [j]uvenile means any person under the age of eight­
een.” Wetherell therefore asserts that because she was 18 and
a “minor” or a “juvenile” under various Nebraska statutes at
the time she committed her offense, Miller applies to her case.
She contends that the gist of Miller is directed to sentencing
of minors and juveniles and that pursuant to Miller, her life
sentence is unconstitutional and she should be resentenced by
applying § 28-105.02. We reject this argument.
   We recognize that as a general matter pursuant to § 43-2101,
all persons under age 19 are considered to be “minors” in
Nebraska. However, we stated in the controlling opinion
in State v. Johnson, 269 Neb. 507, 519, 695 N.W.2d 165,
175 (2005):
         We think it is a proper reading of the Nebraska
      Revised Statutes that § 43-2101 sets the age of major-
      ity and that, except where a statute references a specific
      age, § 43-2101 defines “minor” for general purposes.
      Where the word “minor” is used elsewhere in the statutes
      without further definition, it may be presumed to have
      the general meaning declared under § 43-2101. Where
      the Legislature wishes to provide a different definition
      or wishes to proscribe conduct based on an age other
      than the age of majority, the Legislature will explicitly
      do so . . . .
(Emphasis supplied.) See, also, § 43-245 (providing that
“unless the context otherwise requires: (1) [a]ge of majority
means nineteen years of age” (emphasis supplied)).
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	                      STATE v. WETHERELL	321
	                       Cite as 289 Neb. 312

   In the instant case, the Legislature has explicitly pro-
vided that the sentencing provisions in § 28-105.02 apply
to those persons who were under the age of 18 at the
time of their offenses. That is, the Legislature has provided
a specific quantifiable definition of age other than general
terms such as “majority,” “minority,” “minor,” or “juvenile.”
Therefore, the specific age that the Legislature has provided
in § 28-105.02(1) will apply, and not the general definition of
“minor” found in § 43-2101 as urged by Wetherell. Section
28-105.02 and our explanation are consistent with the U.S.
Supreme Court in Miller, which explicitly limited its holding
to those individuals who were under the age of 18 at the time
of their crimes.
   [6,7] Because Wetherell was undisputedly 18 years old
when she committed her offense, neither Miller nor resulting
resentencing under § 28-105.02 applies to her case. A court
must grant an evidentiary hearing to resolve the claims in a
postconviction motion when the motion contains factual alle-
gations which, if proved, constitute an infringement of the
defendant’s rights under the Nebraska or federal Constitution.
State v. Dragon, 287 Neb. 519, 843 N.W.2d 618 (2014). 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 evidentiary hearing. Id. Where there is no justi-
ciable issue, no hearing is required. Wetherell has failed to
allege any facts in her motion which, if proved, constitute an
infringement of her constitutional rights, and the records and
files show that she is entitled to no relief. Upon our de novo
review, we conclude that the district court did not err when it
denied Wetherell’s motion for postconviction relief without an
evidentiary hearing.
   [8] We note for completeness that to the extent that Wetherell
does not rely upon Miller and generally claims that her sen-
tence of life imprisonment without parole was unconstitu-
tionally disproportionate to her offense and violates the cruel
and unusual punishment provisions of the Nebraska and U.S.
Constitutions, we reject this argument. An appellate court will
not entertain a successive motion for postconviction relief
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unless the motion affirmatively shows on its face that the basis
relied upon for relief was not available at the time the mov-
ant filed the prior motion. State v. Watkins, 284 Neb. 742, 825
N.W.2d 403 (2012). Wetherell’s second motion for postcon-
viction relief does not affirmatively show on its face that her
claim that her sentence was unconstitutionally excessive, to the
extent it does not rely on Miller, was not available at the time
she filed her first motion for postconviction relief. As such, it
is procedurally barred.
Second Assignment of Error:
Appointment of Counsel.
   In her second assignment of error, Wetherell claims that the
district court erred when it failed to appoint counsel to repre-
sent her on her second motion for postconviction relief. We
conclude that because Wetherell’s second motion for postcon-
viction relief did not raise justiciable issues, the district court
did not abuse its discretion when it did not appoint counsel
prior to denying postconviction relief.
   [9] We have recognized that there is no federal or state con-
stitutional right to an attorney in state postconviction proceed-
ings. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
Therefore, a person seeking postconviction relief is not entitled
to appointment of counsel as a matter of right.
   [10,11] Instead, under the Nebraska Postconviction Act,
Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008 & Cum. Supp.
2012), it is within the discretion of the trial court whether to
appoint counsel to represent the defendant. State v. Phelps,
286 Neb. 89, 834 N.W.2d 786 (2013). When the defendant’s
motion presents a justiciable issue to the district court for post-
conviction determination, an indigent defendant is entitled to
the appointment of counsel. Id. Where the assigned errors in
the postconviction motion before the district court are either
procedurally 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. Id.
   The standards for determining whether discretion requires
appointment of counsel are similar to those applied when
                         Nebraska Advance Sheets
	                      IN RE INTEREST OF GABRIELLA H.	323
	                              Cite as 289 Neb. 323

determining whether an evidentiary hearing is warranted,
which are set forth above. As we have noted, Wetherell has not
alleged facts sufficient to entitle her to an evidentiary hearing
on her postconviction claim and the records and files show that
she is entitled to no relief. Wetherell has raised no justiciable
issue of law or fact, and therefore, the district court did not
abuse its discretion when it did not appoint counsel.
                         CONCLUSION
   The relief afforded in Miller and resulting resentencing
under § 28-105.02 apply to persons who were under the age of
18 at the time of their crimes and do not apply to Wetherell,
because she was 18 years old at the time of her offense. Upon
our de novo review, we determine that in her postconvic-
tion motion, Wetherell has failed to assert any facts which, if
proved, constitute an infringement of her constitutional rights,
and the records and files show she is entitled to no relief.
Therefore, the district court did not err when it denied her post-
conviction motion without an evidentiary hearing and without
appointing counsel.
                                                      Affirmed.



                     In   re I nterest of
                                      Gabriella H.,
                                  18 years of age.
                      a child under
     State   of   Nebraska, appellee, v. Ricardo R.,                appellant.
                                   ___ N.W.2d ___

                       Filed October 24, 2014.    No. S-13-900.

 1.	 Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
     de novo on the record and reaches its conclusions independently of the juvenile
     court’s findings.
 2.	 Parental Rights: Abandonment: Words and Phrases. For purposes of Neb.
     Rev. Stat. § 43-292(1) (Cum. Supp. 2012), “abandonment” is a parent’s intention-
     ally withholding from a child, without just cause or excuse, the parent’s presence,
     care, love, protection, maintenance, and the opportunity for the display of paren-
     tal affection for the child.
 3.	 Parent and Child. “Just cause or excuse” for a parent’s failure to maintain a
     relationship with a minor child has generally been confined to circumstances that
     are, at least in part, beyond the control of the parent.
