Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2019 08:07 AM CDT




                                                         - 133 -
                                  Nebraska Supreme Court A dvance Sheets
                                          304 Nebraska R eports
                                                   STATE v. KOCH
                                                  Cite as 304 Neb. 133




                        State of Nebraska, appellee and cross-appellant, v.
                          Edward D. Koch, appellant and cross-appellee.
                                                    ___ N.W.2d ___

                                        Filed September 27, 2019.   No. S-18-971.

                 1. Limitations of Actions. If the facts in a case are undisputed, the issue
                    as to when the statute of limitations begins to run is a question of law.
                 2. Appeal and Error. When reviewing a question of law, an appellate court
                    resolves the question independently of the lower court’s conclusion.
                 3. Postconviction: Final Orders: Appeal and Error. Within a postcon-
                    viction proceeding, an order granting an evidentiary hearing on some
                    issues and denying a hearing on others is a final, appealable order as
                    to the claims denied without a hearing. It is appealable because an
                    order overruling a motion for postconviction relief as to a claim is a
                    “final judgment” as to such claim under Neb. Rev. Stat. § 29-3002
                    (Reissue 2016).
                 4. Postconviction: Pleadings: Time. Neb. Rev. Stat. § 29-3001(4) (Reissue
                    2016) of the Nebraska Postconviction Act contains a 1-year time limit
                    for filing a verified motion for postconviction relief, which runs from
                    one of four triggering events or August 27, 2011, whichever is later.
                 5. Postconviction: Limitations of Actions: Words and Phrases: Appeal
                    and Error. The issuance of a mandate by a Nebraska appellate court is
                    a definitive determination of the “conclusion of a direct appeal,” and the
                    “date the judgment of conviction became final,” for purposes of Neb.
                    Rev. Stat. § 29-3001(4)(a) (Reissue 2016).

                 Appeal from the District Court for Cass County: Michael A.
               Smith, Judge. Affirmed.
                    Cameron Kroeger, of Berry Law Firm, for appellant.
                 Douglas J. Peterson, Attorney General, Erin E. Tangeman,
               and Maureen Larsen, Senior Certified Law Student, for appellee.
                                - 134 -
             Nebraska Supreme Court A dvance Sheets
                     304 Nebraska R eports
                           STATE v. KOCH
                          Cite as 304 Neb. 133

  Miller-Lerman, Cassel, Stacy, and Papik, JJ., and Bishop,
Judge.
   Stacy, J.
   Edward D. Koch appeals from an order of the Cass County
District Court dismissing his motion for postconviction relief
after an evidentiary hearing. The State cross-appeals, arguing
the district court erred in granting an evidentiary hearing on a
postconviction claim that was time barred. We affirm the dis-
missal of the postconviction motion.
                       I. BACKGROUND
   In 2014, Koch was charged with two counts of manslaughter
in violation of Neb. Rev. Stat. § 28-305 (Reissue 2008). He
eventually pled no contest to both counts as charged, and he
was sentenced to consecutive terms of 15 to 20 years in prison
for each conviction.
   Koch filed a direct appeal, represented by the same attorney.
The Nebraska Court of Appeals affirmed Koch’s conviction
and sentence in a memorandum opinion filed May 24, 2016.1
The Court of Appeals issued its mandate to the Cass County
District Court on June 28.
   The record shows the mandate was filed by the clerk of the
district court on July 21, 2016, and a few days later, on July
25, the district court entered judgment in accordance with the
mandate. An amended judgment on the mandate was entered
July 28 to correct a typographical error.
   On July 19, 2017, Koch filed a verified motion for post-
conviction relief. The motion, which was prepared and filed
by newly retained counsel, alleged that Koch’s trial counsel
had provided ineffective assistance in four respects. The State
moved to deny postconviction relief without an evidentiary
hearing, arguing, among other things, the motion was time
barred. In response, Koch argued that his motion was timely

1
    State v. Koch, No. A-15-959, 2016 WL 3083135 (Neb. App. May 24,
    2016) (selected for posting to court website).
                                   - 135 -
              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                              STATE v. KOCH
                             Cite as 304 Neb. 133

under Neb. Rev. Stat. § 29-3001(4)(a) (Reissue 2016), because
it was filed within 1 year of the date on which the Court of
Appeals’ mandate had been filed in the district court.
   In an order entered November 2, 2017, the district court
agreed with Koch on the issue of timeliness. It noted that under
§ 29-3001(4)(a), a postconviction motion must be filed within
1 year of “‘the conclusion of a direct appeal.’” The district
court reasoned “the issuance of an appellate opinion is not
necessarily the final step in the appellate process, and that issu-
ance and receipt of the mandate is also a part of that process.”
Applying this reasoning, the district court found Koch’s direct
appeal concluded on July 21, 2016, the date on which the
Court of Appeals’ mandate was filed in the district court, and
thus concluded Koch’s postconviction motion was timely filed
within 1 year of that date.
   The district court then found Koch was entitled to an
evidentiary hearing on one of his four claims of ineffective
assist­
      ance of counsel. It found the other three claims were
either procedurally barred or insufficiently pled, and dismissed
them. Neither Koch nor the State appealed the November 2,
2017, order.
   An evidentiary hearing was held on the remaining claim,
and the district court found Koch had failed to show his trial
counsel performed deficiently. In an order entered September
18, 2018, the court therefore dismissed Koch’s motion for post-
conviction relief.
   Koch filed a timely appeal, and the State cross-appealed. We
moved the appeal to our docket on our own motion.2

               II. ASSIGNMENTS OF ERROR
   Koch assigns, restated, that the district court erred in (1)
finding he was not entitled to an evidentiary hearing on three
of his four postconviction claims and (2) denying his remain-
ing postconviction claim after an evidentiary hearing.

2
    See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
                                  - 136 -
              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                             STATE v. KOCH
                            Cite as 304 Neb. 133

  In its cross-appeal, the State assigns, restated, that the district
court erred in granting an evidentiary hearing because Koch’s
postconviction motion was time barred under § 29-3001(4)(a).
                III. STANDARD OF REVIEW
   [1,2] If the facts in a case are undisputed, the issue as
to when the statute of limitations begins to run is a ques-
tion of law.3 When reviewing a question of law, an appellate
court resolves the question independently of the lower court’s
conclusion.4
                         IV. ANALYSIS
   On cross-appeal, the State argues the district court erred in
granting an evidentiary hearing on one of Koch’s ineffective
assistance claims, rather than dismissing Koch’s postconvic-
tion motion as untimely. Because we find this issue disposi-
tive, we address it first. Before doing so, however, we pause
to address Koch’s argument that the State’s cross-appeal is not
properly before us.
                      1. State’s Cross-A ppeal
                        Properly Before Us
   Koch argues the State’s cross-appeal should not be con-
sidered for two reasons. First, he argues the timeliness ruling
being challenged on cross-appeal was part of the district court’s
order of November 2, 2017, and the State did not timely appeal
from that order. Second, Koch argues the State did not timely
file its appellate brief raising the cross-appeal. We address each
argument in turn and reject them both.
             (a) Timeliness of State’s Cross-Appeal
   [3] It is well established that, within a postconviction pro-
ceeding, an order granting an evidentiary hearing on some
issues and denying a hearing on others is a final, appealable

3
    State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018).
4
    State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018), cert. denied ___
    U.S. ___, 139 S. Ct. 2716, ___ L. Ed. 2d ___ (2019).
                                    - 137 -
              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                              STATE v. KOCH
                             Cite as 304 Neb. 133

order as to the claims denied without a hearing.5 Such an order
is appealable because as to the denied claim, it is a “final judg-
ment” under Neb. Rev. Stat. § 29-3002 (Reissue 2016).6
   As noted, the district court’s order of November 2, 2017,
dismissed three of the four postconviction claims raised by
Koch. Neither party appealed, and Koch is thus correct that
the November 2 order has become final as it regards the three
dismissed claims. But the November 2 order was not a final,
appealable order as to the remaining claim on which an evi-
dentiary hearing was ordered. As to that claim, no final order
was entered until September 18, 2018, when the district court
denied postconviction relief following an evidentiary hearing.
Koch timely appealed from the September 18 order, and in its
appellate brief, the State presented a cross-appeal7 limited to
the timeliness of the claim on which the evidentiary hearing
was held. There is no merit to Koch’s argument that the State’s
cross-appeal is not properly before us because no appeal was
taken from the November 2 order.
                  (b) Timeliness of State’s Brief
   Next, Koch urges us not to consider the State’s cross-appeal
because the State “failed to timely file its brief” on appeal.8
We need not discuss the circumstances under which an appel-
late court might accept and consider a party’s untimely brief,
because here, the State’s brief and cross-appeal were not
untimely.
   The State requested, and was granted, an extension of time
to file its appellate brief, and it thereafter filed its brief, which
asserted a cross-appeal,9 within the time permitted by the court.
The State’s cross-appeal is properly before this court, and
Koch’s arguments to the contrary have no merit.

5
    Id.
6
    See id.
7
    See Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014).
8
    Reply brief for appellant at 7.
9
    See Neb. Ct. R. App. P. § 2-101(E) (rev. 2015).
                                    - 138 -
               Nebraska Supreme Court A dvance Sheets
                       304 Nebraska R eports
                               STATE v. KOCH
                              Cite as 304 Neb. 133

                    2. Koch’s Postconviction
                        Motion Untimely
   In its cross-appeal, the State argues it was error for the
district court to grant an evidentiary hearing on Koch’s claim
because his postconviction motion was time barred under
§ 29-3001(4)(a). We agree.
   [4] Section 29-3001(4) of the Nebraska Postconviction Act10
contains a 1-year time limit for filing a verified motion for
postconviction relief, which runs from one of four triggering
events or August 27, 2011, whichever is later.11 Here, the appli-
cable triggering event is set out in § 29-3001(4)(a): “The date
the judgment of conviction became final by the conclusion of
a direct appeal or the expiration of the time for filing a direct
appeal.” As such, the question of timeliness in this case turns
on whether Koch filed his postconviction motion within 1 year
of the date his judgment of conviction became final by the con-
clusion of his direct appeal.
   Koch argues his direct appeal was not concluded until the
district court entered judgment on the mandate issued by the
Court of Appeals. The State argues Koch’s direct appeal was
concluded once the Court of Appeals issued its mandate. The
State is correct.
   [5] In State v. Huggins,12 we held “the issuance of a mandate
by a Nebraska appellate court is a definitive determination of
the ‘conclusion of a direct appeal,’ and the ‘date the judgment
of conviction became final,’ for purposes of § 29-3001(4)(a).”
State v. Huggins observed that when a criminal conviction
is appealed, this court has often indicated the finality of the
judgment is tied to the issuance of a final mandate,13 and that

10
     Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016 & Cum. Supp. 2018).
11
     See State v. Edwards, 301 Neb. 579, 919 N.W.2d 530 (2018).
12
     State v. Huggins, 291 Neb. 443, 450, 866 N.W.2d 80, 85 (2015).
13
     Huggins, supra note 12, citing State v. Davis, 277 Neb. 161, 762 N.W.2d
     287 (2009); State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003); State
     v. White, 256 Neb. 536, 590 N.W.2d 863 (1999); and State v. Urbano, 256
     Neb. 194, 589 N.W.2d 144 (1999).
                                   - 139 -
              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                              STATE v. KOCH
                             Cite as 304 Neb. 133

“[u]nder Nebraska law and procedure, the issuance of a man-
date by an appellate court is a clear signal that a direct appeal
has been concluded.”14 Since our decision in Huggins, both this
court and the Court of Appeals have applied the rule that for
purposes of § 29-3001(4)(a), the conclusion of a direct appeal
occurs when a Nebraska appellate court issues the mandate in
the direct appeal.15
   Here, it is undisputed that the Court of Appeals issued its
mandate on June 28, 2016, and under our case law, that is
the date on which Koch’s judgment of conviction became
final by the conclusion of his direct appeal for purposes of
§ 29-3001(4)(a). Koch filed his postconviction motion on
July 19, 2017, more than 1 year after the date the mandate
was issued by the appellate court. As such, his postconviction
motion was time barred under § 29-3001(4)(a).
                      V. CONCLUSION
   We do not reach Koch’s assignments of error on appeal
because we find merit in the State’s cross-appeal. We conclude
Koch’s postconviction motion was filed outside the 1-year
limitations period under § 29-3001(4)(a) and was time barred.
We therefore affirm the district court’s order of September 18,
2018, dismissing Koch’s postconviction motion, albeit on dif-
ferent grounds.
                                                     A ffirmed.
   Heavican, C.J., and Funke and Freudenberg, JJ., not
participating.

14
     Huggins, supra note 12, 291 Neb. at 449, 866 N.W.2d at 85.
15
     See, State v. Shannon, 293 Neb. 303, 876 N.W.2d 907 (2016); State v.
     Liner, 26 Neb. App. 303, 917 N.W.2d 194 (2018).
