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07/06/2018 01:11 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          299 Nebraska R eports
                                                    STATE v. EPP
                                                 Cite as 299 Neb. 703




                                        State of Nebraska, appellee, v.
                                          William A. Epp, appellant.
                                                   ___ N.W.2d ___

                                         Filed April 20, 2018.    No. S-17-297.

                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.	 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.
                3.	 Constitutional Law: Rules of the Supreme Court: Courts: Statutes.
                    Strict compliance with Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) is nec-
                    essary whenever a litigant challenges the constitutionality of a statute,
                    regardless of how that constitutional challenge may be characterized.
                4.	 Postconviction: Proof. If a postconviction motion alleges only conclu-
                    sions 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.
                5.	 Postconviction: Justiciable Issues: Right to Counsel: Appeal and
                    Error. Where the assigned errors in the postconviction petition before
                    the district court are either procedurally barred or without merit, estab-
                    lishing that the postconviction action contained no justiciable issue of
                    law or fact, it is not an abuse of discretion to fail to appoint appellate
                    counsel for an indigent defendant.

                 Appeal from the District Court for Gage County: Vicky L.
               Johnson, Judge. Affirmed.

                    William A. Epp, pro se.

                  Douglas J. Peterson, Attorney General, and Erin E. Tangeman
               for appellee.
                                    - 704 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                 STATE v. EPP
                              Cite as 299 Neb. 703

  Heavican, C.J., Miller-Lerman, and Stacy, JJ., and Luther
and O’Gorman, District Judges.

      Heavican, C.J.
                      NATURE OF CASE
   This case presents an appeal from the dismissal of a motion
for postconviction relief without an evidentiary hearing or
the appointment of counsel. The district court dismissed the
motion as filed outside the 1-year limitations period set forth in
Neb. Rev. Stat. § 29-3001 (Reissue 2016). We affirm.

                       BACKGROUND
   In 2007, William A. Epp was charged with robbery, use
of a deadly weapon to commit a felony, and possession of a
deadly weapon by a felon. The information also alleged that
Epp was a habitual criminal. A jury convicted Epp of robbery
and possession of a deadly weapon by a felon, but acquitted
him of use of a deadly weapon to commit a felony. Epp was
sentenced to 60 to 60 years’ imprisonment on both his convic-
tion for robbery and his conviction for possession of a deadly
weapon by a felon. The court ordered the sentences to be
served consecutively.
   Epp appealed his convictions and sentences, which were
affirmed by this court.1 As pertinent here, we found in State
v. Epp 2 that we did not need to address Epp’s argument
that Neb. Rev. Stat. § 25-1233 (Reissue 2016), which lim-
its transportation of inmate witnesses, was unconstitutional,
because the trial court did not err in finding that the inmate
testimony Epp proffered was inadmissible hearsay. We also
rejected Epp’s argument that there was insufficient evidence
supporting his conviction for possession of a deadly weapon
by a felon. Finally, we rejected Epp’s argument that the trial
court had erred in admitting evidence supporting habitual

 1	
      See State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
 2	
      Id.
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           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                           STATE v. EPP
                        Cite as 299 Neb. 703

criminal enhancement. Epp’s sentences became final on
October 27, 2009.
   Epp filed a motion for postconviction relief on November
28, 2016, alleging four claims for relief. Epp alleged, first,
that the 1-year period of limitation set forth in § 29-3001
violated the ex post facto clauses of the U.S. and Nebraska
Constitutions. Second, Epp alleged that Neb. Rev. Stat.
§ 29-2221 (Reissue 2016) violates the Sixth Amendment right
to an impartial jury by allowing a judge instead of a jury to
find the existence of prior convictions. Third, Epp alleged
there was insufficient evidence for his conviction of posses-
sion of a deadly weapon by a felon, which conviction was
allegedly inconsistent with the jury’s acquittal on the charge
of use of a deadly weapon to commit a felony. Fourth, Epp
alleged that § 25-1233 violated equal protection under the
U.S. and Nebraska Constitutions.
   The district court dismissed Epp’s motion without an evi-
dentiary hearing or the appointment of counsel. The court
found that the postconviction motion was barred by the
1-year period of limitation set forth in § 29-3001(4)(e), which
provides that the 1-year period will run from the date of
August 27, 2011 (the effective date of the statute’s enact-
ment), if the other subsections do not apply. The court found
no merit to Epp’s argument that the limitations period was
unconstitutional.
   Alternatively to the court’s conclusion that the motion was
filed outside the 1-year limitations period, the court concluded
that the allegations in the motion for postconviction relief
either failed to state a claim that Epp’s convictions were void
or voidable, lacked merit as a matter of law, or were proce-
durally barred. Specifically, the court found that Epp’s claim
regarding the constitutionality of § 29-3001(4)(e) failed to
allege a constitutional violation that would render his convic-
tions void or voidable; thus, it did not present a valid claim
for postconviction relief. The court concluded Epp’s argument
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                 STATE v. EPP
                              Cite as 299 Neb. 703

regarding § 29-2221 had no merit and has been rejected by
this court in State v. Johnson.3 Lastly, the court found that
Epp’s claims challenging the constitutionality of § 25-1233
and the sufficiency of the evidence to support his conviction
for felon in possession were litigated on direct appeal and,
therefore, procedurally barred.
   Epp appealed. We moved the appeal to our docket on our
own motion, in accordance with this court’s authority to regu-
late the caseloads of the appellate courts of this state.4 Epp
did not file notice that he was raising an issue involving the
constitutionality of a statute as required by Neb. Ct. R. App. P.
§ 2-109(E) (rev. 2014).

                 ASSIGNMENTS OF ERROR
   Epp assigns that the district court erred in failing to (1)
grant an evidentiary hearing, (2) appoint counsel, and (3) grant
postconviction relief.

                    STANDARD OF REVIEW
   [1] If the facts in a case are undisputed, the issue as to when
thestatute of limitations begins to run is a question of law.5
   [2] Failure to appoint counsel in postconviction proceedings
is not error in the absence of an abuse of discretion.6

                           ANALYSIS
   Postconviction motions are subject to the limitations period
set forth in § 29-3001(4), which states:
      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:

 3	
      State v. Johnson, 290 Neb. 369, 859 N.W.2d 877 (2015).
 4	
      See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
 5	
      State v. Huggins, 291 Neb. 443, 866 N.W.2d 80 (2015).
 6	
      State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                   STATE v. EPP
                                Cite as 299 Neb. 703

          (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;
          (b) The date on which the factual predicate of the
       constitutional claim or claims alleged could have been
       discovered through the exercise of due diligence;
          (c) The date on which an impediment created by state
       action, in violation of the Constitution of the United
       States or the Constitution of Nebraska or any law of this
       state, is removed, if the prisoner was prevented from fil-
       ing a verified motion by such state action;
          (d) 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
       newly recognized right has been made applicable retro-
       actively to cases on postconviction collateral review; or
          (e) August 27, 2011.
    The parties agree that subsections (4)(a) through (d) do not
apply. Under the facts of this case, the latest date from which
the 1-year limitations period runs is August 27, 2011, as set
forth in § 29-3001(4)(e). Epp argues, however, that applica-
tion of any provision of § 29-3001 violates the ex post facto
clauses of the U.S. and Nebraska Constitutions.7
    [3] Epp did not file notice as required by § 2-109(E).
Section 2-109(E) requires that a party presenting a case involv-
ing the federal or state constitutionality of a statute must file
and serve notice thereof with the Supreme Court Clerk by a
separate written notice in a petition to bypass at the time of
filing such party’s brief. Strict compliance with § 2-109(E) is
necessary whenever a litigant challenges the constitutionality
of a statute, regardless of how that constitutional challenge
may be characterized.8 Therefore, we do not address Epp’s

 7	
      U.S. Const. art. I, § 10, and Neb. Const. art. I, § 16.
 8	
      State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                 STATE v. EPP
                              Cite as 299 Neb. 703

claim that § 29-3001(4)(e) violates prohibitions against ex post
facto laws. However, we note that we recently held in State
v. Amaya 9 that § 29-3001 does not violate the ex post facto
clauses of the U.S. and Nebraska Constitutions.
   [4] There is no dispute that Epp’s motion for postconviction
relief, filed on November 28, 2016, was outside the 1-year
limitations period set forth in § 29-3001(4)(e). Accordingly,
the district court did not err in dismissing the motion as out-
side the limitations period without conducting an evidentiary
hearing. 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.10
   [5] For similar reasons, the district court did not err in
denying Epp’s motion for appointment of counsel. Under the
Nebraska Postconviction Act, it is within the discretion of the
trial court as to whether counsel shall be appointed to repre-
sent the defendant.11 Where the assigned errors in the postcon-
viction petition before the district court are either procedurally
barred or without merit, establishing that the postconviction
action contained no justiciable issue of law or fact, it is not
an abuse of discretion to fail to appoint appellate counsel for
an indigent defendant.12 Epp’s motion presented no justiciable
issue of law or fact because it was barred by the limitations
period set forth by § 29-3001(4)(e).

                      CONCLUSION
  Because Epp’s motion for postconviction relief was filed
more than 1 year from August 27, 2011, it was untimely.13 We

 9	
      State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017).
10	
      State v. Goynes, 293 Neb. 288, 876 N.W.2d 912 (2016).
11	
      State v. Custer, 298 Neb. 279, 903 N.W.2d 911 (2017).
12	
      Id.
13	
      See § 29-3001(4)(e).
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          Nebraska Supreme Court A dvance Sheets
                  299 Nebraska R eports
                          STATE v. EPP
                       Cite as 299 Neb. 703

affirm the district court’s dismissal of the motion without an
evidentiary hearing or the appointment of counsel.
                                                    A ffirmed.
   Funke, J., participating on briefs.
   Wright and Cassel, JJ., not participating.
