State v. Smith , 286 Neb. 77 ( 2013 )

Nebraska Advance Sheets
STATE v. SMITH 77
Cite as 286 Neb. 77unauthorized practice of law under the definition set forth
in § 3-1001(E) and falls within the general prohibition of
§ 3-1003 applicable to nonlawyers such as Hansen. Although
the Commission did not specifically allege in its petition that
Hansen was engaged in the unauthorized practice of law by
holding himself out as being authorized to practice law, that
fact is implicit in its allegations that Hansen had been giv­
ing legal advice to others. And we note that despite having
an opportunity to do so, Hansen did not file exceptions to
the finding of the hearing master that he “is and was holding
himself out as a regular attorney practitioner in the State of
Nebraska,” nor did he assert that such finding was not within
the scope of this proceeding. We conclude that Hansen’s
conduct is deceptive and poses the type of risk of harm to
the public that our unauthorized practice rules are intended
to prevent.
Accordingly, by separate order entered on June 14, 2013,
Hansen is enjoined from engaging in the unauthorized prac­
tice of law in any manner, including but not limited to hold­
ing himself out to another as being entitled to practice law as
defined by § 3-1001.
Injunction issued.
State of Nebraska, appellee, v. Samuel Q. Smith, appellant.
___ N.W.2d ___
Filed June 14, 2013. No. S-12-966.
1. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, which an appellate court reviews independently of the lower court’s
determination.
2. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic­
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
3. Actions: Time. When the period within which an act is to be done in any action
or proceeding is given in terms of months or years, the last day of the period is
the appropriate anniversary of the triggering act or event, unless that anniversary
falls on a Saturday, Sunday, or court holiday.
4. Records: Time: Evidence: Presumptions. The entry of filing by the clerk is the
best evidence of the date of filing and is presumed to be correct until the contrary
is shown.
Nebraska Advance Sheets
78 286 NEBRASKA REPORTS
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
Samuel Q. Smith, pro se.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Wright, J.
I. NATURE OF CASE
Samuel Q. Smith appeals from the district court’s denial
of his motion for postconviction relief without an evidentiary
hearing. The court determined the action was barred by Neb.
Rev. Stat. § 29-3001(4) (Cum. Supp. 2012). We affirm.
II. SCOPE OF REVIEW
[1] Statutory interpretation presents a question of law, which
we review independently of the lower court’s determination.
Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).
[2] A defendant requesting postconviction relief must estab­
lish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
State v. Robinson, 285 Neb. 394, 827 N.W.2d 292 (2013).
III. FACTS
In April 2003, Robert Chromy chased Smith and two other
shoplifters from a gas station and tried to keep them from
leaving the scene. See State v. Smith, 13 Neb. App. 404, 693
N.W.2d 587 (2005). During this attempt, Smith shot and killed
Chromy. Smith was charged with second degree murder and
use of a deadly weapon to commit a felony. The jury con­
victed him of both counts. He was sentenced to 40 to 60 years’
imprisonment for second degree murder and 5 to 10 years’
imprisonment for use of a deadly weapon to commit a felony.
The sentences were to be served consecutively with credit for
391 days served. The Nebraska Court of Appeals affirmed
Smith’s convictions and sentences, and on April 27, 2005, this
court denied further review.
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STATE v. SMITH 79
Cite as 286 Neb. 77In 2011, the Nebraska Legislature enacted L.B. 137, which
amended the Nebraska Postconviction Act, Neb. Rev. Stat.
§§ 29-3001 to 29-3004 (Reissue 2008 & Cum. Supp. 2012).
See 2011 Neb. Laws, L.B. 137, § 1. The amendment created a
1-year time limit for filing a verified motion for postconviction
relief. The 1-year period runs from the appropriate triggering
event or August 27, 2011, whichever is later. See, L.B. 137,
§ 1; § 29-3001(4) (Cum. Supp. 2012).
Smith filed the instant pro se action for postconviction
relief. He alleges that he filed the motion on August 24, 2012,
and that his motion was timely filed under the “prison delivery
rule.” The motion was file stamped by the clerk of the district
court for Douglas County, Nebraska, on August 28, 2012.
Smith claims his motion was signed and notarized on August
24, which was a Friday, and that the next mailing day available
to him was Monday, August 27. He claims the fact that his
motion was received on August 28 is evidence that he mailed
the motion on or before August 27.
The district court concluded Smith had until 1 year from
August 27, 2011, to file his motion. It noted that Nebraska
does not have a prison delivery rule. The court determined
that the motion, file stamped on August 28, 2012, was filed
outside the 1-year period described in § 29-3001(4) and that
Smith’s postconviction action was barred by the limitation
period pursuant to § 29-3001(4). It denied the motion without
an evidentiary hearing, and Smith appealed. Pursuant to statu­
tory authority, we moved the case to our docket. See Neb. Rev.
Stat. § 24-1106(3) (Reissue 2008).
IV. ASSIGNMENT OF ERROR
Smith assigns, restated, that the district court erred in deny­
ing postconviction relief without an evidentiary hearing.
V. ANALYSIS
1. § 29-3001(4)
The question is whether Smith timely filed his motion
for postconviction relief. Section 29-3001(4) states, in rel­
evant part:
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80 286 NEBRASKA REPORTS
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:
(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;
....
(e) August 27, 2011.
Smith’s convictions became final when his direct appeal
concluded with this court’s denial of his petition for further
review on April 27, 2005, several years before August 27,
2011. See § 29-3001(4)(a). Since August 27, 2011, is later than
the date Smith’s judgments of conviction became final, the
1-year period in § 29-3001(4) began to run on August 27, 2011,
and expired on August 27, 2012.
[3] Unless the context is shown to intend otherwise, the
word “year” in a Nebraska statute means a “calendar year.”
See Neb. Rev. Stat. § 49-801(25) (Reissue 2010). In Licht
v. Association Servs., Inc., 236 Neb. 616, 463 N.W.2d 566(1990), we determined that a 2-year period beginning on April
4, 1986, expired on April 4, 1988. In application, when the
period is given in terms of months or years, the last day of the
period is the appropriate anniversary of the triggering act or
event, unless that anniversary falls on a Saturday, Sunday, or
court holiday. Id.Because the 1-year period for Smith’s postconviction motion
began to run on August 27, 2011, it expired on the 1-year anni­
versary of that date, Monday, August 27, 2012. Smith’s motion
was file stamped on August 28, 2012, 1 day after the 1-year
period expired.
2. Filing by Mail
(a) Prison Delivery Rule
Smith contends he filed his motion on August 24, 2012. He
asserts that the district court abused its discretion by disre­
garding the prison delivery rule set forth in Houston v. Lack,
487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988). In
Houston, the prisoner delivered his notice of appeal to prison
authorities for mailing to the district court within the 30-day
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STATE v. SMITH 81
Cite as 286 Neb. 77time period mandated by 28 U.S.C. § 2107 (1988). His notice
of appeal was not stamped “filed” by the district court until 1
day after the required filing period. The U.S. Supreme Court
held that the notice was timely filed. It concluded that a pris­
oner acting pro se “files” a notice of appeal on the date it is
delivered to prison authorities for forwarding to the clerk of
the district court. The Court noted that a pro se prisoner liti­
gant cannot travel to the courthouse, but has to rely on prison
authorities, who may have a reason to delay the filing.
The State argues Smith’s motion was filed on August 28,
2012, as shown by the filing stamp of the clerk of the district
court. It claims there is no evidence that Smith placed his
motion in the mail on August 24. It admits Smith signed the
motion on August 24 but asserts that the date the motion was
signed is not controlling. The State claims that Nebraska courts
have declined to adopt a prison delivery rule.
In State v. Parmar, 255 Neb. 356, 586 N.W.2d 279 (1998),
we rejected the prison delivery rule. After we affirmed both
his conviction for murder and the denial of his first postcon­
viction motion, LeRoy J. Parmar filed a pro se motion for
postconviction relief. The district court denied the motion.
We dismissed the appeal because Parmar had not timely
perfected it. The postconviction appeal presented the ques­
tion whether a prisoner’s pro se poverty affidavit, which was
necessary to perfect the appeal, was filed on the date it was
delivered to prison authorities for mailing rather than the date
it was received in the office of the clerk of the district court.
Because the notice of appeal and the poverty affidavit were
received in the clerk of the district court’s office more than
30 days after the rendition of the judgment, we were with­
out jurisdiction to consider the appeal. Parmar argued that
his pro se notice of appeal and poverty affidavit were timely
filed under the prison delivery rule announced in Houston v.
Lack, supra.We distinguished Nebraska’s filing requirements in Neb.
Rev. Stat. § 25-1912 (Reissue 1995) from 28 U.S.C. § 2107(1994). Section 25-1912 required an appeal to be filed in
the office of the clerk of the district court, and we could not
construe “‘in the office of’” to mean “‘in the hands of prison
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82 286 NEBRASKA REPORTS
authorities for forwarding to the office of.’” See State v.
Parmar, 255 Neb. at 362, 586 N.W.2d at 283. To say we had
jurisdiction based on anything other than the plain words of the
statute would have been the equivalent of judicial legislation.
Id. We continue to hold that the prison delivery rule does not
apply in Nebraska.
(b) § 49-1201
Smith relies on Neb. Rev. Stat. § 49-1201 (Reissue 2010),
which provides for a presumption of mailing “if the sender
establishes by competent evidence that the report, claim, tax
return, tax valuation, equalization, or exemption protest, or tax
form, petition, appeal, or statement, or payment was deposited
in the United States mail on or before the date for filing or
paying.” Smith alleges he has provided evidence of mailing
through the signature and notarization on his motion for post­
conviction relief, which are dated August 24, 2012. He asserts
that August 24 was a Friday; that all institutional mail would
not leave the institution until the next Monday, August 27; and
that the fact that the clerk of the district court’s office received
the motion on August 28 was competent evidence he mailed
the motion on or before August 27.
Statutory interpretation presents a question of law, which
we review independently of the lower court’s determination.
Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).
Smith’s reliance on § 49-1201 is misplaced. This court has
not applied § 49-1201 to postconviction actions. Section
49-1201 relates to tax matters and is inapplicable in postcon­
viction actions.
Words grouped in a list should be given related meaning.
See State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990). The
terms “tax return,” “tax valuation,” “equalization,” “exemption
protest,” “tax form,” “petition,” “appeal,” “statement,” and
“payment” relate to tax matters. Giving the words “report” and
“claim” a related meaning excludes a motion for postconvic­
tion relief from coverage under § 49-1201. Section 49-1201
does not apply to Smith’s motion.
[4] A defendant requesting postconviction relief must
establish the basis for such relief, and the findings of the
Nebraska Advance Sheets
STATE v. BRANCH 83
Cite as 286 Neb. 83district court will not be disturbed unless they are clearly
erroneous. State v. Robinson, 285 Neb. 394, 827 N.W.2d 292(2013). “The entry of filing by the clerk is the best evidence
of the date of filing and is presumed to be correct until the
contrary is shown.” State v. Hess, 261 Neb. 368, 377-78,
622 N.W.2d 891, 901 (2001). The district court’s finding
that Smith filed his motion outside the 1-year period was not
clearly erroneous.
VI. CONCLUSION
The district court did not err in denying postconviction
relief without an evidentiary hearing. We affirm the judgment
of the district court.
Affirmed.
State of Nebraska, appellee, v. James L. Branch, appellant.
___ N.W.2d ___
Filed June 14, 2013. No. S-12-1010.
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. Postconviction: Constitutional Law: Judgments: Proof. An evidentiary hear­
ing on a motion for postconviction relief is required on an appropriate motion
containing factual allegations which, if proved, constitute an infringement of the
movant’s rights under the Nebraska or federal Constitution, causing the judgment
against the defendant to be void or voidable.
3. Postconviction. An evidentiary hearing is not required when a motion for post­
conviction relief alleges only conclusions of fact or law.
4. Postconviction: Constitutional Law: Judgments: Proof. If a defendant makes
sufficient allegations of a constitutional violation which would render a judg­
ment void or voidable, an evidentiary hearing on a motion for postconviction
relief may be denied only when the records and files affirmatively show that the
defend­ nt is entitled to no relief.
a
Appeal from the District Court for Douglas County: W.
Mark Ashford, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.