State v. Lotter

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/09/2018 08:12 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. LOTTER
Cite as 301 Neb. 125
State of Nebraska, appellee, v.
John L. Lotter, appellant.
___ N.W.2d ___
Filed September 28, 2018. Nos. S-17-325, S-17-338,
S-17-339, S-17-1126, S-17-1127, S-17-1129.
1. Judgments: Jurisdiction: Appeal and Error. Determination of a juris-
dictional issue which does not involve a factual dispute is a matter of
law which requires an appellate court to reach its conclusions indepen-
dent from a trial court.
2. Postconviction: Appeal and Error. Whether a claim raised in a post-
conviction proceeding is procedurally barred is a question of law. When
reviewing a question of law, an appellate court resolves the question
independently of the lower court’s conclusion.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final judgment or
final order entered by the tribunal from which the appeal is taken.
4. Postconviction: Final Orders. Within a postconviction 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.
5. Postconviction: Appeal and Error. An order denying a postconvic-
tion claim is appealable even when the court reserves ruling on other
claims.
6. Postconviction: Final Orders. An order overruling a motion for post-
conviction relief as to a claim is a “final judgment” as to such claim
under Neb. Rev. Stat. § 29-3002 (Reissue 2016).
7. Judgments: Final Orders: Time: Appeal and Error. A party has 30
days from the entry of a judgment or final order to appeal the decision
of a district court unless a party has filed a timely motion which termi-
nates the appeal period.
8. Pleadings: Judgments: Appeal and Error. A motion for reconsid-
eration is the functional equivalent of a motion to alter or amend a
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STATE v. LOTTER
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judgment, which terminates the period in which a party must file a
notice of appeal.
9. Pleadings: Judgments: Time: Appeal and Error. In cases involving
a motion to alter or amend a judgment, a critical factor is whether the
motion was filed within 10 days of the final order, because a timely
motion terminates the time for filing a notice of appeal.
10. Courts: Judgments: Time: Appeal and Error. A motion for reconsid-
eration does not terminate the time for appeal and is considered nothing
more than an invitation to the court to consider exercising its inherent
power to vacate or modify its own judgment.
11. Rules of the Supreme Court: Postconviction. Postconviction pro-
ceedings are not governed by the Nebraska Court Rules of Pleading in
Civil Cases.
12. Pleadings: Time: Appeal and Error. An untimely motion to alter or
amend does not terminate the time for perfection of an appeal and does
not extend or suspend the time limit for filing a notice of appeal.
13. Legislature: Courts: Time: Appeal and Error. When the Legislature
fixes the time for taking an appeal, the courts have no power to extend
the time directly or indirectly.
14. Postconviction: Pleadings: Final Orders: Appeal and Error. An
order ruling on a motion filed in a pending postconviction case seeking
to amend the postconviction motion to assert additional claims is not a
final judgment and is not appealable under Neb. Rev. Stat. § 29-3002
(Reissue 2016).
15. Final Orders: Time: Appeal and Error. To trigger the savings clause
for premature notices of appeal under Neb. Rev. Stat. § 25-1912(2)
(Reissue 2016), an announcement must pertain to a decision or order
that, once entered, would be final and appealable.
16. Postconviction: Pleadings: Time. The Nebraska Postconviction Act
contains a 1-year time limit for filing a verified motion for postconvic-
tion relief, which runs from one of four triggering events or August 27,
2011, whichever is later.
17. Sentences. Hurst v. Florida, ___ U.S. ___, 136 S. Ct. 616, 193 L. Ed.
2d 504 (2016), merely applied Ring v. Arizona, 536 U.S. 584, 122 S. Ct.
2428, 153 L. Ed. 2d 556 (2002), and did not set forth a new rule of law
for sentencing.
18. Constitutional Law: Courts. Constitutional rights are not defined by
inferences from opinions which did not address the question at issue.
19. Sentences: Time: Appeal and Error. Ring v. Arizona, 536 U.S. 584,
122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), announced a new proce-
dural rule that does not apply retroactively to cases already final on
direct review.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. LOTTER
Cite as 301 Neb. 125
Appeals from the District Court for Richardson County:
Daniel E. Bryan, Jr., Judge, Retired, and Vicky L. Johnson,
Judge. Appeals in Nos. S-17-325, S-17-338, and S-17-339
dismissed. Judgment and final order in Nos. S-17-1126,
S-17-1127, and S-17-1129 affirmed.
Timothy S. Noerrlinger, of Naylor & Rappl, and Rebecca E.
Woodman for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith
for appellee.
Brian William Stull, of American Civil Liberties Union
Foundation, and Amy A. Miller, of American Civil Liberties
Union of Nebraska Foundation, for amici curiae American
Civil Liberties Union Capital Punishment Project and American
Civil Liberties Union of Nebraska Foundation.
Heavican, C.J., Cassel, Stacy, Funke, and Papik, JJ., and
Bishop and Welch, Judges.
Cassel, J.
I. INTRODUCTION
In identical, successive postconviction motions filed in
three cases, John L. Lotter sought relief based on a 2016
U.S. Supreme Court decision1 and on a death qualification
issue. In separate orders filed months apart, the district court
denied relief on each issue. Because Lotter did not timely
appeal the denials of the death qualification issue, we lack
jurisdiction over those appeals. We affirm the denials of the
other claim as time barred, because the decision he relies
upon is not a “newly recognized right [that] has been made
applicable retroactively to cases on postconviction collat-
eral review.”2
1
Hurst v. Florida, ___ U.S. ___, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016).
2
Neb. Rev. Stat. § 29-3001(4)(d) (Reissue 2016).
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STATE v. LOTTER
Cite as 301 Neb. 125
II. BACKGROUND
1. Convictions and Sentencing
Lotter’s crimes are well known, and the underlying facts
are set forth in our decision on Lotter’s direct appeal.3 In three
separate cases against Lotter which were consolidated for trial,
a jury convicted him of several crimes, including three counts
of first degree murder. In accordance with the laws in effect at
the time of his trial, a three-judge panel convened in February
1996 to determine whether Lotter should be sentenced to
death. The panel found the applicability of three aggravating
circumstances beyond a reasonable doubt and imposed the
death penalty.
A criminal conviction is final for purposes of collateral
review when the judgment of conviction is rendered, the
availability of appeal is exhausted, and the time for petition
for certiorari has lapsed.4 Lotter’s convictions became final
in 1999.5
2. K ey U.S. Supreme Court
Sixth A mendment Cases
(a) Apprendi v. New Jersey
In 2000, the U.S. Supreme Court decided Apprendi v. New
Jersey,6 a landmark decision with respect to Sixth Amendment
jurisprudence. In that case, a hate crime statute authorized an
increase in the prescribed statutory maximum sentence based
on a judge’s finding by a preponderance of the evidence that
the defendant acted with purpose to intimidate the victim
3
See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified on
denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999).
4
State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003) (superseded in part
by statute as stated in State v. Harris, 292 Neb. 186, 871 N.W.2d 762
(2015)).
5
See id.
6
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000).
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based on the particular circumstances of the victim. The trial
judge concluded that the defendant had been motivated by
racial bias, and in accordance with the statute, the judge
increased the defendant’s sentence.
The Apprendi Court addressed whether a judge, rather than
a jury, could find facts that increased the defendant’s maxi-
mum sentence. The Court determined that the statute violated
the Due Process Clause of the 14th Amendment and the 6th
Amendment right to trial by jury. It declared:
Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt. With that exception,
we endorse the statement of the rule set forth in the con-
curring opinions in that case: “[I]t is unconstitutional for
a legislature to remove from the jury the assessment of
facts that increase the prescribed range of penalties to
which a criminal defendant is exposed. It is equally clear
that such facts must be established by proof beyond a
reasonable doubt.”7
(b) Ring v. Arizona
Two years after Apprendi, the U.S. Supreme Court decided
Ring v. Arizona.8 Ring applied the Apprendi rule to capital
sentencing schemes and determined that capital defendants are
entitled to a jury determination of any fact that would increase
the possible maximum punishment. The Court held, “Because
Arizona’s enumerated aggravating factors operate as ‘the func-
tional equivalent of an element of a greater offense,’ . . . the
Sixth Amendment requires that they be found by a jury.” 9 Ring
7
Id., 530 U.S. at 490 (quoting Jones v. United States, 526 U.S. 227, 119 S.
Ct. 1215, 143 L. Ed. 2d 311 (1999) (Stevens, J., concurring) (Scalia, J.,
concurring)).
8
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
9
Id., 536 U.S. at 609.
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explicitly overruled one of its prior cases “to the extent that
it allows a sentencing judge, sitting without a jury, to find
an aggravating circumstance necessary for imposition of the
death penalty.”10
(c) Hurst v. Florida
On January 12, 2016, the U.S. Supreme Court filed its deci-
sion in Hurst v. Florida.11 In that case, the Court considered
the constitutionality of Florida’s capital sentencing scheme in
light of Ring. Under Florida law, a jury renders an “‘advisory
sentence’” of life or death without specifying a factual basis
for its recommendation and then the court, notwithstanding
the jury’s recommendation, weighs the aggravating and miti-
gating circumstances and enters a sentence of life imprison-
ment or death.12 Thus, the trial court alone makes the findings
necessary for imposition of a death sentence—that “‘sufficient
aggravating circumstances exist’” and that “‘there are insuf-
ficient mitigating circumstances to outweigh the aggravating
circumstances.’”13 In holding the sentencing scheme uncon-
stitutional, the Court declared that “[t]he Sixth Amendment
requires a jury, not a judge, to find each fact necessary to
impose a sentence of death.”14 The Hurst Court stated that
“Florida’s sentencing scheme, which required the judge alone
to find the existence of an aggravating circumstance, is there-
fore unconstitutional.”15
3. Nebraska’s Capital
Sentencing Scheme
At the time of Lotter’s convictions and sentences, Nebraska
law provided that after a defendant was found guilty of first
10
Id.
11
Hurst v. Florida, supra note 1.
12
Id., 136 S. Ct. at 620.
13
Id., 136 S. Ct. at 622.
14
Id., 136 S. Ct. at 619.
15
Id., 136 S. Ct. at 624.
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STATE v. LOTTER
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degree murder, a trial judge or a three-judge panel determined
whether statutory aggravating circumstances existed.16 If such
circumstances existed, the defendant faced a maximum pen-
alty of death.17 If aggravating circumstances did not exist, the
defendant faced a maximum penalty of life imprisonment. Ring
invalidated this procedure.
In response to Ring, the Nebraska Legislature enacted L.B.
1,18 which amended Nebraska’s capital sentencing statutes. The
new law required that a jury determine the existence of aggra-
vating circumstances, unless a jury is waived by the defend­
ant.19 It specifically stated that each aggravating circumstance
needed to be proved by the State beyond a reasonable doubt.20
If the jury rendered a verdict finding the existence of one or
more aggravating circumstances, a panel of three judges would
determine the sentence.21 The panel of judges was to consider
whether the aggravating circumstances as determined to exist
justified imposition of a death sentence, whether mitigating cir-
cumstances existed which approached or exceeded the weight
given to the aggravating circumstances, or whether the sen-
tence of death was excessive or disproportionate to the penalty
imposed in similar cases.22 Nothing in the legislative response
dictated that it would apply to sentences which had already
become final upon completion of direct review.23
4. Fourth Postconviction
Motion Proceedings
Exactly 1 year after the Hurst decision, Lotter filed in each
case a fourth motion for postconviction relief. He set forth two
16
Neb. Rev. Stat. §§ 29-2520 to 29-2524 (Reissue 1995).
17
Neb. Rev. Stat. §§ 28-105 and 28-303 (Reissue 1995).
18
See 2002 Neb. Laws, L.B. 1.
19
See § 29-2520(2) (Reissue 2008).
20
See § 29-2520(4)(e) and (f).
21
§ 29-2521(1) and (3) (Reissue 2008).
22
§ 29-2522 (Reissue 2008).
23
See L.B. 1.
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STATE v. LOTTER
Cite as 301 Neb. 125
grounds for relief. Lotter first alleged that Nebraska’s capi-
tal sentencing scheme was unconstitutional in light of Hurst
(claim 1). Second, Lotter alleged that the death qualification of
the jury violated his rights under the 8th and 14th Amendments
(claim 2).
The district court promptly conducted a “preliminary review”
to determine whether an evidentiary hearing should be granted.
On January 17, 2017, the court entered an order denying claim
2 as being procedurally barred. The court neither granted nor
denied an evidentiary hearing on claim 1. The pertinent portion
of the court’s order is as follows:
Lotter’s claim for post-conviction relief on Claim 1
is presently set for briefing from the State of Nebraska
before this court determines whether a hearing is required.
. . . Upon submission of the briefs, this court will deter-
mine if any further hearings will be necessary.
Lotter’s claim for post-conviction relief on Claim 2[]
is denied. Lotter’s request to reverse his convictions are
[sic] denied.
On Friday, January 27, 2017, the district court held a
hearing concerning a mandate in a previous postconviction
proceeding. During the hearing, Lotter’s counsel asked how
to proceed with asking the court to reconsider its denial of
claim 2. Counsel expressed concern that “if we file a motion
for reconsideration within 10 days, there’s a potential that
that can be construed as a final judgment in the case and so
the issues would be bifurcated and we would have to litigate
this piecemeal.” The court suggested that the “best path” may
be to file a motion for reconsideration which “should hold it
in abeyance.”
On Monday, January 30, 2017, Lotter filed a “Motion for
Reconsideration and to Hold in Abeyance.” In the motion,
Lotter asked the court to reconsider its ruling on claim 2 and to
hold the motion in abeyance for hearing and decision together
with the hearing and decision on claim 1. He asserted that
before claim 2 is disposed of, the court should allow briefing
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on whether cause existed to excuse any procedural default.
Lotter further stated that “[i]n an abundance of caution, this
motion is being filed in accordance with the provisions for fil-
ing a motion to alter or amend judgment under Neb. Rev. Stat.
§ 25-1329 [(Reissue 2016)].”
Before the district court ruled on Lotter’s motion for recon-
sideration, Lotter filed a motion for leave to amend his post-
conviction motion. He sought to add an additional claim, which
would allege that his direct appeal counsel was constitutionally
ineffective for failing to challenge the death qualification of his
jury and that his initial postconviction counsel had an actual
conflict of interest which precluded counsel from asserting a
claim based on ineffective assistance of direct appeal coun-
sel (claim 3).
On February 22, 2017, the district court entered an order
denying Lotter’s motion for reconsideration and denying the
motion for leave to amend. Identical orders were filed in
each case.
On March 22, 2017, Lotter filed a notice of appeal in
each case, which were docketed in this court as cases Nos.
S-17-325, S-17-338, and S-17-339 (first appeal). The State
moved for summary dismissal, asserting lack of jurisdiction.
We overruled the motion but reserved the jurisdictional issue
until plenary submission of the appeals.
On September 28, 2017, the district court denied relief on
claim 1 without an evidentiary hearing. The court determined
that the claim was time barred, because Hurst did not create a
newly recognized right. The court also concluded that neither
Hurst nor Ring were retroactive on collateral review. Identical
orders were filed in each case. Lotter, in turn, filed a timely
appeal in each case, and those appeals have been docketed in
this court as cases Nos. S-17-1126, S-17-1127, and S-17-1129
(second appeal).
On our own motion, we consolidated the appeals in the first
appeal with the appeals in the second appeal for purposes of
oral argument and disposition.
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STATE v. LOTTER
Cite as 301 Neb. 125
III. ASSIGNMENTS OF ERROR
In the first appeal, Lotter assigns that the district court erred
in (1) finding that claim 2 was procedurally defaulted, (2)
finding that the postconviction motion could not be amended,
and (3) determining the merits of claim 2 and claim 3 without
an evidentiary hearing.
In the second appeal, Lotter assigns no error to an action
by the district court. Rather, he assigns that (1) the Nebraska
capital sentencing scheme violates Hurst and the 6th and 14th
Amendments, (2) Nebraska’s capital sentencing scheme allow-
ing a three-judge panel to impose a death sentence violates
the 8th Amendment, and (3) this court has jurisdiction over
Lotter’s appeal from the denial of claim 2 and claim 3.
IV. STANDARD OF REVIEW
[1] Determination of a jurisdictional issue which does not
involve a factual dispute is a matter of law which requires an
appellate court to reach its conclusions independent from a
trial court.24
[2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. When reviewing a
question of law, an appellate court resolves the question inde-
pendently of the lower court’s conclusion.25
V. ANALYSIS
1. Jurisdiction in
First A ppeal
We begin by addressing the jurisdictional issue raised by the
State in its motion for summary dismissal. The State claimed
that Lotter’s appeal from the denial of claim 2 was untimely
and that his notice of appeal from the denial of his motion to
amend to add claim 3 was premature. Thus, the State contends
that we lack jurisdiction over the first appeal.
24
State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018).
25
State v. McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018).
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(a) General Principles
[3-6] For an appellate court to acquire jurisdiction of an
appeal, there must be a final judgment or final order entered
by the tribunal from which the appeal is taken.26 It is well
established that within a postconviction 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.27 An order denying a postconvic-
tion claim is appealable even when the court reserves ruling
on other claims.28 It is appealable because an order overrul-
ing 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).29
[7-9] A party has 30 days from the entry of a judgment or
final order to appeal the decision of a district court unless a
party has filed a timely motion which terminates the appeal
period.30 A motion for reconsideration is the functional equiva-
lent of a motion to alter or amend a judgment, which termi-
nates the period in which a party must file a notice of appeal.31
In cases involving a motion to alter or amend a judgment, a
critical factor is whether the motion was filed within 10 days
of the final order, because a timely motion terminates the time
for filing a notice of appeal.32
26
State v. Hudson, 273 Neb. 42, 727 N.W.2d 219 (2007).
27
See, State v. Determan, 292 Neb. 557, 873 N.W.2d 390 (2016); State v.
Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014); State v. Robinson, 287
Neb. 606, 843 N.W.2d 672 (2014); State v. Timmens, 282 Neb. 787, 805
N.W.2d 704 (2011); State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832
(2011); State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004).
28
See, State v. Determan, supra note 27; State v. Silvers, 255 Neb. 702, 587
N.W.2d 325 (1998).
29
See State v. Hudson, supra note 26.
30
See Neb. Rev. Stat. § 25-1912 (Reissue 2016).
31
See Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284
(2017).
32
See Fitzgerald v. Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013).
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(b) Lotter’s Arguments
Lotter advances two reasons to support his contention that
his appeal as to the denial of claim 2 was timely. He also
argues that we have jurisdiction over claim 3. We address the
arguments separately.
(i) Motion Was Not Timely
[10] Lotter’s motion, filed 13 days after the district court
denied Lotter’s claim 2, did not terminate or extend the time
to appeal that denial. A motion for reconsideration does not
terminate the time for appeal and is considered nothing more
than an invitation to the court to consider exercising its inher-
ent power to vacate or modify its own judgment.33 In some
contexts, a motion for reconsideration may also be treated as a
motion to alter or amend a judgment for purposes of terminat-
ing the appeal period under Neb. Rev. Stat. § 25-1329 (Reissue
2016).34 In order to qualify for treatment as a motion to alter
or amend a judgment, a motion must be filed no later than 10
days after the entry of judgment, as required under § 25-1329,
and must seek substantive alteration of the judgment.35 Here,
the motion did not terminate the time for an appeal, whether
characterized as a motion for reconsideration (which does not
terminate the time for appeal) or a motion to alter of amend
(which must be filed within 10 days in order to terminate the
appeal time).
Lotter contends that his motion was timely under the cir-
cumstances. He asserts that when the court advised him to file
a motion for reconsideration, the court enlarged the time for
filing the motion for reconsideration as authorized under Neb.
Ct. R. Pldg. § 6-1106(b)(1). Lotter quotes the following part of
§ 6-1106(b):
33
See Kinsey v. Colfer, Lyons, 258 Neb. 832, 606 N.W.2d 78 (2000).
34
County of Douglas v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 501,
894 N.W.2d 308 (2017).
35
State v. Bellamy, 264 Neb. 784, 652 N.W.2d 86 (2002).
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When by these rules or by a notice given thereunder or by
order of court an act is required or allowed to be done at
or within a specified time, the court for cause shown may
at any time in its discretion (1) with or without motion
or notice order the period enlarged if request therefor is
made before the expiration of the period originally pre-
scribed or as extended by a previous order[.]
But we conclude the rule is inapplicable for two primary
­reasons.
[11] First, the rule of pleading that Lotter relies upon does
not apply to this proceeding. Postconviction proceedings are
not governed by the Nebraska Court Rules of Pleading in
Civil Cases.36
[12,13] Second, even if the rule did apply, the pertinent
statute does not allow for an extension of time. Lotter’s dis-
cussion of the rule omitted the portion of § 6-1106(b) stating
that “[t]he court may not extend the time for taking any action
specified in any statute, except to the extent and under the
conditions stated in the statutes.” Section 25-1329 mandates
that “[a] motion to alter or amend a judgment shall be filed
no later than ten days after the entry of the judgment.”37 An
untimely motion to alter or amend does not terminate the time
for perfection of an appeal and does not extend or suspend the
time limit for filing a notice of appeal.38 Allowing an untimely
motion to alter or amend would have the effect of extending
the time for filing an appeal. But when the Legislature fixes
the time for taking an appeal, the courts have no power to
extend the time directly or indirectly.39
Lotter’s motion did not terminate the time for filing an
appeal from the January 17, 2017, order. The appeal time
expired 30 days after the entry of the order. Thus, the notice
36
State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).
37
§ 25-1329.
38
See Fitzgerald v. Fitzgerald, supra note 32.
39
State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998).
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of appeal filed on March 22 was not timely to challenge the
denial of claim 2.
(ii) Order Was Not New Judgment
Lotter next argues that the February 22, 2017, order sub-
stantially altered the January 17 order and constituted a new
judgment. The February order accomplished two things. First,
it denied Lotter’s motion for reconsideration of the denial of
claim 2. Second, it denied Lotter’s motion for leave to amend
his postconviction motion to add claim 3. Because Lotter filed
a notice of appeal within 30 days of that order, he contends
his appeal is timely as to both claim 2 and claim 3. We con-
sider each.
a. Claim 2
Lotter claims that the February order substantively altered
its previous order, because it ruled on the merits of claim 2.
The court stated that it denied claim 2 “for reasons set out
in its January 17 . . . order” and that it denied the motion for
reconsideration of that ruling. Thus, the February order did not
alter the court’s reasons for its denial of claim 2. To the extent
the court discussed whether claim 2 had any merit, it did so
in the context of ruling on the motion for leave to amend to
add claim 3. We conclude Lotter’s appeal as to claim 2 was
not timely. The court’s February order, which denied Lotter’s
untimely motion to alter or amend the judgment, was itself not
an appealable order.40
b. Claim 3
Lotter also argues that we have jurisdiction over claim 3, the
claim that the court denied leave to add. To the extent his argu-
ment applies to the first appeal, we disagree.
[14] An order ruling on a motion filed in a pending post-
conviction case seeking to amend the postconviction motion
to assert additional claims is not a final judgment and is not
40
See Mason v. Cannon, 246 Neb. 14, 516 N.W.2d 250 (1994).
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appealable under § 29-3002.41 We have explained that the
overruling of a motion for leave to amend in order to add a
claim is not a ruling on the merits of the proposed claim, but,
rather, is an order precluding the assertion of an additional
claim.42 At the time the court denied leave to amend, Lotter’s
claim 1 remained pending. Under the general rule, the denial of
Lotter’s motion to amend was not a final judgment.
Lotter also argues that we have jurisdiction because the
district court ruled on the merits of claim 3. In declining to
allow the motion for leave to amend, the court provided three
reasons. The first reason was that the motion to amend was
filed after the court already denied claim 2. Second, the court
stated that claim 3 would be time barred. Third, the court stated
that claim 3 was a “derivative claim” based on claim 2 and that
the court could have easily denied claim 2 on its merits. But
the court’s discussion touching on the merits of claim 2 and,
thus, claim 3 was mere surplusage. After the court determined
that claim 2 was procedurally barred, it was unnecessary for
the court to engage in any further analysis as to whether the
claim would otherwise have merit. This surplusage does not
create jurisdiction.
[15] Lotter argues that we have jurisdiction because his
premature notice of appeal as to claim 3 related forward to the
date of entry of the final judgment. But this argument depends
upon Lotter’s assertion that the court decided the merits of
claim 3. It is true that § 25-1912(2) provides:
A notice of appeal or docket fee filed or deposited after
the announcement of a decision or final order but before
the entry of the judgment, decree, or final order shall be
treated as filed or deposited after the entry of the judg-
ment, decree, or final order and on the date of entry.
However, “to trigger the savings clause for premature notices
of appeal under § 25-1912(2), an announcement must pertain
41
State v. Hudson, supra note 26.
42
See id.
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to a decision or order that, once entered, would be final and
appealable.”43 Because the court did not reach the merits of
claim 3, its February 22, 2017, order did not announce a “deci-
sion or final order” within the meaning of § 25-1912(2).
At this point, we recognize that our analysis in State v.
Robertson 44 does not directly apply in this situation. There, the
court considered amendment in the context of a timely filed
motion to alter or amend a judgment. Moreover, the motion
there was filed after an order disposing of all of the defend­
ant’s postconviction claims, all of which were premised on
ineffective assistance of counsel. Here, Lotter’s motion for
leave to amend was filed in connection with a motion that
could not be considered as a timely motion to alter or amend
a judgment. Further, claim 1 remained pending. Under this cir-
cumstance, the general rule applies. It necessarily follows that
our jurisdiction regarding the denial of amendment to assert
claim 3 lies only in the context of the second appeal following
the entry of judgment disposing of claim 1.
For all of the above reasons, we lack jurisdiction over the
first appeal. Therefore, we do not consider any arguments
directed to the merits of claim 2.
2. Second A ppeal
(a) Refusal to Allow
Addition of Claim 3
Our disposition of the first appeal naturally leads to the
conclusion that in the second appeal, we have jurisdiction of
the denial of leave to amend to add claim 3. But in Lotter’s
appellate brief, he did not assign error to the denial of that
motion. As we have said many times, an alleged error must be
both specifically assigned and specifically argued in the brief
of the party asserting the error to be considered by an appellate
43
Lindsay Internat. Sales & Serv. v. Wegener, 297 Neb. 788, 795, 901
N.W.2d 278, 282 (2017).
44
State v. Robertson, supra note 36.
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court.45 Because Lotter’s brief in the second appeal failed to
assign error to the denial of the motion for leave to amend, we
decline to address the argument.
(b) Merits of Claim 1
The crux of the second appeal concerns the district court’s
denial of claim 1. Lotter argues that Nebraska’s capital sen-
tencing scheme is unconstitutional under the 6th, 8th, and 14th
Amendments to the U.S. Constitution and under Hurst. But
we will not resolve his arguments if his motion is time barred
under § 29-3001(4).
[16] 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.46 The triggering events are:
(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[.]47
Lotter claims that his motion is not time barred, because
it was filed within 1 year of the Hurst decision. Thus,
45
See State v. McGuire, supra note 25.
46
State v. Harrison, 293 Neb. 1000, 881 N.W.2d 860 (2016).
47
§ 29-3001(4).
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Lotter appears to be relying on the triggering event found
in § 29-3001(4)(d). But Hurst will save Lotter’s otherwise
untimely motion only if it initially recognized a constitutional
claim and that newly recognized right is applicable retroac-
tively to cases on collateral review. And his argument based
on the Eighth Amendment can be timely only to the extent it
is based on Hurst.
[17] We do not read Hurst as announcing a new rule of law.
Rather, Hurst applied the analysis of Ring to Florida’s sentenc-
ing scheme. In the introductory paragraph of Hurst, the Court
stated that Florida’s sentencing scheme was unconstitutional
because: “The Sixth Amendment requires a jury, not a judge,
to find each fact necessary to impose a sentence of death.
A jury’s mere recommendation is not enough.”48 The Court
stated that it “granted certiorari to resolve whether Florida’s
capital sentencing scheme violates the Sixth Amendment in
light of Ring.”49 It later declared that “[t]he analysis the Ring
Court applied to Arizona’s sentencing scheme applies equally
to Florida’s.”50 The Hurst Court stated, “In light of Ring,
we hold that [the defendant’s] sentence violates the Sixth
Amendment.”51 And the Court overruled two of its prior deci-
sions “to the extent they allow a sentencing judge to find an
aggravating circumstance, independent of a jury’s factfind-
ing, that is necessary for imposition of the death penalty.”52
The opinion concluded by stating that “Florida’s sentencing
scheme, which required the judge alone to find the existence of
an aggravating circumstance, is therefore unconstitutional.”53
In our view, Hurst merely applied Ring and did not set forth a
new rule of law for sentencing.
48
Hurst v. Florida, supra note 1, 136 S. Ct. at 619.
49
Id., 136 S. Ct. at 621.
50
Id., 136 S. Ct. at 621-22.
51
Id., 136 S. Ct. at 622.
52
Id., 136 S. Ct. at 624.
53
Id.
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We are not persuaded by Lotter’s and amici’s attempt to
distinguish Hurst from Ring. Lotter and amici contend that
Ring was limited to the Sixth Amendment jury trial right and
identity of the fact finder, while Hurst also implicates the proof
beyond a reasonable doubt requirement. Lotter maintains that
Hurst clarified the weighing of facts in aggravation and mitiga-
tion must be made by a jury. Lotter and amici read too much
into Hurst.
[18] The analysis in Hurst made fleeting references to the
burden of proof and weighing of aggravating and mitigating
circumstances. The analysis began by citing Alleyne v. United
States54 for the proposition that the Sixth Amendment right
to trial by jury, “in conjunction with the Due Process Clause,
requires that each element of a crime be proved to a jury
beyond a reasonable doubt.”55 Then, in rejecting an argument
made by Florida, the Court recognized that under the Florida
sentencing statute, “[t]he trial court alone must find ‘the facts
. . . [t]hat sufficient aggravating circumstances exist’ and ‘[t]hat
there are insufficient mitigating circumstances to outweigh the
aggravating circumstances.’”56 We cannot transform these iso-
lated references in the majority’s analysis into a holding that
a jury must find beyond a reasonable doubt that the aggravat-
ing circumstances outweigh the mitigating circumstances. The
Hurst Court said no such thing. “Constitutional rights are not
defined by inferences from opinions which did not address the
question at issue.”57 Like Ring, the Hurst decision focused on
the jury’s role in finding an aggravating circumstance. Later,
the author of Hurst essentially said as much: “In Hurst v.
Florida, . . . we held that process, ‘which required the judge
54
Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314
(2013).
55
Hurst v. Florida, supra note 1, 136 S. Ct. at 621.
56
Id., 136 S. Ct. at 622 (emphasis in original).
57
Texas v. Cobb, 532 U.S. 162, 169, 121 S. Ct. 1335, 149 L. Ed. 2d 321
(2001).
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alone to find the existence of an aggravating circumstance,’ to
be unconstitutional.”58
Most federal59 and state60 courts agree that Hurst did not
hold a jury must find beyond a reasonable doubt that the
aggravating factors outweigh the mitigating circumstances.
The 10th Circuit aptly observed: “[T]he Supreme Court’s
holding in Hurst only referenced the [finding of aggravating
circumstances] . . . . The Court thus did not address whether
the second of the required findings—that mitigating circum-
stances do not outweigh the aggravating circumstances—is
also subject to Apprendi’s rule.”61 This view is not universal.62
One opinion expressing a contrary view called the meaning
of Hurst “contestable.”63 But we see no ambiguity. The plain
language of Hurst reveals no holding that a jury must find
beyond a reasonable doubt that the aggravating factors out-
weigh the mitigating circumstances. And this court has previ-
ously concluded that neither Apprendi nor Ring require that
the determination of mitigating circumstances, the balancing
58
Truehill v. Florida, ___ U.S. ___, 138 S. Ct. 3, 4, 199 L. Ed. 2d 272
(2017) (Sotomayor, J., dissenting from denial of certiorari; Ginsburg and
Breyer, JJ., join).
59
See, Underwood v. Royal, 894 F.3d 1154 (10th Cir. 2018); Runyon
v. U.S., 228 F. Supp. 3d 569 (E.D. Va. 2017); Garza v. Ryan, No.
CV-14-01901-PHX-SRB, 2017 WL 105983 (D. Ariz. Jan. 11, 2017)
(unpublished decision).
60
See, e.g., Ex Parte Bohannon, 222 So. 3d 525 (Ala. 2016), cert. denied
___ U.S. ___, 137 S. Ct. 831, 197 L. Ed. 2d 72 (2017); Leonard v. State,
73 N.E.3d 155 (Ind. 2017); Evans v. State, 226 So. 3d 1 (Miss. 2017), cert.
denied ___ U.S. ___, 138 S. Ct. 2567, ___ L. Ed. 2d ___ (2018); Jeremias
v. State, 412 P.3d 43 (Nev. 2018); State v. Mason, No. 2017-0200, slip op.
2018 Ohio 1462, 2018 WL 1872180 (Ohio Apr. 18, 2018).
61
Underwood v. Royal, supra note 59, 894 F.3d at 1184.
62
See, e.g., Rauf v. State, 145 A.3d 430 (Del. 2016); Smith v. Pineda, No.
1:12-cv-196, 2017 WL 631410 (S.D. Ohio Feb. 16, 2017) (unpublished
decision).
63
Rauf v. State, supra note 62, 145 A.3d at 435 (Strine, C.J., concurring;
Holland and Seitz, JJ., join).
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function, or the proportionality review be undertaken by
a jury.64
[19] Even if we found that Hurst did announce a new law,
it would not apply retroactively to Lotter. As we concluded
above, Hurst merely applied Ring. And it is well established
that Ring does not apply retroactively to cases on collateral
review. The U.S. Supreme Court declared that “Ring announced
a new procedural rule that does not apply retroactively to cases
already final on direct review.”65 And in one of Lotter’s previ-
ous postconviction appeals, we explained in great detail why
Ring did not apply retroactively to his case.66
Likewise, Hurst has no retroactive application to cases on
collateral review. Because Hurst is tethered to Ring, we see
no reason why Hurst would apply retroactively on collateral
review when Ring does not. In considering an identical issue
raised in Lotter’s petition for habeas corpus, the Nebraska
federal district court reached the same conclusion.67 Lotter
appealed that decision, but the Eighth Circuit denied his appli-
cation for a certificate of appealability 68 and the U.S. Supreme
Court denied his petition for certiorari.69 We observe that
several federal circuit courts of appeal have found that Hurst
does not apply retroactively to cases on collateral review.70
64
See State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
65
Schriro v. Summerlin, 542 U.S. 348, 358, 124 S. Ct. 2519, 159 L. Ed. 2d
442 (2004).
66
State v. Lotter, supra note 4.
67
Lotter v. Britten, 4:04CV3187, 2017 WL 744554 (D. Neb. Feb. 24, 2017)
(unpublished decision).
68
Lotter v. Britten, case No. 17-2000, 2017 WL 5015176 (8th Cir. July 31,
2017) (unpublished decision).
69
Lotter v. Frakes, ___ U.S. ___, 138 S. Ct. 926, 200 L. Ed. 2d 205 (2018).
70
See, Rhines v. Young, 899 F.3d 482 (8th Cir. 2018); In re Coley, 871 F.3d
455 (6th Cir. 2017); Ybarra v. Filson, 869 F.3d 1016 (9th Cir. 2017);
Lambrix v. Secretary, Florida Dept. of Corrections, 851 F.3d 1158 (11th
Cir. 2017), cert. denied ___ U.S. ___, 138 S. Ct. 217, 199 L. Ed. 2d 142;
In re Jones, 847 F.3d 1293 (10th Cir. 2017).
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Other federal courts agree.71 Most state courts have reached
the same conclusion.72 And we are not swayed by Delaware’s
decision to give retroactive effect to Rauf v. State,73 its opinion
interpreting Hurst.74
Although Lotter filed his motion for postconviction relief
within 1 year of the Hurst decision, that decision is not
a “newly recognized right [that] has been made applicable
retroactively to cases on postconviction collateral review.”75
Accordingly, Lotter’s claim 1 is time barred.
VI. CONCLUSION
We conclude that we lack jurisdiction over Lotter’s first
appeal. Because we agree with the district court that the
claim raised in Lotter’s second appeal is barred by the limita-
tion period set forth in § 29-3001 and that subsection (4)(d)
does not extend the limitation period, we affirm the court’s
decision.
A ppeals in Nos. S-17-325, S-17-338, and
S-17-339 dismissed.
Judgment and final order in Nos. S-17-1126,
S-17-1127, and S-17-1129 affirmed.
Miller-Lerman and Freudenberg, JJ., not participating.
71
See, Taylor v. Dunn, No. 14-0439-WS-N, 2018 WL 575670 (S.D.
Ala. Jan. 25, 2018) (unpublished decision); Styers v. Ryan, No.
CV-12-02332-PHX-JAT, 2017 WL 3641454 (D. Ariz. Aug. 24, 2017)
(unpublished decision); Gapen v. Robinson, No. 3:08-cv-280, 2017 WL
3524688 (S.D. Ohio Aug. 15, 2017) (unpublished decision).
72
See, Reeves v. State, 226 So. 3d 711 (Ala. Crim. App. 2016), cert. denied
___ U.S. ___, 138 S. Ct. 22, 199 L. Ed. 2d 341 (2017); Hitchcock v.
State, 226 So. 3d 216 (Fla. 2017), cert. denied ___ U.S. ___, 138 S. Ct.
513, 199 L. Ed. 2d 396; State v. Jackson, No. 2017-T-0041, slip op. 2018
Ohio 2146, 2018 WL 2676465 (Ohio App. June 4, 2018) (unpublished
decision).
73
Rauf v. State, supra note 62.
74
See Powell v. Delaware, 153 A.3d 69 (Del. 2016).
75
§ 29-3001(4)(d).