State v. Hill

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/09/2021 08:08 AM CDT
- 511 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511State of Nebraska, appellee,
v. Teon D. Hill, appellant.
___ N.W.2d ___
Filed February 26, 2021. No. S-20-429.
1. Criminal Law: Motions for New Trial: Evidence: Appeal and Error.
A de novo standard of review applies when an appellate court is review-
ing a trial court’s dismissal of a motion for a new trial under Neb.
Rev. Stat. § 29-2102(2) (Reissue 2016) without conducting an eviden-
tiary hearing.
2. Criminal Law: Motions for New Trial: Evidence. Neb. Rev. Stat.
§ 29-2102 (Reissue 2016) sets out what evidence must accompany a
motion for new trial.
Appeal from the District Court for Douglas County:
Kimberly Miller Pankonin, Judge. Affirmed.
Gregory A. Pivovar for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Miller-Lerman, J.
NATURE OF CASE
Teon D. Hill appeals the order of the district court for
Douglas County which dismissed his motion for new trial
based on newly discovered evidence. We affirm.
- 512 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511STATEMENT OF FACTS
Following a jury trial in 2016, Hill was convicted of first
degree murder and two counts of possession of a deadly weapon
by a prohibited person. The district court sentenced Hill to
imprisonment for life for the murder conviction and to 15 to 20
years’ imprisonment for each of the weapon convictions. The
court ordered the sentences for the weapon convictions to be
served concurrently with one another and consecutively to the
sentence for the murder conviction. We affirmed Hill’s convic-
tions and sentences in a decision filed January 19, 2018. State
v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018).
On January 16, 2019, Hill filed a pro se motion that he titled
“Motion for New Trial.” In the motion, Hill stated that he was
moving for a new trial based on “errors in the proceedings.” He
referred to the new trial statutes, Neb. Rev. Stat. §§ 29-2101through 29-2103 (Reissue 2016), and stated that the statutes
allow a defendant to bring a motion for new trial based upon
newly discovered evidence within 5 years of the date of the
verdict. Section 29-2101 provides that a defendant may move
for a new trial on certain specified grounds, including “(5)
newly discovered evidence material for the defendant which
he or she could not with reasonable diligence have discovered
and produced at the trial.” Section 29-2103(3) provides that
for most of the grounds listed in § 29-2101, the motion must
be filed within 10 days after the verdict, but § 29-2103(4) pro-
vides that a motion for new trial based on § 29-2101(5) “shall
be filed within a reasonable time after the discovery of the new
evidence” and generally “cannot be filed more than five years
after the date of the verdict.”
The motion filed by Hill was 58 pages long, with 60 pages
of attachments. The motion contained a narrative consisting of
over 100 paragraphs of allegations. The first several paragraphs
contained general allegations of various “irregularities” in the
proceedings, as well as “ineffective assistance of counsel”
and “prosecutorial misconduct” that, Hill contended, entitled
him to a new trial. He also claimed that “the verdict cannot
- 513 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511be sustained by sufficient evidence and is contrary to the
law.” Hill alleged that “the material for his defense is newly
discovered evidence that could not have been discovered, with
reasonable diligence, prior to the time of his trial.” He further
alleged that “all facts in this motion was [sic] only discovered
once he was able to examine the documents which was [sic]
received on March 10th 2018 long after his trial.” The remain-
ing paragraphs included numerous allegations, some of which
he grouped in categories, including “due process rights were
violated,” “irregularities and misconduct before, during and
after the proceedings,” and “[a]ctual innocent [sic] claim[s].”
None of the attachments were “in the form of affidavits, depo-
sitions, or oral testimony,” in violation of § 29-2102(1).
On February 18, 2019, the district court entered an order in
which it directed the State to file a response to Hill’s motion
for new trial within 90 days. Hill objected to the order and
­contended that the new trial statutes do not allow for a response
by the State before the court has decided whether the motion
warrants a hearing and that instead, the statutes provide that the
motion is to be served on the prosecuting attorney only after
the court has determined that a hearing on the motion should
be granted. The court overruled Hill’s objection and reasoned
that the new trial statutes did not prohibit the court from seek-
ing a response from the State before it ruled on whether Hill’s
motion set forth sufficient facts to warrant a hearing. The court
stated that its order was not made pursuant to procedure out-
lined in the statutes, but instead pursuant to its “inherent power
to request legal argument from a party on a pending motion
before it.”
On May 21, 2019, the State filed a response in which it
argued that Hill’s motion failed to set forth sufficient facts
and should therefore be dismissed without a hearing pursu-
ant to § 29-2102(2). The State contended that Hill’s motion
could “be viewed as a complaint as to how his trial was
handled” and noted that “the vast majority of paragraphs in the
motion start out with the phrase ‘there was irregularities and
- 514 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511misconduct in the proceedings.’” The State further contended
that there was not “any newly discovered evidence mentioned
in the motion,” and it argued that to the extent Hill referred to
any sort of evidence, such evidence (1) would be inadmissible
at trial based on hearsay or relevance, (2) could have been
discovered at the time of trial, and (3) did not materially affect
substantial rights of Hill because it would not have changed
the result of the case. The State further contended that to the
extent Hill set forth a claim of actual innocence, such a claim
must be asserted in a postconviction motion rather than in a
motion for new trial.
About 1 year later, on May 14, 2020, the court entered an
order in which it dismissed Hill’s motion for new trial. The
court stated that Hill sought a new trial based on newly dis-
covered evidence pursuant to § 29-2101(5) and that he also
appeared to seek relief pursuant to a claim of actual inno-
cence. The court’s order replicated the argument in the State’s
response with minor revisions.
Hill appeals the district court’s order which dismissed his
motion. Hill, who appeared pro se in the district court, is rep-
resented by counsel on appeal.
ASSIGNMENTS OF ERROR
Hill claims, restated and renumbered, that the district court
erred when it (1) failed to treat his motion as a postconvic-
tion motion and to consider his claims, including those of
actual innocence, as postconviction claims; (2) ordered the
State to respond to his motion and 1 year later used the State’s
response, with minimal modifications, as its order overruling
his motion; and (3) dismissed his motion for new trial based
on newly discovered evidence without an evidentiary hearing.
STANDARD OF REVIEW
[1] A de novo standard of review applies when an appel-
late court is reviewing a trial court’s dismissal of a motion
for a new trial under § 29-2102(2) without conducting an
- 515 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511evidentiary hearing. See State v. Cross, 297 Neb. 154, 900
N.W.2d 1 (2017).
ANALYSIS
In his brief on appeal, Hill asserts that several allegations
in his motion set forth proper claims for new trial based on
newly discovered evidence and that the district court erred
when it dismissed his motion without an evidentiary hearing.
However, Hill appears to concede that most of the numerous
allegations set forth in his motion were more appropriate for
a motion for postconviction relief. He therefore contends that
the district court should have treated his motion as a motion
for postconviction relief and considered whether his motion
set forth postconviction claims that warranted an eviden-
tiary hearing.
Hill further contends that, to the extent the motion was
properly treated as a motion for new trial based on newly
discovered evidence pursuant to § 29-2101(5), the district
court erred when it ordered the State to respond to his motion
before the court had determined whether an evidentiary hearing
was warranted. In this regard, Hill argues that the order was
improper because it was not authorized by the new trial stat-
utes. He also contends that the court “abrogat[ed]” its decision­
making authority to the State because it used most of the
language from the State’s response to draft its order dismissing
his motion.
As discussed below, we resolve Hill’s claims of error as
follows: First, we determine that rather than treating Hill’s
motion as a postconviction motion, the district court did
not err when it treated his motion consistent with the man-
ner by which Hill had denominated the pleading, that is as a
motion for new trial based on newly discovered evidence. We
next determine, based on our de novo review, that because
Hill failed to provide the supporting documents required by
§ 29-2102(1), the court properly dismissed the motion pur-
suant to § 29-2102(2). Finally, because our de novo review
- 516 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511indicates that the district court did not err when it dismissed
Hill’s motion, we need not address the contentions Hill makes
regarding the process used by the district court except to com-
ment on the lengthy amount of time the court had the motion
under submission.
District Court Did Not Err When It Treated Hill’s
Motion as Motion for New Trial Rather Than
Motion for Postconviction Relief.
Hill claims that the district court erred when it failed to treat
his pleading as a motion for postconviction relief and failed
to review his allegations, including those of actual innocence,
as postconviction claims. He argues that the court should have
looked to the substance of his allegations rather than the form
of the motion. We conclude that the district court did not err
when it treated his motion consistent with the manner by which
Hill denominated the pleading, that is as a motion for new trial
based on newly discovered evidence.
Hill asserts in his brief that the motion he filed is “basically
a motion for Post-conviction relief with a few issues of Motion
for a New Trial, newly discovered evidence thrown in and a
healthy dose of issues that lean toward [his] actual innocence.”
Brief for appellant at 32. With regard to his allegations of
actual innocence, Hill argues that because his motion “is more
or less in the form of ” a postconviction motion, his “claims of
actual innocence are more or less brought in a postconviction
action.” Id. at 38-39.
The motion filed by Hill was titled “Motion for New Trial”
and referenced the new trial statutes, including § 29-2101(5)
regarding motions for trial based on newly discovered evi-
dence and § 29-2103(4), which provides the time for filing a
motion for new trial based on newly discovered evidence. The
motion did not include citation to the postconviction statutes,
Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016), and it did not
include an express assertion that Hill was seeking relief under
such statutes or that he had filed his motion within the time
allowed for filing a motion for postconviction relief.
- 517 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511Despite the fact that Hill explicitly characterized his motion
as a motion for new trial, he argues on appeal that the district
court should have ignored his characterization, reviewed the
motion for its substance, and treated the motion as a motion
for postconviction relief. Hill relies on State v. Bellamy, 264
Neb. 784, 652 N.W.2d 86 (2002), to argue that a “post judg-
ment motion must be reviewed based on the relief sought and
not based on its title.” Brief for appellant at 31. We reject
Hill’s argument.
In State v. Bellamy, supra, we considered a jurisdictional
question regarding whether the 30-day period to file a notice
of appeal was terminated by a motion that the appellant titled
“Motion for Reconsideration.” See Neb. Rev. Stat. § 25-1912(Cum. Supp. 2020). Under the relevant statutes, the running of
the time for filing a notice of appeal may be terminated by the
filing of certain motions, including, inter alia, a motion to alter
or amend a judgment under Neb. Rev. Stat. § 25-1329 (Reissue
2016). The question in State v. Bellamy, supra, therefore was
whether the motion titled “Motion for Reconsideration” should
be treated as a motion to alter or amend a judgment for pur-
poses of determining the time for filing a notice of appeal.
We reasoned that “[a] determination as to whether a motion,
however titled, should be deemed a motion to alter or amend
a judgment depends upon the contents of the motion, not its
title,” and we held that “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.” State v. Bellamy, 264 Neb. at 789, 652 N.W.2d
at 90.
The holding in State v. Bellamy, supra, should be read as
specifically related to determining whether a motion may be
considered a motion to alter or amend a judgment for purposes
of determining the time to file a notice of appeal. It should
not be read as a general requirement that a court must review
every filing to address whether the party filed the correct type
- 518 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511of motion or whether the party should have filed a different
motion to achieve the result the party seeks. Hill simply reads
State v. Bellamy, supra, too broadly.
We further note that in this case, it was not merely the title
which indicated that Hill’s filing should be reviewed as a
motion for new trial. The motion contained various references
to the new trial statutes and various allegations which indicated
that Hill was seeking a new trial based on newly discovered
evidence pursuant to § 29-2101(5). Therefore, the substance
of the motion supported the title “Motion for New Trial” and
specified the relevant statutory authority for such a motion.
Although the motion also included allegations that might have
been better suited to a motion for postconviction relief, the
district court was not obligated to read such allegations to con-
tradict Hill’s characterization of the type of motion he wished
to file or the authority for the relief he sought.
Although we conclude that the district court properly treated
Hill’s motion as a motion for new trial rather than as a
motion for postconviction relief, we note the following: First,
a motion for postconviction relief is required to be verified,
see § 29-3001(1), and Hill’s motion is not verified and there-
fore would properly have been dismissed for that reason.
Second, to the extent Hill contends that his motion contains
both claims appropriate for a motion for new trial and claims
appropriate for a motion for postconviction relief, we note
that § 29-3003 provides that the postconviction remedy “is
not intended to be concurrent with any other remedy exist-
ing in the courts of this state” and that “[a]ny proceeding
filed under the provisions of sections 29-3001 to 29-3004
which states facts which if true would constitute grounds
for relief under another remedy shall be dismissed without
prejudice.” See, also, State v. Harris, 292 Neb. 186, 191, 871
N.W.2d 762, 766 (2015) (“postconviction remedy is clearly
a cumulative remedy that may not be pursued concurrently
with any other remedy existing under state law, including
the remedies sought in a motion for new trial”). Thus, Hill’s
- 519 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511postconviction claims, if any, were not subject to consideration
in this action.
We conclude that the district court did not err when it treated
Hill’s motion as a motion for new trial based on newly discov-
ered evidence rather than treating it as a motion for postconvic-
tion relief. We reject this assignment of error, and we turn to
Hill’s assignments of error regarding the district court’s dispo-
sition of the motion for new trial.
Hill Failed to Include Required Supporting
Documents With Motion for New Trial and
Therefore Dismissal of Motion Without
Evidentiary Hearing Was Warranted.
Hill claims that the district court erred when it dismissed
his motion for new trial without an evidentiary hearing and,
further, that the court made procedural errors in the manner
by which it reached this conclusion. Hill specifically asserts
that the court erred when it ordered the State to respond to his
motion and later when it used the State’s response as the basis
for its order dismissing the motion. On appeal from an order
dismissing a motion for new trial without an evidentiary hear-
ing pursuant to § 29-2102(2), we apply a de novo standard of
review to such dismissal. See State v. Cross, 297 Neb. 154,
900 N.W.2d 1 (2017). If our de novo review indicates that
the motion was properly dismissed, an error in the procedure
by which the district court reached its decision will not have
prejudiced Hill and would not require reversal of the dis-
missal. Therefore, we conduct our de novo review of the dis-
missal before addressing Hill’s claims related to the procedure
employed by the district court.
As we discussed above, Hill appears to concede that most of
the allegations in his motion are more appropriately addressed
in a motion for postconviction relief than in a motion for
new trial based on newly discovered evidence. However, Hill
asserts on appeal that several allegations in his motion set forth
grounds for new trial based on newly discovered evidence and
urges us to consider them on that basis.
- 520 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511[2] Section 29-2101 provides several grounds for a new trial,
and specifically, subsection (5) provides that a new trial may be
granted based on “newly discovered evidence material for the
defendant which he or she could not with reasonable diligence
have discovered and produced at the trial.” Procedural require-
ments for motions for new trial authorized by § 29-2101 are set
forth in §§ 29-2102 and 29-2103. Section 29-2103(2) provides
that a “motion for a new trial shall state the grounds under
section 29-2101 which are the basis for the motion and shall
be supported by evidence as provided in section 29-2102.”
Section 29-2102(1) in turn provides in part that the “ground set
forth in subdivision (5) of section 29-2101 shall be supported
by evidence of the truth of the ground in the form of affidavits,
depositions, or oral testimony.” Reading these statutes together,
we have stated that § 29-2102 “sets out what evidence must
accompany a motion for new trial.” State v. Cross, 297 Neb. at
158, 900 N.W.2d at 4.
Section 29-2102(2) sets forth the circumstances under which
a court must grant a hearing on a motion for new trial, but it
also provides that “[i]f the motion for new trial and supporting
documents fail to set forth sufficient facts, the court may, on its
own motion, dismiss the motion without a hearing.” (Emphasis
supplied.) With regard to a motion for new trial pursuant to
§ 29-2101(5), the motion and supporting documents must set
forth sufficient facts to establish that there is “newly discov-
ered evidence material for the defendant which he or she could
not with reasonable diligence have discovered and produced at
the trial.”
Therefore, in this case, dismissal without an evidentiary
hearing would be appropriate if Hill’s motion and support-
ing documents did not set forth sufficient facts to establish
that there was newly discovered evidence, that such evidence
was material to Hill’s defense, and that Hill could not with
reasonable diligence have discovered and produced the evi-
dence at his trial. Reviewing the allegations in Hill’s motion
de novo, in particular the allegations that Hill argues on
- 521 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511appeal would support a new trial, we determine that Hill did
not file a motion and supporting documents that set forth suf-
ficient facts.
We have reviewed Hill’s allegations and determine that each
of Hill’s claims of grounds for new trial set forth in the motion
fails in at least one of these respects—that is, to the extent Hill
alleged sufficient facts to show that the claim involved newly
discovered evidence, he did not adequately allege facts suf-
ficient to show that such evidence was material to his defense
or to show that he could not with reasonable diligence have
discovered and produced the evidence at his trial.
However, our de novo review indicates a more basic reason
that dismissal without an evidentiary hearing was appropri-
ate in this case. As noted above, supporting documents of the
sort set forth in § 29-2102 must accompany a motion for new
trial. See State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).
Hill filed a 58-page motion with 60 pages of attachments.
The attachments included, inter alia, letters from counsel and
police reports. The attachments to the motion did not include
“evidence of the truth of the ground in the form of affidavits,
depositions, or oral testimony” as required by § 29-2102(1)
to support a motion for new trial based on § 29-2101(5). The
requirement for evidence of the truth of the asserted grounds is
not trivial; it is designed, inter alia, to demonstrate the strength
of the claim, which in turn determines entitlement to a hearing.
Thus, regardless of whether the allegations in the motion itself
set forth a narrative to establish grounds for a new trial based
on newly discovered evidence, it is clear that upon filing, Hill
failed to accompany the motion with the type of evidence
required by § 29-2102(1) to support the motion. On this basis
alone, dismissal of Hill’s motion without an evidentiary hear-
ing was appropriate.
We conclude that dismissal of Hill’s motion for new trial
based on newly discovered evidence was appropriate under
§ 29-2102(2), because he failed to include required support-
ing documents in the form of affidavits, depositions, or oral
- 522 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511testimony setting forth facts to establish the grounds alleged
in his motion. We therefore reject Hill’s claim that the district
court erred when it dismissed his motion without an eviden-
tiary hearing.
Because De Novo Review Indicates That Motion Was
Properly Dismissed, Any Error in the Procedure
by Which District Court Decided to Dismiss
Motion Did Not Prejudice Hill.
Because we conclude, based on our de novo review of the
motion for new trial, that dismissal of Hill’s motion without an
evidentiary hearing was proper without regard to the district
court’s process, any error in the procedure by which the dis-
trict court reached its decision to dismiss the motion did not
prejudice Hill. We therefore need not decide Hill’s claims that
the district court erred when it ordered the State to respond
or when it based its order of dismissal on the language of the
State’s response. We do, however, take this opportunity to
comment concerning aspects of the district court’s disposition
of Hill’s motion.
Hill claims that the district court erred when it ordered the
State to respond to his motion before the court had determined
whether a hearing was required or whether the motion should
be dismissed without an evidentiary hearing. Hill asserts that
the statutes require notice to and involvement of the State
only after the court has determined that an evidentiary hear-
ing is required. The district court overruled Hill’s objection to
soliciting the State’s views, reasoning that the statutes did not
prohibit it from requesting a response and that it was doing so
based on its inherent power.
As an additional basis for objecting to the process, Hill
maintains that the district court “abrogat[ed]” its decisionmak-
ing authority to the State. In this regard, he observes that the
court’s order dismissing his motion almost entirely repeated
the State’s response. He asserts that the court made no find-
ings of fact and that it merely “changed three words” from
the State’s response, changed the heading, and added a final
- 523 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511paragraph for what he asserts was a total of “18 words added
or changed.” Brief for appellant at 25, 26. Hill correctly notes
that the court’s order made only minimal changes to the State’s
response and that the court “took a little over a year” to rule on
the motion. Id. at 25. In its brief on appeal, the State concedes
that “[t]here can be no dispute that the district court’s order
is cribbed almost directly from the [S]tate’s response,” brief
for appellee at 7, but the State asserts that there is no author-
ity to the effect that a court must make findings of fact or
conclusions of law with respect to a motion for new trial and
that, in any event, the court’s decision to dismiss the motion
was correct.
Given our disposition of the motion, we need not resolve the
process-related claims of the parties, although we note in pass-
ing that it is not inappropriate for a court to track the language
of a party’s submission.
We further choose to comment on Hill’s argument to the
extent that he complains it took the court over 1 year to rule
on the motion with an order that basically repeated the State’s
response, and we take this opportunity to emphasize that this
court has adopted case progression standards to govern the
timely disposition of cases in the district and county courts.
We note in particular Neb. Ct. R. § 6-101 (rev. 2013), which
sets time standards for disposition of certain categories of pro-
ceedings. Of relevance to this case, § 6-101 provides that for
“Post Judgment Motions—Modification & Post Convictions,”
50 percent of such motions should be disposed in 180 days
and 95 percent should be disposed in 1 year. In the present
case, Hill filed his motion on January 16, 2019; the court
ordered the State on February 18 to respond; and the State
filed its response on May 21. Nearly 11⁄2 years after Hill filed
his motion and almost 1 year after the State filed its response,
the court dismissed Hill’s motion on May 14, 2020, without an
evidentiary hearing in an order which almost word for word
tracked the response which the court had available to it for
1 year.
- 524 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511Hill’s pro se motion was admittedly lengthy and contained
numerous attachments. However, from our de novo review, it
was readily apparent that, whatever the merit of the narrative
in the allegations in the motion, Hill had not accompanied the
motion with the supporting evidence required by § 29-2102(2).
We think that the relatively straightforward path for disposi-
tion of this motion indicates that, under our case progression
standards, this motion should have been among the 50 percent
of motions disposed in 180 days rather than the 5 percent dis-
posed in over 1 year.
CONCLUSION
We conclude that the district court did not err when it con-
sidered Hill’s motion as a motion for new trial rather than
considering it as a motion for postconviction relief. In our de
novo review, we conclude that Hill’s motion was properly dis-
missed pursuant to § 29-2102(2). We therefore affirm the dis-
trict court’s order which dismissed Hill’s motion for new trial
without an evidentiary hearing.
Affirmed.
Freudenberg, J., not participating.
Stacy, J., concurring.
I agree with the majority’s holding, but write separately to
comment on the procedure followed by the district court. In
my opinion, it is neither uncommon nor improper for a district
court, as part of its preliminary review of a motion for new
trial under § 29-2102, to ask the State to file a written response
before deciding whether to grant or deny an evidentiary hear-
ing on the motion.
According to Hill, this procedure amounts to reversible error
because it is not expressly authorized in the statutes govern-
ing motions for new trial. The majority declines to reach the
procedural issue, reasoning that Hill’s motion was properly
dismissed without a hearing, regardless of the procedure fol-
lowed. But since the procedural issue is squarely before us, I
- 525 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511see no reason to leave judges and litigants wondering whether,
in a later case, we might find it to be an abuse of discretion.
Our cases have long recognized that a district court, as
part of its preliminary review of a postconviction motion, has
discretion to adopt reasonable procedures to assist the court
in determining whether an evidentiary hearing is required. 1
Historically, courts have employed a variety of different pro-
cedures, and so long as the procedure was not contrary to the
postconviction statutory scheme, we have not found it to be an
abuse of discretion. 2 And we have specifically held that it is
not an abuse of discretion to direct the State to file a written
response before deciding whether to grant or deny an eviden-
tiary hearing on the motion. 3
Similar to the postconviction statutes, the statutes govern-
ing motions for new trial require the trial court to conduct a
preliminary review of the motion and determine whether to
grant a hearing on the motion or dismiss it without a hear-
ing. 4 In my opinion, we should acknowledge, as we have in
the postconviction context, that trial courts have discretion to
adopt reasonable procedures, not inconsistent with the statu-
tory scheme, to assist in determining whether the motion for
new trial and supporting documents “set forth facts which,
1
See, e.g., State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018); State v.
Glover, 276 Neb. 622, 756 N.W.2d 157 (2008); State v. McLeod, 274 Neb.
566, 741 N.W.2d 664 (2007); State v. Dean, 264 Neb. 42, 645 N.W.2d 528(2002); State v. Flye, 201 Neb. 115, 266 N.W.2d 237 (1978).
2
See, e.g., McLeod, supra note 1 (holding court did not abuse discretion
in directing State to file written response to postconviction motion before
ruling on whether to grant evidentiary hearing); Dean, supra note 1(holding court did not abuse discretion in holding hearing to receive
existing record and consider State’s motion to dismiss before ruling on
whether to grant evidentiary hearing). Compare Glover, supra note 1(finding abuse of discretion when court received and considered new
evidence before ruling on whether to grant evidentiary hearing).
3
See, McLeod, supra note 1; Flye, supra note 1.
4
See Neb. Rev. Stat. § 29-2102(2) (Reissue 2016).
- 526 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. HILL
Cite as 308 Neb. 511if true, would materially affect the substantial rights of the
defendant” 5 and entitle the movant to a hearing.
Here, a few weeks after Hill filed his 118-page pro se
motion, the district court entered an order directing the State
to file a written response to the motion within 90 days. The
order explained that a decision on whether to grant a hear-
ing on Hill’s motion, and whether to appoint counsel for Hill,
would be deferred pending the State’s response. This proce-
dure is not expressly outlined in the new trial statutes, but it
is not contrary to the statutory scheme and assists the court in
conducting the required preliminary review. I see no abuse of
discretion in the procedure followed by the district court in
this case.
Nor do I see error in how the court prepared its order of
dismissal. Hill complains that the court’s order was only four
pages long and generally tracked with the State’s written
response, which summarized Hill’s claims rather than address-
ing each of the more than 100 paragraphs in his motion for new
trial. But neither the length of a court’s order nor the original-
ity of its language is a reliable measure of the quality of judi-
cial decisionmaking.
The majority correctly observes that it is not inappropriate
for a court, when preparing an order, to track the language of
a party’s submission. But the majority repeats Hill’s complaint
in this regard often enough that readers might suspect there is
something to it. There is not. Judges need not reinvent the legal
wheel when issuing a decision, and it is neither remarkable nor
improper for a court to issue an order that repeats a party’s
correct analysis of the law or recitation of the facts. I firmly
reject Hill’s contention that the language of the order issued in
this case casts doubt on the court’s impartiality or suggests the
judge did not conduct an independent and thorough review of
Hill’s lengthy motion and supporting documents before issuing
its decision.
5
Id.