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Cite as 288 Neb. 797
VI. CONCLUSION
We hold that the trial court properly denied Hill’s motions
to suppress and motion in limine, and we find the evidence
sufficient to support the jury’s verdict of first degree murder.
We affirm the judgment below.
Affirmed.
State of Nebraska, appellee, v.
Brian D. Smith, appellant.
___ N.W.2d ___
Filed August 8, 2014. No. S-13-891.
1. Jurisdiction: Appeal and Error. An appellate court determines a jurisdictional
question that does not involve a factual dispute as a matter of law.
2. Judgments: Appeal and Error. When issues on appeal present questions of law,
an appellate court has an obligation to reach an independent conclusion irrespec-
tive of the decision of the court below.
3. Constitutional Law: Postconviction: Collateral Attack: Final Orders.
The Nebraska Postconviction Act is the primary procedure for bringing col-
lateral attacks on final judgments in criminal cases based upon constitu-
tional principles.
4. Postconviction: Collateral Attack. If a defendant has a collateral attack that
could be asserted under the Nebraska Postconviction Act, that act is his or her
sole remedy.
Appeal from the District Court for Washington County: John
E. Samson, Judge. Appeal dismissed.
Jeffery A. Pickens, of Nebraska Commission on Public
Advocacy, for appellant.
Jon Bruning, Attorney General, and James D. Smith and
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
In 1983, when he was 16 years old, Brian D. Smith was
convicted of burglary and kidnapping. He was sentenced to
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798 288 NEBRASKA REPORTS
life in prison for the kidnapping and to a term of 5 to 20 years’
imprisonment for the burglary. In 2013, Smith filed a motion
seeking to have his life sentence declared void and set aside
pursuant to the decision of the U.S. Supreme Court in Graham
v. Florida.1 The district court for Washington County dismissed
the motion after concluding it lacked jurisdiction to consider it.
Smith appeals from that dismissal.
BACKGROUND
In February 1983, Smith was charged in Washington County
with burglary, robbery, kidnapping, and first degree sexual
assault. Each offense was allegedly committed on or about
January 11. Following plea negotiations, Smith pled guilty
to burglary and kidnapping, and the remaining charges and a
felony murder charge pending in a separate proceeding were
dismissed. The factual basis of the charges was that Smith
broke into a doughnut shop and abducted an employee of the
shop. At the time of the plea hearing on March 21, the vic-
tim had not been found. But both the prosecutor and Smith
acknowledged that there was no reasonable probability that she
was still alive.
At the sentencing hearing on May 2, 1983, the prosecutor
advised the court that the victim’s body had been recovered.
Because then, as now, kidnapping was a Class IA felony in
the absence of statutory mitigating factors not present in this
case, the court imposed the mandatory sentence of life impris-
onment.2 The court also imposed a concurrent sentence of 5 to
20 years’ imprisonment on the burglary conviction. Smith was
16 years old when he committed his crimes and 17 years old at
the time of his sentencing.
Although Smith remains in the custody of the Nebraska
Department of Correctional Services, he is incarcerated in
Missouri pursuant to an inmate transfer. On January 3, 2013,
he filed a pro se “Motion to Correct Illegal, Unconstitutional
1
Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010).
2
See Neb. Rev. Stat. §§ 28-105 and 28-313 (Reissue 1979 & Cum. Supp.
2012).
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STATE v. SMITH 799
Cite as 288 Neb. 797
and Void Sentence” in the district court for Washington County.
In that motion, he alleged that his life sentence was “illegal,
unconstitutional, and void” under the decision of the U.S.
Supreme Court in Graham v. Florida.3 In that case, decided in
2010, the Court held that “the Constitution prohibits the impo-
sition of a life without parole sentence on a juvenile offender
who did not commit homicide.”4
After conducting an evidentiary hearing at which Smith
was represented by counsel, the district court concluded that
it lacked jurisdiction over Smith’s motion because “(1) it has
not been brought under a recognized procedure under Nebraska
law; and, (2) the sentence is currently valid and cannot be
modified, amended, or revised in any way.” Smith perfected
this timely appeal.
ASSIGNMENTS OF ERROR
Smith assigns, restated, that the district court erred in (1)
failing to find that the decision in Graham v. Florida applies
retroactively to invalidate his life sentence and (2) dismissing
his motion seeking to correct his sentence.
STANDARD OF REVIEW
[1,2] An appellate court determines a jurisdictional ques-
tion that does not involve a factual dispute as a matter of law.5
When issues on appeal present questions of law, an appellate
court has an obligation to reach an independent conclusion
irrespective of the decision of the court below.6
ANALYSIS
Before it could pass on the substantive legal issue of
whether the holding in Graham v. Florida is retroactive and
therefore applicable to Smith, the district court was required
to determine whether it had jurisdiction to do so. We therefore
3
Graham v. Florida, supra note 1.
4
Id., 560 U.S. at 82.
5
State v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014); State v.
Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011).
6
State v. Landera, 285 Neb. 243, 826 N.W.2d 570 (2013).
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800 288 NEBRASKA REPORTS
focus on that issue, which is embodied in Smith’s second
assignment of error.
[3,4] Smith’s convictions and sentences have been final for
more than 30 years. He now seeks to collaterally attack the
final judgment on the ground that his life sentence is unconsti-
tutional and therefore void under Graham v. Florida because
of his age at the time of the kidnapping. As we have recently
noted, the Nebraska Postconviction Act7 is the primary proce-
dure for bringing collateral attacks on final judgments in crimi-
nal cases based upon constitutional principles.8 If a defendant
has a collateral attack that could be asserted under the act, that
act is his or her sole remedy.9
Smith has not brought this action under the Nebraska
Postconviction Act. He acknowledges that such a claim would
be time barred under § 29-3001(4). It is precisely because
of this fact that he seeks relief under a purported common-
law remedy. He relies upon our statement in State v. Ryan10
that “a void judgment may be attacked at any time in any
proceeding.”
But that reliance is misplaced. We addressed and rejected
a similar argument in State v. Dunster.11 There, the defend
ant moved to vacate his death sentence as void based upon
changes in Nebraska’s capital sentencing statutes enacted
after his conviction and sentence became final. The defend
ant acknowledged that he did not bring the action under the
Nebraska Postconviction Act and argued that this court should
recognize a new procedure for the challenge of a purportedly
void sentence. Like Smith, he relied on the language in Ryan
stating that a void judgment may be attacked at any time
in any proceeding. We rejected this argument and declined
to recognize a new common-law procedure, explaining that
7
Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2008 & Cum. Supp. 2012)
8
State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013).
9
Id.
10
State v. Ryan, 249 Neb. 218, 230, 543 N.W.2d 128, 138 (1996), overruled
on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
11
State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005).
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Ryan and other cases stating the proposition on which he
relied were distinguishable because they “involved the use
of a legislatively authorized procedure such as a postconvic-
tion action and did not seek the recognition of a new special
proceeding.”12 We specifically declined “to extend [the lan-
guage used in Ryan] to allow the creation of new procedures,
especially when at least one existing procedure is available in
which to raise the issue.”13
Smith argues that Dunster is not controlling because at
the time it was decided, the Nebraska Postconviction Act did
not include a statute of limitations. That is factually correct;
the 1-year statute of limitations codified at § 29-3001(4) was
enacted in 2011.14 But § 29-3001(4) became effective more
than a year after the decision in Graham v. Florida, upon
which Smith bases his claim that his sentence is void. Thus,
when the basis for Smith’s current claim arose, there was no
statute of limitations for postconviction motions, as was the
case in Dunster. And in any event, Smith had considerable
time to file a postconviction motion after the enactment of the
limitation provision. Section 29-3001 provides:
(4) 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;
(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;
12
Id. at 786, 707 N.W.2d at 422.
13
Id.
14
See 2011 Neb. Laws, L.B. 137, § 1 (effective Aug. 27, 2011).
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802 288 NEBRASKA REPORTS
(d) The date on which a constitutional claim asserted
was initially recognized by the Supreme Court of the
United States or the Nebraska Supreme Court, if the
newly recognized right has been made applicable retro-
actively to cases on postconviction collateral review; or
(e) August 27, 2011.
Smith acknowledges that he “had until August 27, 2012 to file
a postconviction motion raising his Graham v. Florida claim”
and that he “missed that deadline.”15 Thus, as in Dunster,
Smith had a remedy under the Nebraska Postconviction Act.
In two cases, we have recognized a common-law remedy
to set aside a plea-based conviction where the defendant had
no remedy under the Nebraska Postconviction Act. In State
v. Ewert,16 the defendant was convicted of a drug offense
and fined but not incarcerated. He subsequently moved to
set aside the conviction on the ground that the statute which
defined the offense did not become effective until after the
alleged violation which formed the basis of the convic-
tion. No appeal had been filed, and a remedy under the
Nebraska Postconviction Act was unavailable, because the
defendant was not sentenced to imprisonment and thus was
never “in custody under sentence.”17 On these facts, we held
that the district court had jurisdiction to set aside the facially
void conviction.
More recently, in State v. Yuma,18 we held that a defend
ant who was immediately released upon sentencing, because
of credit for time served, was never “‘in custody under
sentence’”19 and therefore could file a common-law motion
to withdraw his guilty plea on the ground that his attorney
was constitutionally ineffective in failing to advise him of the
immigration consequences of his plea as required by Padilla
15
Brief for appellant at 12.
16
State v. Ewert, 194 Neb. 203, 230 N.W.2d 609 (1975).
17
§ 29-3001(1).
18
State v. Yuma, 286 Neb. 244, 835 N.W.2d 679 (2013).
19
Id. at 248, 835 N.W.2d at 683.
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STATE v. SMITH 803
Cite as 288 Neb. 797
v. Kentucky.20 Yuma was an application of the common-law
remedy we recognized in State v. Gonzalez,21 which requires
a showing that the Nebraska Postconviction Act “is not, and
never was, available as a means of asserting the ground or
grounds justifying withdrawing the plea.” As we noted in
Yuma and Gonzalez, “‘this common-law procedure exists to
safeguard a defendant’s rights in the very rare circumstance
where due process principles require a forum for the vindica-
tion of a constitutional right and no other forum is provided by
Nebraska law.’”22
Such circumstances are not present here. Smith could have
asserted his Graham v. Florida claim under the Nebraska
Postconviction Act, but failed to do so within the time lim-
its prescribed by the Legislature. Were we to recognize a
common-law remedy for the purpose of asserting time-barred
postconviction claims, we would be undermining the purpose
of the Legislature in enacting § 29-3001(4).
We note that a claim that a criminal sentence is void may
be a ground for relief in the form of a writ of habeas cor-
pus.23 Smith did not seek a writ of habeas corpus in this case,
and we therefore make no comment on his entitlement to
such relief.
We conclude that the district court did not err in determin-
ing that it lacked jurisdiction to consider Smith’s motion and
in dismissing it without reaching its merit. Because the district
court lacked jurisdiction, we similarly lack jurisdiction and
therefore dismiss the appeal.
Appeal dismissed.
20
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284
(2010).
21
State v. Gonzalez, supra note 8, 285 Neb. at 949-50, 830 N.W.2d at 511.
22
State v. Yuma, supra note 18, 286 Neb. at 247, 835 N.W.2d at 682, quoting
State v. Gonzalez, supra note 8.
23
See, e.g., Berumen v. Casady, 245 Neb. 936, 515 N.W.2d 816 (1994).