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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. WARE
Cite as 292 Neb. 24
State of Nebraska, appellee, v.
David E. Ware, appellant.
___ N.W.2d ___
Filed October 30, 2015. No. S-15-155.
1. Postconviction: Proof: Appeal and Error. A defendant requesting
postconviction relief must establish the basis for such relief, and the
findings of the district court will not be disturbed unless they are
clearly erroneous.
2. Postconviction: Constitutional Law: Proof. An evidentiary hearing
on a motion for postconviction relief must be granted when the motion
contains factual allegations which, if proved, constitute an infringe-
ment of the movant’s rights under the Nebraska or federal Constitution.
However, if the motion alleges only conclusions of fact or law, or the
records and files in the case affirmatively show that the movant is
entitled to no relief, no evidentiary hearing is required.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Natalie M. Andrews for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, Cassel, and Stacy, JJ.
Heavican, C.J.
INTRODUCTION
David E. Ware’s motion for postconviction relief was denied
without an evidentiary hearing. Ware appeals and argues he was
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STATE v. WARE
Cite as 292 Neb. 24
entitled to an evidentiary hearing on his claims that his sen-
tence violated the Eighth Amendment to the U.S. Constitution
and that his trial counsel was ineffective. We affirm.
BACKGROUND
On April 13, 1984, Ware was convicted of first degree
murder following a bench trial. Ware was subsequently sen-
tenced to life imprisonment. This court affirmed his conviction
and sentence.1
On August 16, 2012, Ware filed a motion for postconvic-
tion relief. In that motion, Ware alleged that (1) his mandatory
life sentence was unconstitutional under Miller v. Alabama2
because the sentencing court did not have the opportunity to
consider any mitigating circumstances; (2) his trial counsel was
ineffective (a) for failing to advise him of his right to testify
in his own behalf and (b) for failing to adequately inform him
of his right to a jury trial; and (3) he did not knowingly, intel-
ligently, and voluntarily waive his right to have a presentence
investigation conducted.
Originally, Ware’s motion was stayed pending this court’s
decision in State v. Mantich.3 But after this court issued its
opinions in Mantich and State v. Castaneda,4 Ware’s motion
proceeded and a hearing on the State’s second motion to deny
an evidentiary hearing was held. At this hearing, Ware sought
to introduce into evidence the deposition of an adolescent neu-
ropsychologist. That request was denied at the hearing, and
Ware’s motion seeking postconviction relief was denied on
January 22, 2015.
In its order, the district court noted that Ware had no Miller
claim, because he was 18 years of age at the time of the
1
State v. Ware, 219 Neb. 594, 365 N.W.2d 418 (1985).
2
Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407
(2012).
3
State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 (2014).
4
State v. Castaneda, 287 Neb. 289, 842 N.W.2d 740 (2014).
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STATE v. WARE
Cite as 292 Neb. 24
commission of the crime for which he was convicted. The
court further addressed the claim that his counsel was inef-
fective for not informing him of his right to testify in his own
behalf, and concluded that this allegation was not supported
by the record. Finally, the district court found that Ware’s
claims regarding his presentence investigation were procedur-
ally barred.
ASSIGNMENTS OF ERROR
Ware assigns that the district court erred in not granting
him an evidentiary hearing, because (1) his life sentence was
unconstitutional and (2) his trial counsel was ineffective for
failing to inform him of the consequences of his waiver of a
jury trial.
STANDARD OF REVIEW
[1,2] A defendant requesting postconviction relief must
establish the basis for such relief, and the findings of the
district court will not be disturbed unless they are clearly
erroneous.5 An evidentiary hearing on a motion for postconvic-
tion relief must be granted when the motion contains factual
allegations which, if proved, constitute an infringement of the
movant’s rights under the Nebraska or federal Constitution.6
However, if the motion alleges only conclusions of fact or
law, or the records and files in the case affirmatively show
that the movant is entitled to no relief, no evidentiary hearing
is required.7
ANALYSIS
Constitutionality of Life Sentence.
In his first assignment of error, Ware argues that his life
sentence is unconstitutional. Ware’s argument is based upon
5
State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).
6
Id.
7
Id.
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STATE v. WARE
Cite as 292 Neb. 24
the U.S. Supreme Court’s decision in Miller.8 In that deci-
sion, the Court concluded that a mandatory life-without-parole
sentence for “those under the age of 18 at the time of their
crimes violates the Eighth Amendment’s prohibition on ‘cruel
and unusual punishments.’”9 Subsequent to Miller, this court
observed that life imprisonment sentences imposed upon juve-
niles in Nebraska for first degree murder prior to Miller were
effectively sentences of life imprisonment without parole.10 We
further held, in accordance with Miller, that those defendants
were entitled to resentencing.11
In Ware’s case, the district court found, and the record
shows, that Ware was 18 years of age at the time he commit-
ted the murder for which he was sentenced to life imprison-
ment. Ware does not contest that fact, but argues that because
the age of majority in Nebraska is 19 under the juvenile code,
this court should conclude that Miller applies to protect those
minors under the age of 19. Ware acknowledges that we
rejected this same argument in State v. Wetherell,12 but asks us
to reconsider that conclusion.
In connection with Ware’s contention that he should be
resentenced under Miller, Ware relies on the deposition of a
neuropsychologist who testified that the brains of young adults
do not stop growing until age 19 or 20 and are not fixed until
age 25 or 26. Ware offered this deposition as an exhibit at the
hearing on the State’s motion to dismiss; the district court did
not admit it, and Ware does not assign this as error. But Ware
nevertheless urges us to consider this deposition.
In State v. Glover,13 we opined on the appropriateness of
a district court allowing the introduction of evidence at a
8
Miller v. Alabama, supra note 2.
9
Id., 132 S. Ct. at 2460.
10
State v. Castaneda, supra note 4.
11
State v. Mantich, supra note 3.
12
State v. Wetherell, 289 Neb. 312, 855 N.W.2d 359 (2014).
13
State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).
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hearing on a motion for an evidentiary hearing (as opposed to
an evidentiary hearing). We noted that
receiving new evidence at a records hearing would
create chaos. Either the State or the prisoner could be
unprepared to respond to new evidence. That unpre-
paredness could result in unnecessary due process
challenges from prisoners. And appellate courts would
constantly have to backtrack and consider whether an
evidentiary hearing was warranted based solely on the
allegations and the information contained in the case
records and files—a question that the district court
should initially address.14
This deposition was inadmissible, and we decline to con-
sider it.
We also decline Ware’s invitation to reconsider Wetherell.
By its very language, Miller applies to those individuals who
were under the age of 18 at the time a crime punishable by a
life sentence without the possibility of parole was committed.
We further note that Neb. Rev. Stat. § 28-105.02(1) (Cum.
Supp. 2014) codifies Miller for “any person convicted of a
Class IA felony for an offense committed when such person
was under the age of eighteen years.” (Emphasis supplied.)
The district court did not err in not granting a new sentenc-
ing hearing under Miller. Ware’s first assignment of error is
without merit.
Waiver of Jury Trial.
In his second assignment of error, Ware argues that the dis-
trict court erred in not considering his claim that his counsel
was ineffective for failing to properly advise him of the con-
sequences of waiving his right to a jury trial. Ware is correct
that the district court did not address this allegation.
But we conclude that Ware is not entitled to postconviction
relief. If the records and files in the case affirmatively show
14
Id. at 629, 756 N.W.2d at 163.
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STATE v. WARE
Cite as 292 Neb. 24
that the movant is entitled to no relief, no evidentiary hear-
ing is required.15 And in this case, the record shows that Ware
was informed and questioned in some detail about the conse-
quences of waiving his right to a jury trial.
The bill of exceptions shows an extensive discussion
between Ware and the district court on this issue. The right to
a jury trial was explained to Ware. Ware was asked whether
he wanted to waive that right, and the consequences of that
decision were discussed. Ware was asked to explain why he
wanted to waive his right to a jury trial. During this discussion,
the court explicitly noted that it wanted Ware “to understand
that this Court is certainly very willing to afford you a jury
trial, and it’s set for jury trial starting Monday morning, if
you want.”
Moreover, Ware’s counsel explained to the court that “prob-
ably on at least four occasions at some length [he and Ware]
have talked about the possibility of waiving a jury trial.” This
colloquy occurred days in advance of trial, which was origi-
nally scheduled to be a jury trial. On the day of trial, Ware was
again asked whether he still wished to waive his right to a jury
trial; he indicated that he did.
The record shows that Ware was aware of his right to a
jury trial and was aware of the consequences of waiving that
right. As such, the record affirmatively shows that Ware is not
entitled to postconviction relief on this issue. There is no merit
to Ware’s second assignment of error.
CONCLUSION
The decision of the district court is affirmed.
A ffirmed.
15
See State v. Hessler, supra note 5.