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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 irrespective 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 collateral attacks on final judgments in criminal cases based upon constitutional 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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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 victim 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 imprisonment.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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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 imposition 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 question 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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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 unconstitutional 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 procedure for bringing collateral attacks on final judgments in criminal 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 commonlaw 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 defendant 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 defendant 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 postconviction action and did not seek the recognition of a new special 

proceeding.”12 We specifically declined “to extend [the language 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 filing 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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(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 retroactively 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 conviction. 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 defendant 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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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 vindication 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 limits 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 corpus.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 determining 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).