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STATE v. WARE

Cite as 292 Neb. 24

State of Nebraska, appellee, v.

David E. Ware, appella

___ 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 infringement 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: Thoma

A. Otepka, Judge. Affirme

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, MillerLerman, Cassel, a

Heavican, C

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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entitled to an evidentiary hearing on his claims that his sentence 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 sentenced to life imprisonment. This court affirmed his conviction 

and sentence.1

On August 16, 2012, Ware filed a motion for postconviction 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, intelligently, 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 neuropsychologist. 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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commission of the crime for which he was convicted. The 

court further addressed the claim that his counsel was ineffective 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 procedurally 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 postconviction 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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the U.S. Supreme Court’s decision in Miller.

8

 In that decision, 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 juveniles 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 committed the murder for which he was sentenced to life imprisonment. 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 unpreparedness 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 consider 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 sentencing 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 district court erred in not considering his claim that his counsel 

was ineffective for failing to properly advise him of the consequences 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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that the movant is entitled to no relief, no evidentiary hearing is required.15 And in this case, the record shows that Ware 

was informed and questioned in some detail about the consequences 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 “probably 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 originally 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.

Affirmed

15 See State v. Hessler, supra note 5.