N ebraska A dva n ce S he
320 287 NEBRASKA REPORTS

We decline to address Castaneda’s argument under Graham as presented by his brief on appeal, because the possibility exists that upon remand, Castaneda might not be resentenced to life imprisonment. Finally, the State argues that the district court committed plain error when it failed to order Castaneda’s three sentences for use of a deadly weapon to run consecutively “to all other sentences imposed.” 70 We agree and vacate all of Castaneda’s other sentences and remand the cause for resentencing. 71

VI. CONCLUSION Castaneda’s assignments regarding trial error are without merit. But the life imprisonment sentences imposed upon Castaneda were effectively life imprisonment without the possi

bility of parole and unconstitutional under Miller

. 72 We accord

ingly vacate those unconstitutional sentences and remand the cause for resentencing. We also vacate all of Castaneda’s other sentences, because the district court committed plain error in ordering some of those sentences to run concurrently rather than consecutively. C o n victio n s affirmed , all se n te n ces vac

a n d cause rema n ded for rese n te n

70 Brief for appellee at 75 (emphasis in original).

71 See, Neb. Rev. Stat. § 28-1205(3) (Cum. Supp. 2012); State v. Scott , 284

Neb. 703, 824 N.W.2d 668 (2012); State v. Russell , 248 Neb. 723, 539 N.W.2d 8 (1995).

72 Miller, supra note 34.

S tate of N ebraska , appellee , v

. D ouglas M

. M a n tich , appel ___ N.W.2d ___

Filed February 7, 2014. No. S-11-301.

1. **Constitutional Law: Sentences.** Whether a sentence violates the Eighth Amendment’s cruel and unusual punishment clause presents a question of law. 2. **Judgments: Appeal and Error.** When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court’s ruling.N ebraska A dva n ce S he
STATE v . MANTICH 321
Cite as 287 Neb. 320

3. **Constitutional Law: Criminal Law: Statutes: Convictions: Sentences: Time.** When a decision of the U.S. Supreme Court results in a “new rule,” that rule applies to all criminal cases still pending on direct review. As to convictions that are already final, however, the rule applies only in limited circumstances. New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as con

stitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish. 4. **Constitutional Law: Criminal Law: Time.** New rules of procedure generally do not apply retroactively. The only exception is those rules that are “watershed rules of criminal procedure” implicating the fundamental fairness and accuracy of the criminal proceedings. 5. **Constitutional Law: Criminal Law: Minors: Sentences: Time: Appeal and Error.**  The holding of the U.S. Supreme Court in Miller v. Alabama , ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), that the Eighth Amendment forbids a sentencing scheme which mandates life in prison without the possibility of parole for juvenile offenders, is a new substantive rule of constitutional law which applies retroactively to criminal cases on collateral review.
Appeal from the District Court for Douglas County: J. P

atrick M ulle n , Judge. Sentence vacated, and cause remand for resentencing.

Adam J. Sipple, of Johnson & Mock, for appellant.

Jon Bruning, Attorney General, and J. Kirk Brown for appellee.

H eavica n , C .J., W right , C o nn olly , S tepha n , M M iller

- L erma n , and C assel ,

S tepha n , In 1994, Douglas M. Mantich was convicted of first degree murder and use of a firearm to commit a felony. He was sen

tenced to life imprisonment for the murder conviction and 5 to 20 years’ imprisonment for the firearm conviction. The murder was committed when Mantich was 16 years old. On direct appeal, we affirmed his convictions and life imprison

ment sentence and vacated and remanded his firearm sentence for resentencing. 1

1 State v. Mantich , 249 Neb. 311, 543 N.W.2d 181 (1996).N ebraska A dva n ce S he
322 287 NEBRASKA REPORTS

In 2010, Mantich filed an amended postconviction motion alleging his life imprisonment sentence violated the Eighth Amendment’s prohibition on cruel and unusual punishment because it was (1) categorically prohibited under the U.S. Supreme Court’s holding in Graham v. Florida 2 and (2) grossly disproportionate to the offense for which he was convicted. Mantich also alleged that the attorney who represented him at his trial and on direct appeal was ineffective in not asserting these Eighth Amendment claims. The district court denied the postconviction motion without conducting an evidentiary hear

ing, and Mantich appealed from that order. We heard oral arguments in the appeal on October 7, 2011. On July 11, 2012, we set the case for reargument and ordered supplemental briefing after the U.S. Supreme Court held in Miller v. Alabama 3 that the Eighth Amendment forbids a state sentencing scheme that mandates life in prison without the pos

sibility of parole for a juvenile offender convicted of homicide. We now hold that Mantich’s life imprisonment sentence is unconstitutional under Miller

. I. FACTS On December 5, 1993, a gathering was held to mourn the death of a “Lomas” gang member. Several members of the gang attended the party, including Mantich, Gary Brunzo, Daniel Eona, Juan Carrera, and Angel Huerta. At the gathering, Mantich consumed between 5 and 10 beers and smoked mari

juana in a 2 1 ⁄ 2 -hour period. Sometime after 1 a.m., Carrera decided that he wanted to steal a car and commit a driveby shooting of a member of a rival gang. While holding a gun, Eona responded that he also wanted to steal a car and talked about “jackin’ somebody” and “putting a gun to their head.” Brunzo and Eona then walked toward Dodge Street to steal a vehicle. They returned about 20 minutes later in a stolen red minivan, and Carrera and Huerta

2 Graham v. Florida , 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825

(2010).

3 Miller v. Alabama , ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407

(2012).N ebraska A dva n ce S he
STATE v . MANTICH 323
Cite as 287 Neb. 320
got in. Over his girlfriend’s objection and attempt to physically restrain him, Mantich also got into the van. The van had no rear seats. Eona was in the driver’s seat, and Brunzo was in the front passenger seat. Carrera sat behind the driver’s seat; Huerta sat on the passenger side, close to the sliding side door; and Mantich sat behind Carrera and Huerta, toward the back of the van. After a short time, Mantich realized that a man, later identified as Henry Thompson, was in the van. Thompson was kneeling between the driver’s seat and the front passenger seat with his hands over his head and his head facing the front of the van. The gang members began chanting “Cuz” and “Blood.” Mantich thought the purpose was to make Thompson believe they were affiliated with a different gang. Eona demanded Thompson’s money, and Brunzo told Thompson they were going to shoot him. Mantich saw Brunzo and Eona poke Thompson in the head with their guns. Eventually, a shot was fired and Thompson was killed. Thompson’s body was pulled out of the van and left on 13th Street. The group then drove to Carrera’s house so he could retrieve his gun. After this, they drove by a home and fired several shots at it from the vehicle. Later, they sank the van in the Missouri River and walked back to 13th Street. From there, Mantich and Huerta took all the guns and went to Huerta’s house to hide them. Brunzo, Eona, and Carrera walked toward the area of Thompson’s body. After hiding the guns with Huerta, Mantich walked to Brian Dilly’s house. While still intoxicated, Mantich told Dilly and Dilly’s brothers about the events of the night. Mantich claimed he had pulled the trigger and killed Thompson. When the 6 o’clock news featured a story on the homicide, Mantich said, “‘I told you so,’” and “‘I told you I did it.’” About an hour after the newscast, Mantich told Dilly that Brunzo was actu

ally the person who shot and killed Thompson. The police later learned about Mantich’s conversations with Dilly, and arrest warrants were issued for Mantich, Brunzo, Eona, and Carrera. Mantich was arrested on January 4, 1994. Mantich agreed to talk with Omaha police about what hap

pened and initially claimed that Brunzo shot Thompson. TheN ebraska A dva n ce S he
324 287 NEBRASKA REPORTS

police told Mantich that statements were being obtained from Brunzo, Eona, and Carrera and that Mantich’s statement was inconsistent with the information the police had acquired. The police also told Mantich that Dilly said Mantich confessed to shooting Thompson. Mantich admitted telling Dilly he shot Thompson, but explained that it was a lie and that he was only trying to look like “a bad ass.” Mantich claimed that he had not shot anyone and that Brunzo was the shooter. The police then told Mantich they knew what happened and assured Mantich that his family and girlfriend “would not abandon him” if he told the truth. At this point, Mantich admit

ted that he had pulled the trigger. Mantich said, “‘I’m sorry it happened. I wished it wouldn’t have happened.’” Mantich further stated, “‘They handed me the gun and said shoot him, so I did it.’” Mantich again confessed during a taped statement to shooting Thompson. Mantich testified in his own behalf at trial. He acknowl

edged his statements to Dilly and the police that he had shot Thompson, but told the jury that he had not shot Thompson. On September 26, 1994, the jury returned a verdict of guilty on one charge of first degree murder and one charge of use of a firearm to commit a felony.

1. S e n te n ci n g a n d D irect In October 1994, the district court sentenced Mantich to a term of life imprisonment on the first degree murder conviction and to 5 to 20 years’ imprisonment on the conviction of use of a firearm to commit a felony. Mantich’s life imprisonment sentence carries no possibility of release on parole unless the Board of Pardons commutes his sentence to a term of years. 4 The court ordered the sentences to run consecutively. On direct appeal, Mantich assigned various errors, including that the evidence was insufficient to support his convictions. He did not assert an Eighth Amendment claim with respect to his life imprisonment sentence. We found no merit in any of his assignments of error, but concluded that there was plain

4 See, Neb. Const. art. IV, § 13; Neb. Rev. Stat. § 83-1,126 (Reissue 2008);

Poindexter v. Houston , 275 Neb. 863, 750 N.W.2d 688 (2008).N ebraska A dva n ce S he
STATE v . MANTICH 325
Cite as 287 Neb. 320
error resulting from a failure to give credit for time served on his sentence for use of a firearm to commit a felony. We there

fore affirmed his convictions but vacated the firearm sentence and remanded the cause with directions to resentence Mantich, giving him credit for time served. 5

2. P ostco n victio n P rocee Mantich filed a pro se motion for postconviction relief on September 25, 2006. The court dismissed the first five grounds of the motion, reasoning they were the same grounds Mantich raised on direct appeal. The court did not dismiss Mantich’s claim of ineffective assistance of counsel and appointed coun

sel to represent Mantich with respect to that claim. That attor

ney filed the operative amended motion for postconviction relief on August 31, 2010. The amended motion asserted Mantich’s sentence of life imprisonment without parole violated the Eighth Amendment because it was (1) categorically prohibited under Graham v. Florida 6 and (2) disproportionate to the offense for which he was convicted. In Graham

, 7 the U.S. Supreme Court held that “the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender.” The amended motion also alleged the attorney who represented Mantich during trial and on direct appeal was ineffective for not objecting to the life imprisonment without parole sentence on Eighth Amendment grounds. The State moved to dismiss Mantich’s amended motion, asserting Graham did not apply because Mantich was con

victed of a homicide offense. The State further contended that Mantich’s counsel was not ineffective. On March 17, 2011, the district court denied Mantich’s amended motion without an evidentiary hearing. The court concluded that Mantich’s life imprisonment sentence was not categorically barred under Graham or any decision of this court. Mantich filed this timely appeal. While it was pending,

5 See Mantich, supra note 1.

6 Graham, supra note 2.

7 Id. , 560 U.S. at 75.N ebraska A dva n ce S he
326 287 NEBRASKA REPORTS

the U.S. Supreme Court decided Miller v. Alabama

. 8 Miller held that a sentence of mandatory life imprisonment without parole for a juvenile violated the Eighth Amendment’s prohibi

tion on cruel and unusual punishment. We ordered reargument and supplemental briefing on the effect of Miller on Mantich’s postconviction motion.

II. ASSIGNMENTS OF ERROR In the original appeal from the denial of postconviction relief, Mantich assigned, restated and summarized, that the district court erred in (1) failing to vacate his sentence pursu

ant to the holding of Graham , (2) failing to vacate his sentence as unconstitutionally disproportionate to the offense of felony murder, and (3) failing to hold an evidentiary hearing on the issues presented by his ineffective assistance of counsel and Eighth Amendment claims. After we ordered supplemental briefing in light of Miller , Mantich reasserted all of the assign

ments of error raised in his initial brief. He also assigned, restated and consolidated, that his life imprisonment sentence is a violation of the 8th and 14th Amendments based on the U.S. Supreme Court’s decision in Miller.

III. STANDARD OF REVIEW [1,2] Whether a sentence violates the Eighth Amendment’s cruel and unusual punishment clause presents a question of law. 9 When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court’s ruling. 10

IV. ANALYSIS
1. M iller v . A l a b ama A pplies to In Miller v. Alabama

, 11 the Court held that the “Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.”

8 Miller, supra note 3.

9 See State v. Hurbenca , 266 Neb. 853, 669 N.W.2d 668 (2003).

10 State v. Sims , 277 Neb. 192, 761 N.W.2d 527 (2009); State v. Davis , 276

Neb. 755, 757 N.W.2d 367 (2008).

11 Miller, supra note 3, 132 S. Ct. at 2469.N ebraska A dva n ce S he
STATE v . MANTICH 327
Cite as 287 Neb. 320
The Court reached its conclusion by applying two lines of precedent. First, the Court recognized two previous juvenile
cases, Graham v. Florida 12 and Roper v. Simmons

. 13 Graham held that a juvenile could not be sentenced to life imprisonment without parole for a nonhomicide offense. Roper held that a juvenile could not be sentenced to death. Both thus announced categorical bans on sentencing practices as they apply to juve

niles. The Court in Miller reasoned that Graham and Roper established that “children are constitutionally different from adults for purposes of sentencing.” 14 Specifically, the Court in Miller noted that compared to adults, children lack maturity and have an underdeveloped sense of responsibility, are more vulnerable to outside influences and pressures, and have yet to fully develop their character. Because of these differences, the Court reasoned juveniles have “diminished culpability and greater prospects for reform.” 15 Second, the Miller Court recognized prior Court jurispru

dence requiring individualized decisionmaking in capital pun

ishment cases. 16 It then applied this jurisprudence to the impo

sition of life imprisonment on juveniles by reasoning that a life imprisonment without parole sentence for a juvenile is tantamount to a death sentence for an adult. 17 According to the Court, because the Eighth Amendment when applied to adults requires individualized sentencing prior to the imposition of a death sentence, the Eighth Amendment when applied to juve

niles requires individualized sentencing prior to the imposition of a sentence of life imprisonment without parole. 18

12 Graham, supra note 2.

13 Roper v. Simmons , 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

14 Miller, supra note 3, 132 S. Ct. at 2464.

15 Id

. 16 Miller, supra note 3. See, Sumner v. Shuman , 483 U.S. 66, 107 S. Ct.

2716, 97 L. Ed. 2d 56 (1987); Eddings v. Oklahoma , 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982); Lockett v. Ohio , 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978); Woodson v. North Carolina , 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976).

17 Miller, supra note 3.

18 Id.N ebraska A dva n ce S he
328 287 NEBRASKA REPORTS

The threshold question presented to us in this appeal is whether the holding in Miller applies to Mantich so that his sentence must be vacated and this cause remanded for a new sentencing hearing. We held in State v. Castaneda 19 that life imprisonment sentences imposed on juveniles in Nebraska prior to Miller were mandatory sentences and were equivalent to life imprisonment without parole. But Mantich’s life impris

onment sentence was imposed and his first degree murder conviction became final years before Miller was decided. He is entitled to be resentenced only if the rule announced in Miller applies retroactively to cases that became final prior to its pro

nouncement, i.e., cases on collateral review.

(a) Retroactivity Test In its 1989 decision in Teague v. Lane

, 20 the U.S. Supreme Court set forth a test for determining when a new rule of con

stitutional law will be applied to cases on collateral review. Before announcing the test, however, the Court emphasized that “the question ‘whether a decision [announcing a new rule should] be given prospective or retroactive effect should be faced at the time of [that] decision.’” 21 The Court explained that “[r]etroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated.” 22 According to Teague , “new rules should always be applied retroactively to cases on direct review, but . . . generally they should not be applied retroactively to criminal cases on collat

eral review.” 23 The rationale for the distinction is that collateral review is not designed as a substitute for direct review and that

19 State v. Castaneda, ante p. 289, ___ N.W.2d ___ (2014).

20 Teague v. Lane , 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).

21 Id. , 489 U.S. at 300, quoting Paul J. Mishkin, Foreword: The High Court, the Great Writ, and the Due Process of Time and Law , 79 Harv. L. Rev. 56 (1965).

22 Teague, supra note 20, 489 U.S. at 300.

23 Id. , 489 U.S. at 303.N ebraska A dva n ce S he
STATE v . MANTICH 329
Cite as 287 Neb. 320
the government has a legitimate interest in having judgments become and remain final. 24 Teague articulated two exceptions to the general rule of nonretroactivity for cases on collateral review. First, a new rule should be applied retroactively if it “places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.’” 25 Second, a new rule should be applied retroactively if it “requires the observance of ‘those procedures that . . . are “implicit in the concept of ordered liberty.”’” 26 The ultimate holding in Teague was this: “Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” 27 [3] Since Teague , the Court has refined the retroactivity analysis. The most significant refinement occurred in Schriro v. Summerlin

. 28 The issue in Schriro was whether the Court’s decision in Ring v. Arizona 29 applied retroactively to a death penalty case on federal habeas review. In deciding this, the Court stated: When a decision of this Court results in a “new rule,” that rule applies to all criminal cases still pending on direct review. . . . As to convictions that are already final, however, the rule applies only in limited circumstances. New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal

24 See Teague, supra note 20.

25 Id. , 489 U.S. at 307, quoting Mackey v. United States , 401 U.S. 667, 91 S. Ct. 1160, 28 L. Ed. 2d 404 (1971) (Harlan, J., concurring in part, and in part dissenting).

26 Id. , quoting Mackey, supra note 25 (quoting Palko v. Connecticut , 302

U.S. 319, 58 S. Ct. 149, 82 L. Ed. 2d 288 (1937), overruled on other grounds, Benton v. Maryland , 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969)).

27 Teague, supra note 20, 489 U.S. at 310.

28 Schriro v. Summerlin , 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004).

29 Ring v. Arizona , 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).N ebraska A dva n ce S he
330 287 NEBRASKA REPORTS

statute by interpreting its terms, . . . as well as consti

tutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish. . . . Such rules apply retroactively because they “necessarily carry a significant risk that a defendant stands convicted of ‘an act that the law does not make criminal’” or faces a punishment that the law cannot impose upon him. 30 The Court explained that although it had sometimes referred to rules of this type as “falling under an exception to Teague’ s bar on retroactive application of procedural rules, . . . they are more accurately characterized as substantive rules not subject to the bar.” 31 [4] Schriro further explained that new “rules of procedure” generally do not apply retroactively. 32 The only exception is those rules that are “‘“watershed rules of criminal procedure” implicating the fundamental fairness and accuracy of the crimi

nal proceeding.’” 33 This class of rules is extremely narrow. 34 In 2008, the U.S. Supreme Court ruled that the Teague / Schriro retroactivity analysis it applies in federal habeas actions is not binding upon state courts when deciding issues of retroactivity under state law. 35 In doing so, the Court noted that a state court is “‘free to choose the degree of retroactivity or prospectivity which [it] believe[s] appropriate to the par

ticular rule under consideration, so long as [it] give[s] federal constitutional rights at least as broad a scope as the United States Supreme Court requires.’” 36 In other words, states can

30 Schriro, supra note 28, 542 U.S. at 351-52 (citations omitted).

31 Id. , 542 U.S. at 352 n.4 (citations omitted).

32 Id. , 542 U.S. at 352.

33 Id.

34 Id.

35 Danforth v. Minnesota , 552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008).

36 Id ., 552 U.S. at 276, quoting State v. Fair , 263 Or. 383, 502 P.2d 1150 (1972).N ebraska A dva n ce S he
STATE v . MANTICH 331
Cite as 287 Neb. 320
give broader effect to new rules than is required by the Teague / Schriro test. 37 We have adhered to the Teague / Schriro test in the two cases in which we have addressed the retroactivity of a new rule announced by the U.S. Supreme Court to cases on state postconviction review, 38 and we see no reason to depart from that analysis.

(b) Court Precedent It is very clear that Miller announced a new rule. This is so because the rule announced in Miller was not dictated by precedent existing at the time Mantich’s first degree murder conviction became final. 39 The new rule can apply to Mantich, who is before this court on collateral review, if it is either a substantive rule or a watershed rule of criminal procedure. 40 According to Schriro , the key distinction in the retroactiv

ity analysis is whether the new rule is substantive or proce

dural. 41 Schriro held that substantive rules include those that (1) narrow the scope of a criminal statute by interpreting its terms or (2) place particular conduct or persons covered by the statute beyond the State’s power to punish. The second category encompasses “rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.” 42 Substantive rules apply retroactively because they carry a “‘significant risk’” that a defendant stands convicted

37 Danforth, supra note 35.

38 State v. Lotter , 266 Neb. 245, 664 N.W.2d 892 (2003); State v. Reeves , 234

Neb. 711, 453 N.W.2d 359 (1990), cert. granted and judgment vacated 498 U.S. 964, 111 S. Ct. 425, 112 L. Ed. 2d 409 (1990).

39 See Whorton v. Bockting , 549 U.S. 406, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007).

40 Id. ; Schriro, supra note 28.

41 Schriro, supra note 28.

42 Penry v. Lynaugh , 492 U.S. 302, 330, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), abrogated on other grounds, Atkins v. Virginia , 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002).N ebraska A dva n ce S he
332 287 NEBRASKA REPORTS

of “‘“an act that the law does not make criminal”’” or “faces a punishment that the law cannot impose upon him.” 43 It is clear that categorical bans on sentences are substan

tive rules. 44 Rules forbidding imposition of the death sentence on persons with mental retardation 45 or on juveniles 46 and a rule forbidding life imprisonment for a juvenile convicted of a nonhomicide offense 47 have been considered substan

tive rules. 48 In comparison, rules that “regulate only the manner of deter

mining the defendant’s culpability are procedural.” 49 They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise. 50 In the sentencing context, the Court has found a number of rules to be procedural. In Schriro v. Summerlin

, 51 the Court addressed whether the rule announced in Ring v. Arizona 52 applied retroactively to cases on collateral review. Ring held that a jury, and not a judge, had to find an aggravating circumstance necessary for imposition of the death penalty. Schriro held this rule was procedural, noting it merely “altered the range of permissible methods for determining whether a

43 Schriro, supra note 28, 542 U.S. at 352, quoting Bousley v. United States

, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998).

44 See Penry, supra note 42.

45 Atkins, supra note 42.

46 Roper, supra note 13.

47 Graham, supra note 2.

48 See, e.g., Allen v. Buss , 558 F.3d 657 (7th Cir. 2009) ( Atkins ); Nixon v. State , 2 So. 3d 137 (Fla. 2009) ( Atkins ); McStoots v. Com. , 245 S.W.3d 790 (Ky. App. 2007) ( Roper ); Duncan v. State , 925 So. 2d 245 (Ala. Crim. App. 2005) ( Roper ); People v. Rainer , No. 10CA2414, 2013 WL 1490107 (Colo. App. Apr. 11, 2013) ( Graham ); Bonilla v. State , 791 N.W.2d 697 (Iowa 2010) ( Graham ).

49 Schriro, supra note 28, 542 U.S. at 353.

50 Schriro, supra note 28.

51 Id.

52 Ring, supra note 29.N ebraska A dva n ce S he
STATE v . MANTICH 333
Cite as 287 Neb. 320
defendant’s conduct is punishable by death.” 53 It noted that rules that “allocate decisionmaking authority in this fashion are prototypical procedural rules.” 54 Notably, however, the Court stated: This Court’s holding that, because [a state] has made a certain fact essential to the death penalty, that fact must be found by a jury, is not the same as this Court’s making a certain fact essential to the death penalty. The former was a procedural holding; the latter would be substantive. 55 In Lambrix v. Singletary

, 56 the Court addressed whether the rule announced in Espinosa v. Florida 57 applied retroactively to cases on collateral review. Espinosa held that if a sentencing judge in a state that requires specified aggravating circum

stances to be weighed against any mitigating circumstances at the sentencing phase of a capital trial is required to give def

erence to a jury’s advisory sentencing recommendation, then neither the jury nor the judge is constitutionally permitted to weigh invalid aggravating circumstances. Without extensive analysis, the Lambrix Court concluded this rule did not pro

hibit the imposition of capital punishment on a particular class of persons. In Sawyer v. Smith

, 58 the Court addressed whether the rule announced in Caldwell v. Mississippi 59 applied retroactively to cases on collateral review. Caldwell held that the Eighth Amendment prohibits imposition of the death penalty by a sentencer that has been led to the false belief that the responsi

bility for determining the appropriateness of the sentence rests

53 Schriro, supra note 28, 542 U.S. at 353.

54 Id.

55 Id ., 542 U.S. at 354.

56 Lambrix v. Singletary , 520 U.S. 518, 117 S. Ct. 1517, 137 L. Ed. 2d 771 (1997).

57 Espinosa v. Florida , 505 U.S. 1079, 112 S. Ct. 2926, 120 L. Ed. 2d 854 (1992).

58 Sawyer v. Smith , 497 U.S. 227, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990).

59 Caldwell v. Mississippi , 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985).N ebraska A dva n ce S he
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elsewhere. The Sawyer Court concluded the rule was not retro

active, because it was simply a procedural rule “designed as an enhancement of the accuracy of capital sentencing.” 60

(c) Miller and Other Jurisdictions A number of jurisdictions have considered whether Miller announced a rule that is to be applied retroactively. The results are varied. The primary point of dissension is whether the rule announced in Miller is substantive. The Louisiana Supreme Court held in State v. Tate 61 that the rule announced in Miller was a procedural one, largely because the Court in Miller specifically stated that “‘[o]ur decision does not categorically bar a penalty for a class of offenders or type of crime.’” Louisiana reasoned that Miller simply “altered the range of **permissible methods** ” for determining whether a juvenile could be sentenced to life imprisonment without parole. 62 In Com. v. Cunningham 63 the Pennsylvania Supreme Court adopted similar reasoning, holding that “by its own terms, the Miller holding ‘does not categorically bar a penalty for a class of offenders.’” A U.S. district court in Virginia has also adopted this rationale. 64 The Minnesota Supreme Court held in Chambers v. State 65 that the rule announced in Miller was procedural and not substantive because it did not “eliminate the power of the State to impose the punishment of life imprisonment with

out the possibility of release upon a juvenile offender who has committed a homicide offense.” Instead, it reasoned that Miller simply requires “‘that a sentencer follow a cer

tain process —considering an offender’s youth and attendant

60 Sawyer, supra note 58, 497 U.S. at 244.

61 State v. Tate , No. 2012-OK-2763, 2013 WL 5912118 at *6 (La. Nov. 5, 2013), quoting Miller, supra note 3.

62 Id.

63 Com. v. Cunningham , 81 A.3d 1, 10 (Pa. 2013), quoting Miller, supra

note 3.

64 Johnson v. Ponton , No. 3:13-CV-404, 2013 WL 5663068 (E.D. Va. Oct. 16, 2013) (memorandum opinion).

65 Chambers v. State , 831 N.W.2d 311, 328 (Minn. 2013).N ebraska A dva n ce S he
STATE v . MANTICH 335
Cite as 287 Neb. 320
characteristics—before imposing’” a sentence of life impris

onment without parole. 66 The U.S. Court of Appeals for the 11th and 5th Circuits and the Michigan Court of Appeals have all adopted similar reasoning. 67 The 11th Circuit placed partic

ular reliance on Penry v. Lynaugh

. 68 In Penry , the Court held that a new rule “prohibiting a certain category of punishment for a class of defendants because of their status or offense” is retroactive, but only where a class cannot be subjected to the punishment “regardless of the procedures followed.” 69 The 11th Circuit reasoned that Miller is not substantive, because it merely altered the range of permissible methods for deter

mining whether a juvenile’s conduct is punishable by life imprisonment without parole and did not completely forbid a jurisdiction from imposing a sentence of life imprisonment without parole. 70 But at least four jurisdictions have reasoned that the rule announced in Miller is a substantive one, largely because it fits into the second category of substantive rules announced in Schriro . The Illinois Court of Appeals held in People v. Morfin 71 that Miller was a substantive rule because it “man

dates a sentencing range broader than that provided by statute for minors convicted of first degree murder.” A concurring opinion emphasized that the rule was substantive because Miller forbids an entire category of sentence—a mandatory sentence of life imprisonment for juveniles. 72 The concur

rence also reasoned that a new rule that did not prohibit a certain sentence in every case but prohibited the mandatory

66 Id ., quoting Miller, supra note 3.

67 See In re Morgan , 717 F.3d 1186 (11th Cir. 2013) (en banc); Craig v. Cain , No. 12-30035, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (unpublished opinion); and People v. Carp , 298 Mich. App. 472, 828 N.W.2d 685 (2012).

68 Penry, supra note 42.

69 Id. , 492 U.S. at 330.

70 In re Morgan, supra note 67.

71 People v. Morfin , 2012 IL App (1st) 103568, ¶ 56, 981 N.E.2d 1010, 1022, 367 Ill. Dec. 282, 294 (2012).

72 Morfin, supra note 71 (Sterba, J., specially concurring).N ebraska A dva n ce S he
336 287 NEBRASKA REPORTS

imposition of that sentence was a substantive rule and not a procedural one. 73 Similarly, in Jones v. Mississippi

, 74 the Supreme Court of Mississippi reasoned that Miller was a substantive rule because it “explicitly foreclosed imposition of a mandatory sentence of life without parole on juve

nile offenders.” It further reasoned that Miller required a substantive change in Mississippi law, because it required legislative modification of the existing law that had no provi

sion for following the dictates of Miller . Very recently, the Supreme Judicial Court of Massachusetts held the Miller rule was substantive because it “forecloses the imposition of a certain category of punishment—mandatory life in prison without the possibility of parole—on a specific class of defendants.” 75 And the Supreme Court of Iowa in State v. Ragland 76 recently held: From a broad perspective, Miller does mandate a new procedure. Yet, the procedural rule for [an individualized sentencing] hearing is the result of a substantive change in the law that prohibits mandatory life-without-parole sentencing. Thus, the case bars states from imposing a certain type of punishment on certain people. . . . “Such rules apply retroactively because they ‘necessarily carry a significant risk that a defendant’ . . . faces a punishment that the law cannot impose upon him.” The Iowa Supreme Court also emphasized an article written by constitutional scholar Erwin Chemerinsky in which he stated: “There is a strong argument that Miller should apply retroactively: It says that it is beyond the authority of the criminal law to impose a mandatory sentence of life without parole. It would be terribly unfair to have indi

viduals imprisoned for life without any chance of parole based on the accident of the timing of the trial.

73 Id.

74 Jones v. Mississippi , 122 So. 3d 698, 702 (Miss. 2013).

75 Diatchenko v. District Attorney for Suffolk Dist. , 466 Mass. 655, 666, ___

N.E.2d ___, ___ (2013).

76 State v. Ragland , 836 N.W.2d 107, 115-16 (Iowa 2013), quoting Schriro,
supra note 28.N ebraska A dva n ce S he
STATE v . MANTICH 337
Cite as 287 Neb. 320

“. . . . “. . . [T]he Miller Court did more than change proce

dures; it held that the government cannot constitutionally impose a punishment. As a substantive change in the law which puts matters outside the scope of the government’s power, the holding should apply retroactively.” 77 Courts have also reached differing conclusions as to how the procedural posture of Miller affects the retroactivity anal

ysis. Miller involved two defendants who were before the Court in separate but consolidated cases. Defendant Evan Miller was before the Court after his direct appeal from his criminal conviction was denied. 78 But the other defendant, Kuntrell Jackson, was before the Court on collateral review; he sought relief after a state court dismissed his application for a writ of state habeas corpus. 79 In announcing the new rule in Miller , the Court made no distinction between the procedural postures of the two defendants. Instead, it simply reversed both of the lower court judgments and remanded the causes “for further proceedings not inconsistent with this opinion.” 80 At least three jurisdictions have reasoned that the Court’s equal treatment of the two defendants is a factor that must be considered in the retroactivity analysis. In Ragland , the Iowa Supreme Court noted that Jackson’s case was remanded so that Jackson could be given an individualized sentenc

ing hearing and reasoned that “[t]here would have been no reason for the Court to direct such an outcome if it did not view the Miller rule as applying retroactively to cases on col

lateral review.” 81 Ragland also noted that the dissent in Miller

77 Ragland, supra note 76, 836 N.W.2d at 117, quoting Erwin Chemerinsky, Chemerinsky: Juvenile Life-Without-Parole Case Means Courts Must Look at Mandatory Sentences , A.B.A. J. Law News Now (posted Aug. 8,2012), http://www.abajournal.com/news/article/chemerinsky_juvenile_lifewithout-parole_case_means_courts_must_look_at_sen/.

78 See Miller, supra note 3.

79 Id.

80 Miller, supra note 3, 132 S. Ct. at 2475.

81 Ragland, supra note 76, 836 N.W.2d at 116.N ebraska A dva n ce S he
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suggested the majority’s decision would invalidate other cases across the nation and reasoned that the dissent would not have raised such a concern if the Court did not intend its holding to apply to cases on collateral review. In People v. Williams

, 82 an Illinois appellate court found it “instructive” that the Court applied the Miller rule to Jackson when he was before the Court on collateral review. And another Illinois appellate court noted the “relief granted to Jackson in Miller tends to indicate that Miller should apply retroactively on collateral review.” 83 Most recently, in Diatchenko v. District Attorney for Suffolk Dist. 84 the highest court in Massachusetts reasoned that because the Court applied the rule to Jackson, “evenhanded justice requires that it be applied retroactively to all who are similarly situated.” Other jurisdictions, however, conclude the Court’s treatment of Jackson is not a relevant factor in the retroactivity analysis. In Com. v. Cunningham

, 85 the Pennsylvania Supreme Court noted that it was not clear the retroactivity issue was before the Court with respect to Jackson and that in the absence of a “specific, principled retroactivity analysis” by the Court, it would not deem the Court to have held the Miller rule applied retroactively just because the Court applied it to Jackson. Similarly, in People v. Carp

, 86 the Michigan Court of Appeals reasoned that the “mere fact that the Court remanded Jackson for resentencing does not constitute a ruling or determination on retroactivity.” Carp further reasoned that the issue of retro

activity was not raised as to Jackson and that thus, the Court had no reason to address it. A federal district court in Virginia has taken a slightly dif

ferent approach. In Johnson v. Ponton

, 87 the court reasoned

82 People v. Williams , 2012 IL App (1st) 111145, ¶ 54, 982 N.E.2d 181, 197, 367 Ill. Dec. 503, 519 (2012).

83 Morfin, supra note 71, ¶ 57, 981 N.E.2d at 1023, 367 Ill. Dec. at 295.

84 Diatchenko, supra note 75, 466 Mass. at 667, ___ N.E.2d at ___.

85 Cunningham, supra note 63, 81 A.3d at 9.

86 Carp, supra note 67, 298 Mich. App. at 518, 828 N.W.2d at 712.

87 Johnson, supra note 64.N ebraska A dva n ce S he
STATE v . MANTICH 339
Cite as 287 Neb. 320
that although the U.S. Supreme Court stated in Teague v. Lane 88 that the retroactivity analysis is a threshold question and a prerequisite for announcement of a new constitutional rule, it has forgone this analysis in at least one recent case. Specifically, in Padilla v. Kentucky

, 89 a petitioner brought a collateral challenge to his conviction. In deciding Padilla , the Court announced a new constitutional rule and applied it to the defendant before it, but did not engage in a retroactivity analy

sis. Later, in Chaidez v. U.S.

, 90 the Court expressly held that the rule it announced in Padilla did not apply retroactively to other cases on collateral review. Based on the Court’s actions in Padilla and Chaidez , the court in Johnson reasoned that the Court’s application of the Miller rule to Jackson was not dispositive of its intent to apply the Miller rule to all cases on collateral review.
(d) Resolution Under the Teague / Schriro retroactivity analysis, the distinc

tion between substance and procedure is important. But how the rule announced in Miller should be categorized is difficult, because it does not neatly fall into the existing definitions of either a procedural rule or a substantive rule. As other courts have noted, the Miller rule certainly contains a procedural component, because it specifically requires that a sentencer follow a certain process before imposing the sentence of life imprisonment on a juvenile. 91 And unlike the holdings in Graham v. Florida 92 and Roper v. Simmons

, 93 the Miller rule does not categorically bar a specific punishment; a State may still constitutionally sentence a juvenile to life imprisonment without parole under Miller

.

88 Teague, supra note 20.

89 Padilla v. Kentucky , 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).

90 Chaidez v. U.S. , ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013).

91 See, In re Morgan, supra note 67; Tate, supra note 61; Chambers, supra

note 65; Cunningham, supra note 63.

92 Graham, supra note 2.

93 Roper, supra note 13.N ebraska A dva n ce S he
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But at the same time, the Miller rule includes a substantive component. Miller did not simply change what entity consid

ered the same facts. 94 And Miller did not simply announce a rule that was designed to enhance accuracy in sentencing. 95 Instead, Miller held that a sentencer must consider specific, individualized factors before handing down a sentence of life imprisonment without parole for a juvenile. Effectively, then, Miller required a sentencer of a juvenile to consider new facts, i.e., mitigation evidence, before imposing a life imprison

ment sentence with no possibility of parole. In our view, this approaches what the Court itself held in Schriro would amount to a new substantive rule: The Court made a certain fact (con

sideration of mitigating evidence) essential to imposition of a sentence of life imprisonment without parole. 96 In other words, it imposed a new requirement as to what a sentencer must consider in order to constitutionally impose life imprisonment without parole on a juvenile. And Miller itself recognized that when mitigating evi

dence is considered, a sentence of life imprisonment with

out parole for a juvenile should be rare. This is consistent with the underlying logic of Miller , based on Graham , that “‘[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortu

nate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’” 97 In essence, Miller “amounts to something close to a de facto substan

tive holding,” 98 because it sets forth the general rule that life imprisonment without parole should not be imposed upon a juvenile except in the rarest of cases where that juvenile can

not be distinguished from an adult based on diminished capac

ity or culpability.

94 Compare Ring, supra note 29.

95 Compare Caldwell, supra note 59.

96 Schriro, supra note 28.

97 Graham, supra note 2, 560 U.S. at 73, quoting Roper, supra note 13.

98 The Supreme Court, 2011 Term—Leading Cases , 126 Harv. L. Rev. 276, 286 (2012).N ebraska A dva n ce S he
STATE v . MANTICH 341
Cite as 287 Neb. 320
The substantive aspect of the Miller rule is also evident when considered in light of the effect of Miller on existing Nebraska law. In response to Miller , the Nebraska Legislature amended the sentencing laws for juveniles convicted of first degree murder. 99 The amendments changed the possible pen

alty for a juvenile convicted of first degree murder from a mandatory sentence of life imprisonment to a “maximum sen

tence of not greater than life imprisonment and a minimum sentence of not less than forty years’ imprisonment.” 100 The Legislature also mandated that in determining the sentence for a juvenile convicted of first degree murder, the sentenc

ing judge “shall consider mitigating factors which led to the commission of the offense.” 101 A juvenile may submit any mitigating factors to the sentencer, including, but not lim

ited to, age at the time of the offense, degree of impetuosity, family and community environment, ability to appreciate the risks and consequences of the conduct, intellectual capac

ity, and the results of a mental health evaluation. 102 We view these as substantive changes to Nebraska law and require

ments that sentencers consider new facts prior to sentencing a juvenile convicted of first degree murder. Most specifically, the fact that Miller required Nebraska to change its substan

tive punishment for the crime of first degree murder when committed by a juvenile from a mandatory sentence of life imprisonment to a sentence of 40 years’ to life imprisonment demonstrates the rule announced in Miller is a substantive change in the law. Moreover, the entire rationale of Miller is that when a sentencing scheme fails to give a sentencer a choice between life imprisonment without parole and something lesser, the scheme is necessarily cruel and unusual. Here, it is undis

puted that Mantich’s sentencer was denied that choice, and it

99 2013 Neb. Laws, L.B. 44 (codified at Neb. Rev. Stat. § 28-105.02 (Supp. 2013)).

100 § 28-105.02(1).

101 § 28-105.02(2).

102 Id

.N ebraska A dva n ce S he
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is the absence of that choice that makes the Miller rule more substantive than procedural. Further, we agree that the Miller rule is entirely substantive when viewed as Massachusetts, Mississippi, and Illinois have—as a categorical ban on the imposition of a mandatory sentence of life imprisonment with

out parole for juveniles. 103 We also find it noteworthy that the Court applied the rule announced in Miller to Jackson, who was before the Court on collateral review. Years ago, the Court stated that it would not announce or apply a new constitutional rule in a case before it on collateral review unless that rule would apply to all defendants on collateral review. 104 The Court specifically adopted this policy in order to ensure that justice is adminis

tered evenhandedly. 105 Although we recognize that the Court has strayed from this policy on one recent occasion, 106 we are not inclined to refuse to apply the rule announced in Miller to a defendant before us on collateral review when the Court has already applied the rule to a defendant before it on collateral review. Evenhanded administration of justice is carried out only if Mantich, like Jackson, is entitled to the benefit of the new rule announced in Miller. 107 As noted by the Supreme Court of Iowa, any other result would be “‘ter

ribly unfair.’” 108 [5] Because the rule announced in Miller is more substan

tive than procedural and because the Court has already applied that rule to a case on collateral review, we conclude that the rule announced in Miller applies retroactively to Mantich. Mantich’s life imprisonment sentence must be vacated, and the cause remanded for resentencing under § 28-105.02.

103 See, Diatchenko, supra note 75; Jones, supra note 74; Morfin, supra

note 71.

104 Penry, supra note 42; Teague, supra note 20.

105 Id.

106 See Padilla, supra note 89.

107 See Diatchenko, supra note 75.

108 Ragland, supra note 76, 836 N.W.2d at 117, quoting Chemerinsky, supra

note 77.N ebraska A dva n ce S he
STATE v . MANTICH 343
Cite as 287 Neb. 320

2. O ther C lai In Mantich’s original appeal, he argued that his sentence of life imprisonment without parole was categorically invalid under Graham v. Florida

. 109 Graham held that a juvenile con

victed of a nonhomicide offense cannot be sentenced to life imprisonment without parole. Mantich invites us to extend this holding to a juvenile convicted of felony murder. Because we find Mantich is entitled to be resentenced under the dictates of Miller , we do not reach this argument in this appeal. If Mantich, on remand, is resentenced to life impris

onment with no minimum term which permits parole eligi

bility, he may raise the Graham argument in an appeal from that sentence. Likewise, in view of our disposition, we need not reach Mantich’s claim that his counsel was ineffective in failing to assert an Eighth Amendment challenge at his original sentenc

ing and on direct appeal.

V. CONCLUSION The rule announced in Miller applies retroactively to Mantich. We remand the cause with directions to grant post

conviction relief by vacating his life imprisonment sentence and resentencing him pursuant to § 28-105.02. 110 S e n te n ce vacated , a n d

rema n ded for rese n te n c

109 Graham, supra note 2.

110 See Castaneda, supra note 19.

C assel , J., dissenting I respectfully dissent. First, I believe the rule from Miller v. Alabama 1 is a procedural rule that should not be applied retro

actively on collateral review. Second, I would find Mantich’s other claimed errors to be without merit. Thus, I would affirm the decision of the district court.

1 Miller v. Alabama , ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407

(2012).N ebraska A dva n ce S he
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RETROACTIVITY OF MILLER V. ALABAMA As the majority observed, the rule announced in Miller does not fall conveniently into the existing definitions of either a procedural rule or a substantive rule. But I believe the better approach would be to join the majority of jurisdictions that have ruled on this issue and conclude that the rule announced in Miller is a procedural one. 2 Unlike the rules announced in Graham v. Florida 3 and Roper v. Simmons

, 4 Miller did not categorically bar a spe

cific punishment. The Miller Court specifically noted that its decision “mandate[d] only that a sentencer follow a cer

tain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty.” 5 Miller simply does not fall into the narrow category of a substan

tive rule, because no juvenile sentenced to life imprisonment without parole in Nebraska “faces a punishment that the law cannot impose upon him.” 6 Although the process by which a juvenile may be sentenced to life imprisonment without parole now changes based upon Miller , the ultimate sentence of life imprisonment without parole for a juvenile is still a legitimate sentence. The U.S. Supreme Court has never indicated that anything less than a full categorical ban on a sentence may be

2 See, In re Morgan , 717 F.3d 1186 (11th Cir. 2013) (en banc); Holland v.

Hobbs , No. 5:12CV00463-SWW-JJV, 2013 WL 6332731 (E.D. Ark. Dec. 5, 2013); Johnson v. Ponton , No. 3:13-CV-404, 2013 WL 5663068 (E.D. Va. Oct. 16, 2013) (memorandum opinion); Geter v. State , 115 So. 3d 375 (Fla. App. 2012); State v. Tate , No. 2012-OK-2763, 2013 WL 5912118 (La. Nov. 5, 2013); People v. Carp , 298 Mich. App. 472, 828 N.W.2d 685 (2012); Chambers v. State , 831 N.W.2d 311 (Minn. 2013); Com. v. Cunningham , 81 A.3d 1 (Pa. 2013); Craig v. Cain , No. 12-30035, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (unpublished opinion).

3 Graham v. Florida , 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825

(2010).

4 Roper v. Simmons , 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

5 Miller, supra note 1, 132 S. Ct. at 2471.

6 Schriro v. Summerlin , 542 U.S. 348, 352, 124 S. Ct. 2519, 159 L. Ed. 2d

442 (2004).N ebraska A dva n ce S he
STATE v . MANTICH 345
Cite as 287 Neb. 320
a new substantive rule, and in my view, we should decline to do so in the first instance. I am not persuaded that the U.S. Supreme Court established a precedent of retroactive application of the Miller rule sim

ply by applying the rule to a defendant before it on collateral review. A new rule is not made retroactive to cases on col

lateral review unless the Court holds it to be retroactive. 7 And a state can waive the Teague v. Lane 8 retroactivity bar by not raising it. 9 The Court likely did not address the retroactivity issue in Miller because the State of Arkansas did not argue that any new rule announced would not apply to Jackson, who was before the Court on collateral review. I do not believe that we should interpret silence as an affirmative holding that the Miller rule is to apply retroactively to defendants on col

lateral review. Further, I find it persuasive that the Court has recently demonstrated in Padilla v. Kentucky 10 and Chaidez v. U.S. 11 that its announcement of a new constitutional rule in a case before it on collateral review is not a determina

tion of whether that rule should apply to all cases on collat

eral review. In my view, the rule announced in Miller is not a “‘“water

shed rule[] of criminal procedure” implicating the fundamental fairness and accuracy of the criminal proceeding.’” 12 To qualify as a watershed rule, a new rule must both be necessary to prevent an impermissibly large risk of an inaccurate convic

tion and alter our understanding of the bedrock procedural principles essential to the fairness of a proceeding. 13 The Court has repeatedly emphasized that the watershed exception is

7 Tyler v. Cain , 533 U.S. 656, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001).

8 Teague v. Lane , 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).

9 Schiro v. Farley , 510 U.S. 222, 114 S. Ct. 783, 127 L. Ed. 2d 47 (1994).

10 Padilla v. Kentucky , 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284

(2010).

11 Chaidez v. U.S. , ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013).

12 Schriro, supra note 6, 542 U.S. at 355.

13 Whorton v. Bockting , 549 U.S. 406, 127 S. Ct. 1173, 167 L. Ed. 2d 1

(2007).N ebraska A dva n ce S he
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extremely narrow and, since Teague , has yet to find a new rule that fits within the exception. 14 The only case that has ever sat

isfied this high threshold is Gideon v. Wainwright

, 15 in which the Court held that counsel must be appointed for any indigent defendant charged with a felony. The rule announced in Miller relates only to the sentenc

ing stage of a criminal proceeding and, thus, cannot be said to be necessary to prevent an impermissibly large risk of an inaccurate conviction. In addition, it is not a rule announcing a “previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding.” 16 While the rule announced in Miller was important, it did not effect a sweep

ing change comparable to Gideon . These reasons further sup

port not applying the rule announced in Miller retroactively to Mantich on collateral review. Our judicial process favors the finality of judgments. As noted by the majority, Mantich’s life imprisonment sentence was imposed and became final long before the decision in Miller was announced. There is an important interest in the finality of judgments that must be respected. I agree with the assessment of another court that “applying Miller retroactively ‘would undermine the perceived and actual finality of criminal judgments and would consume immense judicial resources without any corresponding benefit to the accuracy or reliability of the [underlying criminal case].’” 17 At least to a certain degree, some of the minority of courts addressing whether the Miller decision was substantive or procedural have relied upon perceptions of fairness between those whose direct appeals were still pending and those whose cases had already been finally determined. This is a danger

ous expansion of the power of judges, because it places no principled limit upon the scope of judicial power. While the distinction between procedural and substantive may be difficult

14 Id . (citing cases).

15 Gideon v. Wainright , 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).

16 Whorton, supra note 13, 549 U.S. at 421.

17 Geter, supra note 2, 115 So. 3d at 383-84.N ebraska A dva n ce S he
STATE v . MANTICH 347
Cite as 287 Neb. 320
to apply, it affords a principled basis for decision. If a judge allows his or her perceptions of fairness to intrude, the decision ceases to be an application of law and becomes an application of the judge’s personal biases and preferences. In my view, the existing legal framework drives the answer to the question before this court and dictates that the change is procedural. As a judge, my role goes no further.

OTHER CLAIMS
G r a h am v . F lorid a A r In his original appeal, Mantich argued that his sentence of life imprisonment without parole was categorically invalid under Graham v. Florida

. 18 Graham held that a juvenile con

victed of a nonhomicide offense cannot be sentenced to life imprisonment without parole. Mantich asked us to extend this holding to a juvenile convicted of felony murder. I would find that Mantich’s postconviction claim based on Graham is not procedurally barred. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased. 19 Graham was decided in 2010, long after this court affirmed Mantich’s conviction and life imprisonment sentence for first degree murder. Graham was the first case in which the U.S. Supreme Court imposed a categorical bar on life impris

onment sentences for a specific class of offenders. Mantich could not have asserted his Graham claim at trial or on direct appeal, because the Eighth Amendment jurisprudence at that time did not support a categorical bar on life imprisonment
sentences. 20 Therefore, it is not procedurally barred and its merits can be addressed. The issue decided by the U.S. Supreme Court in Graham was “whether the Constitution permits a juvenile offender to be sentenced to life in prison without parole for a nonhomicide

18 Graham, supra note 3.

19 State v. Boppre , 280 Neb. 774, 790 N.W.2d 417 (2010).

20 See State v. El-Tabech , 259 Neb. 509, 610 N.W.2d 737 (2000).N ebraska A dva n ce S he
348 287 NEBRASKA REPORTS

crime.” 21 The defendant was sentenced to life imprisonment, which carried no possibility of release except through execu

tive clemency. 22 The Court held, as a matter of first impression, that “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” 23 The Court specifically limited its holding to “only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.” 24 The Court distinguished homi

cide cases, noting: There is a line “between homicide and other serious violent offenses against the individual.” . . . Serious non

homicide crimes “may be devastating in their harm . . . but ‘in terms of moral depravity and of the injury to the person and to the public,’ . . . they cannot be compared to murder in their ‘severity and irrevocability.’” . . . This is because “[l]ife is over for the victim of the murderer,” but for the victim of even a very serious nonhomicide crime, “life . . . is not over and normally is not beyond repair.” . . . Although an offense like robbery or rape is “a serious crime deserving serious punishment,” . . . those crimes differ from homicide crimes in a moral sense. It follows that, when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the offender and the nature of the crime each bear on the analysis. 25 We have considered the scope of Graham in one prior

case. State v. Golka 26 involved a postconviction appeal by an offender who had been sentenced to two consecutive terms of life imprisonment for two first degree murders committed when he was 17 years old. His postconviction motion alleged

21 Graham, supra note 3, 560 U.S. at 52-53.

22 Graham, supra note 3.

23 Id. , 560 U.S. at 74.

24 Id. , 560 U.S. at 63.

25 Id. , 560 U.S. at 69 (citations omitted).

26 State v. Golka , 281 Neb. 360, 796 N.W.2d 198 (2011).N ebraska A dva n ce S he
STATE v . MANTICH 349
Cite as 287 Neb. 320
that the sentences constituted cruel and unusual punishment in violation of the 8th and 14th Amendments to the U.S. Constitution and article I, § 9, of the Nebraska Constitution. That claim was rejected by the district court, and Graham was decided during the pendency of the appeal. In affirming the denial of postconviction relief, we agreed with two other state courts which had held that Graham does not preclude life imprisonment sentences for juvenile offenders convicted of murder. 27Mantich argues that his crime must be considered a “‘nonhomicide’” offense under Graham because there was no find

ing at trial or sentencing that he killed or intended to kill Thompson. 28 He argues that he was at most a “minor par

ticipant” in the murder. 29 He bases this argument primarily
upon Enmund v. Florida 30 and Tison v. Arizona

, 31 both of which were appeals from death sentences. In Enmund , the U.S. Supreme Court held that the Eighth Amendment did not permit imposing “the death penalty on [a person] who aids and abets a felony in the course of which a murder is com

mitted by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.” 32 In Tison , the Court held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpabil

ity requirement” for imposition of the death penalty. 33 Both Enmund and Tison addressed the issue of when a murderer’s conduct was sufficiently culpable to warrant imposition of the maximum penalty of death. Although the Court in Graham

27 Id. (citing Jackson v. Norris , 2011 Ark. 49, 378 S.W.3d 103 (2011), reversed, Miller, supra note 1; State v. Andrews , 329 S.W.3d 369 (Mo. 2010)).

28 Brief for appellant at 22.

29 Id. at 21.

30 Enmund v. Florida , 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982).

31 Tison v. Arizona , 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987).

32 Enmund, supra note 30, 458 U.S. at 797.

33 Tison, supra note 31, 481 U.S. at 158.N ebraska A dva n ce S he
350 287 NEBRASKA REPORTS

cited Enmund in support of its reasoning with respect to rela

tive culpability, I do not interpret that citation as permitting a homicide to be considered a “nonhomicide” offense for pur

poses of sentencing, as Mantich urges. Admittedly, the reasoning in Miller v. Alabama 34 offers some support for Mantich’s argument. As noted, in Miller , the Court reasoned that because individualized sentencing was required for adults in cases involving imposition of the death penalty, the greatest possible penalty imposed upon an adult, individualized sentencing was also required for juveniles in cases involving imposition of the penalty of life imprisonment without parole, the greatest possible penalty imposed upon a juvenile. Mantich argues that because the Court equated death for adults with life imprisonment for juveniles in one context, all of the Court’s previous requirements for constitu

tional imposition of the death penalty on adults now apply to constitutional imposition of life imprisonment without parole on juveniles. Particularly, he contends that the Enmund / Tison rationale is now directly applicable to him and that he cannot be sentenced to the greatest possible punishment available because there has been no showing that he killed or intended to kill. The record contains some evidence concerning intent to kill. During Mantich’s sentencing hearing, the court addressed the question of who pulled the trigger and stated: You admitted on two separate occasions separated by a month that you in fact fired the shot which killed . . . Thompson. The admission you made directly after the incident and particularly coupled with the admission to law enforce

ment personnel a month later with thoughts, feelings, and corroboration which would go along with the murder of someone certainly strongly suggests that you in factpulled the trigger. The murder of . . . Thompson at pointblank range by putting a gun against his head and firing it is brutal beyond description and cold. . . .

34 Miller, supra note 1.N ebraska A dva n ce S he
STATE v . MANTICH 351
Cite as 287 Neb. 320
You murdered a blameless person . . . Mantich. One who had every right and expectation to lead his life with

out being subjected to a mindless, violent death carried out by you. And on direct appeal, with regard to the insufficient evidence claim, we wrote: The facts taken in the light most favorable to the State are such that a finder of fact could conclude beyond a reasonable doubt that Mantich committed murder while aiding and abetting in the kidnapping and robbery of Thompson and used a firearm to commit a felony. There is sufficient evidence to demonstrate that Mantich aided and abetted the kidnapping and robbery perpetrated against Thompson. When Eona and Brunzo left the party and returned with the stolen van, Mantich joined them over the strong objections and physical restraint of his girl friend. Mantich testified that he heard Eona and Brunzo tell Thompson they were going to kill him, and Mantich watched as Eona and Brunzo repeatedly jabbed Thompson in the head with the barrels of their guns. Mantich’s statement to police was sufficient to establish that he was handed a gun, placed the gun against the back of Thompson’s head, and pulled the trigger. Even if the jury was uncertain as to whether Mantich actually shot Thompson, the evidence supports the jury’s finding that Mantich aided and abetted in the kidnap

ping and robbery of Thompson. It was undisputed that Thompson was killed by someone in the van while the group was kidnapping, robbing, and terrorizing him. The group forcibly restrained Thompson with the express intent of robbing and terrorizing him. The evidence shows that Mantich encouraged these activities and participated in the verbal terrorization of Thompson. This evidence is sufficient to convict Mantich of felony murder and use of a weapon to commit a felony. 35

35 State v. Mantich , 249 Neb. 311, 328-29, 543 N.W.2d 181, 193-94 (1996).N ebraska A dva n ce S he
352 287 NEBRASKA REPORTS

Even if the record did not demonstrate that Mantich either killed or intended to kill, I would not extend the Court’s hold

ing in Graham to a juvenile convicted of felony murder. At the time Mantich committed his crime, the sentence in Nebraska for first degree murder was either mandatory life imprison

ment or death. 36 Graham held that the Eighth Amendment prohibited sentencing a juvenile to the maximum penalty of life imprisonment without parole for the nonhomicide offense which the juvenile committed. That is a far different issue than whether the Eighth Amendment prohibits imposing the minimum sentence of life imprisonment without parole on a juvenile who committed first degree murder. As the Court noted in Graham

, nonhomicide crimes “differ from homicide crimes in a moral sense.” 37 I would urge that we join the other jurisdictions which have held that Graham has no application to a juvenile convicted of a homicide offense under a felony murder theory. 38

U n co n stitutio n D isproportio n ate C l Unlike Mantich’s argument based on Graham , his claim that his life imprisonment sentence was unconstitutionally dis

proportionate to his crime could have been raised at the time of sentencing and on direct appeal. The constitutional prin

ciple of proportionality was well established at the time of Mantich’s first degree murder conviction. 39 Because the issue was not raised at sentencing or on direct appeal, it is proce

durally barred in this postconviction proceeding. However, I will address the merits of the issue in the context of Mantich’s claim that his trial and appellate counsel was ineffective in fail

ing to raise it.

36 See Neb. Rev. Stat. §§ 28-105 (Reissue 1989) and 28-303 (Reissue 1995).

37 Graham, supra note 3, 560 U.S. at 69.

38 See, Arrington v. State , 113 So. 3d 20 (Fla. App. 2012); Jackson, supra note 27; Bell v. State , 2011 Ark. 379, 2011 WL 4396975 (2011) (unpublished opinion).

39 See, Solem v. Helm , 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); Weems v. United States , 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910).N ebraska A dva n ce S he
STATE v . MANTICH 353
Cite as 287 Neb. 320

I n effective n ess of T ria A ppellate C ou n When a defendant was represented both at trial and on direct appeal by the same lawyers, generally speaking, the defend

ant’s first opportunity to assert an ineffective assistance of trial counsel claim is in a motion for postconviction relief. 40 That is the circumstance here. The record shows that Mantich was rep

resented at trial and on direct appeal by the same attorney. He alleged in his postconviction motion that his counsel was inef

fective in failing to argue at sentencing and on direct appeal that a life imprisonment sentence would constitute cruel and unusual punishment. In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland v. Washington

, 41 to show that counsel’s performance was deficient and that coun

sel’s deficient performance prejudiced the defense. 42 In order to show prejudice, the defendant must demonstrate a reason

able probability that but for counsel’s deficient performance, the result of the proceeding would have been different. 43 The two prongs of this test, deficient performance and prejudice, may be addressed in either order. 44 The entire ineffectiveness analysis is viewed with the strong presumption that coun

sel’s actions were reasonable. 45 Defense counsel is not inef

fective for failing to raise an argument that has no merit. 46 Accordingly, I will examine the merit of Mantich’s claim that his life imprisonment sentence is unconstitutionally dispropor

tionate to his crime. The Eighth Amendment “prohibits not only barbaric pun

ishments, but also sentences that are disproportionate to the

40 State v. McHenry , 268 Neb. 219, 682 N.W.2d 212 (2004).

41 Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

42 State v. McGhee , 280 Neb. 558, 787 N.W.2d 700 (2010).

43 Id.

44 Id.

45 State v. Bazer , 276 Neb. 7, 751 N.W.2d 619 (2008).

46 State v. Vo , 279 Neb. 964, 783 N.W.2d 416 (2010).N ebraska A dva n ce S he
354 287 NEBRASKA REPORTS

crime committed.” 47 The U.S. Supreme Court has character

ized this as a “‘narrow proportionality principle’” 48 which “‘does not require strict proportionality between crime and sentence,’” 49 but, rather, “‘forbids only extreme sentences that are “grossly disproportionate” to the crime.’” 50 The Court has identified objective criteria which should guide an Eighth Amendment proportionality analysis, including “(i) the gravity of the offense and the harshness of the penalty; (ii) the sen

tences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” 51 But “intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold com

parison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” 52 Courts must give “‘substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes,’” bearing in mind that the Eighth Amendment “does not mandate adoption of any one penological theory” and “marked divergences both in under

lying theories of sentencing and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure.” 53 The “culpability of the offender” is also a factor in the analysis. 54 In its most recent application of these

47 Solem, supra note 39, 463 U.S. at 284.

48 Ewing v. California , 538 U.S. 11, 20, 24, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003), quoting Harmelin v. Michigan , 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment). See, also, Solem, supra note 39.

49 Ewing, supra note 48, 538 U.S. at 23, quoting Harmelin, supra note 48 (Kennedy, J., concurring in part and concurring in judgment).

50 Id.

51 Solem, supra note 39, 463 U.S. at 292.

52 Harmelin, supra note 48, 501 U.S. at 1005 (Kennedy, J., concurring in part and concurring in judgment). See, also, Ewing, supra note 48.

53 Harmelin, supra note 48, 501 U.S. at 999 (Kennedy, J., concurring in part and concurring in judgment).

54 Solem, supra note 39, 463 U.S. at 292.N ebraska A dva n ce S he
STATE v . MANTICH 355
Cite as 287 Neb. 320
principles to a sentence of imprisonment, the U.S. Supreme Court in Ewing v. California 55 upheld a sentence of 25 years’ to life imprisonment for grand theft under California’s “three strikes law,” concluding that it was not “‘the rare case in which a threshold comparison of the crime commit

ted and the sentence imposed leads to an inference of gross disproportionality.’” 56 The same conclusion is inescapable here. First degree mur

der is the most serious criminal offense defined by Nebraska law. “[I]n terms of moral depravity and of the injury to the person and to the public,” other serious crimes do “not com

pare with murder.” 57 Mantich received the minimum sentence which can be given to one convicted of first degree murder. Although he seeks to minimize his personal involvement in the events which led to the death of Thompson, we noted on direct appeal that “Mantich’s statement to police was sufficient to establish that he was handed a gun, placed the gun against the back of Thompson’s head, and pulled the trigger.” 58 We further noted that the group robbed, terrorized, and forcibly restrained Thompson and that “Mantich encouraged these activities and participated in the verbal terrorization.” 59 Mantich cites several state court decisions from other jurisdictions in support of his Eighth Amendment argument. But those cases are either distinguishable on the facts or oth

erwise unpersuasive. Considering the gravity of the offense and all of the relevant facts and circumstances, notwith

standing Mantich’s youth, there is no basis for a “threshold inference” 60 that his sentence was grossly disproportionate to his crime. Because Mantich’s Eighth Amendment claim is

55 Ewing, supra note 48.

56 Id. , 538 U.S. at 30, quoting Harmelin, supra note 48 (Kennedy, J., concurring in part and concurring in judgment).

57 Coker v. Georgia , 433 U.S. 584, 598, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977). See, also, Graham, supra note 3.

58 Mantich, supra note 35, 249 Neb. at 328, 543 N.W.2d at 194.

59 Id . at 329, 543 N.W.2d at 194.

60 See Graham, supra note 3, 560 U.S. at 93 (Roberts, J., concurring in

judgment).N ebraska A dva n ce S he
356 287 NEBRASKA REPORTS

without merit under either alternative formulation, his coun

sel was not ineffective in not asserting it at sentencing or on direct appeal.

CONCLUSION To summarize, in my view, the rule announced in Miller is procedural and does not apply to Mantich on collateral review. I would find that Graham has no application to Mantich’s sentence of life imprisonment for first degree felony murder, a homicide, and that Mantich’s alternative claim that his sen

tence was grossly disproportionate to his crime is procedurally barred. Because these claims are without merit, Mantich’s trial and appellate counsel was not ineffective in failing to assert them. And because the files and records conclusively show that Mantich’s motion for postconviction relief is without merit, the district court did not err in denying the requested relief without conducting an evidentiary hearing. I would affirm the decision of the district court. H eavica n , C.J., joins in this dissen

S tate of N ebraska , appellee , v

.

E ric A

. R amirez , appell ___ N.W.2d ___

Filed February 7, 2014. No. S-11-486.

1. **Rules of Evidence.** In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in deter

mining admissibility. 2. **Rules of Evidence: Appeal and Error.** Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. 3. **Judgments: Words and Phrases.** An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. 4. **Trial: Evidence: Appeal and Error.** An appellate court reviews the trial court’s conclusions with regard to evidentiary foundation and witness qualification for an abuse of discretion.