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Nebraska Supreme Court Advance S

299 Nebraska Report

STATE v. EPP

Cite as 299 Neb. 703

State of Nebraska, appellee, v.

William A. Epp, appella

___ N.W.2d ___

Filed April 20, 2018. No. S-17-297.

1. Limitations of Actions. If the facts in a case are undisputed, the issue 

as to when the statute of limitations begins to run is a question of law.

2. Postconviction: Right to Counsel: Appeal and Error. Failure to 

appoint counsel in postconviction proceedings is not error in the absence 

of an abuse of discretion.

3. Constitutional Law: Rules of the Supreme Court: Courts: Statutes. 

Strict compliance with Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) is necessary whenever a litigant challenges the constitutionality of a statute, 

regardless of how that constitutional challenge may be characterized.

4. Postconviction: Proof. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively 

show that the defendant is entitled to no relief, the court is not required 

to grant an evidentiary hearing.

5. Postconviction: Justiciable Issues: Right to Counsel: Appeal and 

Error. Where the assigned errors in the postconviction petition before 

the district court are either procedurally barred or without merit, establishing that the postconviction action contained no justiciable issue of 

law or fact, it is not an abuse of discretion to fail to appoint appellate 

counsel for an indigent defendant.

Appeal from the District Court for Gage County: Vicky 

Johnson, Judge. Affirme

William A. Epp, pro se.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman 

for appellee.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/06/2018 01:11 AM CDT
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Nebraska Supreme Court Advance S

299 Nebraska Report

STATE v. EPP

Cite as 299 Neb. 703

Heavican, C.J., Miller-Lerman, and Stacy, JJ., a

and O’Gorman, District Judge

Heavican, C

NATURE OF CASE

This case presents an appeal from the dismissal of a motion 

for postconviction relief without an evidentiary hearing or 

the appointment of counsel. The district court dismissed the 

motion as filed outside the 1-year limitations period set forth in 

Neb. Rev. Stat. § 29-3001 (Reissue 2016). We affirm.

BACKGROUND

In 2007, William A. Epp was charged with robbery, use 

of a deadly weapon to commit a felony, and possession of a 

deadly weapon by a felon. The information also alleged that 

Epp was a habitual criminal. A jury convicted Epp of robbery 

and possession of a deadly weapon by a felon, but acquitted 

him of use of a deadly weapon to commit a felony. Epp was 

sentenced to 60 to 60 years’ imprisonment on both his conviction for robbery and his conviction for possession of a deadly 

weapon by a felon. The court ordered the sentences to be 

served consecutively.

Epp appealed his convictions and sentences, which were 

affirmed by this court.1 As pertinent here, we found in State 

v. Epp2 that we did not need to address Epp’s argument 

that Neb. Rev. Stat. § 25-1233 (Reissue 2016), which limits transportation of inmate witnesses, was unconstitutional, 

because the trial court did not err in finding that the inmate 

testimony Epp proffered was inadmissible hearsay. We also 

rejected Epp’s argument that there was insufficient evidence 

supporting his conviction for possession of a deadly weapon 

by a felon. Finally, we rejected Epp’s argument that the trial 

court had erred in admitting evidence supporting habitual 

1 See State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).

2 Id.
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Nebraska Supreme Court Advance S

299 Nebraska Report

STATE v. EPP

Cite as 299 Neb. 703

criminal enhancement. Epp’s sentences became final on 

October 27, 2009.

Epp filed a motion for postconviction relief on November 

28, 2016, alleging four claims for relief. Epp alleged, first, 

that the 1-year period of limitation set forth in § 29-3001 

violated the ex post facto clauses of the U.S. and Nebraska 

Constitutions. Second, Epp alleged that Neb. Rev. Stat. 

§ 29-2221 (Reissue 2016) violates the Sixth Amendment right 

to an impartial jury by allowing a judge instead of a jury to 

find the existence of prior convictions. Third, Epp alleged 

there was insufficient evidence for his conviction of possession of a deadly weapon by a felon, which conviction was 

allegedly inconsistent with the jury’s acquittal on the charge 

of use of a deadly weapon to commit a felony. Fourth, Epp 

alleged that § 25-1233 violated equal protection under the 

U.S. and Nebraska Constitutions.

The district court dismissed Epp’s motion without an evidentiary hearing or the appointment of counsel. The court 

found that the postconviction motion was barred by the 

1-year period of limitation set forth in § 29-3001(4)(e), which 

provides that the 1-year period will run from the date of 

August 27, 2011 (the effective date of the statute’s enactment), if the other subsections do not apply. The court found 

no merit to Epp’s argument that the limitations period was 

unconstitutional.

Alternatively to the court’s conclusion that the motion was 

filed outside the 1-year limitations period, the court concluded 

that the allegations in the motion for postconviction relief 

either failed to state a claim that Epp’s convictions were void 

or voidable, lacked merit as a matter of law, or were procedurally barred. Specifically, the court found that Epp’s claim 

regarding the constitutionality of § 29-3001(4)(e) failed to 

allege a constitutional violation that would render his convictions void or voidable; thus, it did not present a valid claim 

for postconviction relief. The court concluded Epp’s argument 
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Nebraska Supreme Court Advance S

299 Nebraska Report

STATE v. EPP

Cite as 299 Neb. 703

regarding § 29-2221 had no merit and has been rejected by 

this court in State v. Johnson.

3

 Lastly, the court found that 

Epp’s claims challenging the constitutionality of § 25-1233 

and the sufficiency of the evidence to support his conviction 

for felon in possession were litigated on direct appeal and, 

therefore, procedurally barred.

Epp appealed. We moved the appeal to our docket on our 

own motion, in accordance with this court’s authority to regulate the caseloads of the appellate courts of this state.4

 Epp 

did not file notice that he was raising an issue involving the 

constitutionality of a statute as required by Neb. Ct. R. App. P. 

§ 2-109(E) (rev. 2014).

ASSIGNMENTS OF ERROR

Epp assigns that the district court erred in failing to (1) 

grant an evidentiary hearing, (2) appoint counsel, and (3) grant 

postconviction relief.

STANDARD OF REVIEW

[1] If the facts in a case are undisputed, the issue as to when 

thestatute of limitations begins to run is a question of law.5

[2] Failure to appoint counsel in postconviction proceedings 

is not error in the absence of an abuse of discretion.6

ANALYSIS

Postconviction motions are subject to the limitations period 

set forth in § 29-3001(4), which states:

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:

3 State v. Johnson, 290 Neb. 369, 859 N.W.2d 877 (2015).

4 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

5 State v. Huggins, 291 Neb. 443, 866 N.W.2d 80 (2015).

6 State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).
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Nebraska Supreme Court Advance S

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STATE v. EPP

Cite as 299 Neb. 703

(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;

(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.

The parties agree that subsections (4)(a) through (d) do not 

apply. Under the facts of this case, the latest date from which 

the 1-year limitations period runs is August 27, 2011, as set 

forth in § 29-3001(4)(e). Epp argues, however, that application of any provision of § 29-3001 violates the ex post facto 

clauses of the U.S. and Nebraska Constitutions.7

[3] Epp did not file notice as required by § 2-109(E). 

Section 2-109(E) requires that a party presenting a case involving the federal or state constitutionality of a statute must file 

and serve notice thereof with the Supreme Court Clerk by a 

separate written notice in a petition to bypass at the time of 

filing such party’s brief. Strict compliance with § 2-109(E) is 

necessary whenever a litigant challenges the constitutionality 

of a statute, regardless of how that constitutional challenge 

may be characterized.8 Therefore, we do not address Epp’s 

7 U.S. Const. art. I, § 10, and Neb. Const. art. I, § 16.

8 State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
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STATE v. EPP

Cite as 299 Neb. 703

claim that § 29-3001(4)(e) violates prohibitions against ex post 

facto laws. However, we note that we recently held in State 

v. Amaya9 that § 29-3001 does not violate the ex post facto 

clauses of the U.S. and Nebraska Constitutions.

[4] There is no dispute that Epp’s motion for postconviction 

relief, filed on November 28, 2016, was outside the 1-year 

limitations period set forth in § 29-3001(4)(e). Accordingly, 

the district court did not err in dismissing the motion as outside the limitations period without conducting an evidentiary 

hearing. If a postconviction motion alleges only conclusions of 

fact or law, or if the records and files in the case affirmatively 

show that the defendant is entitled to no relief, the court is not 

required to grant an evidentiary hearing.10

[5] For similar reasons, the district court did not err in 

denying Epp’s motion for appointment of counsel. Under the 

Nebraska Postconviction Act, it is within the discretion of the 

trial court as to whether counsel shall be appointed to represent the defendant.11 Where the assigned errors in the postconviction petition before the district court are either procedurally 

barred or without merit, establishing that the postconviction 

action contained no justiciable issue of law or fact, it is not 

an abuse of discretion to fail to appoint appellate counsel for 

an indigent defendant.12 Epp’s motion presented no justiciable 

issue of law or fact because it was barred by the limitations 

period set forth by § 29-3001(4)(e).

CONCLUSION

Because Epp’s motion for postconviction relief was filed 

more than 1 year from August 27, 2011, it was untimely.13 We 

9 State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017).

10 State v. Goynes, 293 Neb. 288, 876 N.W.2d 912 (2016).

11 State v. Custer, 298 Neb. 279, 903 N.W.2d 911 (2017).

12 Id.

13 See § 29-3001(4)(e).
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Nebraska Supreme Court Advance S

299 Nebraska Report

STATE v. EPP

Cite as 299 Neb. 703

affirm the district court’s dismissal of the motion without an 

evidentiary hearing or the appointment of counsel.

Affirmed

Funke, J., participating on brief

Wright and Cassel, JJ., not participating