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STATE v. HILL

Cite as 308 Neb. 511

State of Nebraska, appellee, 

v. Teon D. Hill, appellant.

___ N.W.2d ___

Filed February 26, 2021. No. S-20-429.

1. Criminal Law: Motions for New Trial: Evidence: Appeal and Error.

A de novo standard of review applies when an appellate court is reviewing a trial court’s dismissal of a motion for a new trial under Neb. 

Rev. Stat. § 29-2102(2) (Reissue 2016) without conducting an evidentiary hearing.

2. Criminal Law: Motions for New Trial: Evidence. Neb. Rev. Stat. 

§ 29-2102 (Reissue 2016) sets out what evidence must accompany a 

motion for new trial.

Appeal from the District Court for Douglas County: 

Kimberly Miller Pankonin, Judge. Affirmed.

Gregory A. Pivovar for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Papik, JJ.

Miller-Lerman, J.

NATURE OF CASE

Teon D. Hill appeals the order of the district court for 

Douglas County which dismissed his motion for new trial 

based on newly discovered evidence. We affirm.

Nebraska Supreme Court Online Library

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

03/05/2021 09:07 AM CST
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STATEMENT OF FACTS

Following a jury trial in 2016, Hill was convicted of first 

degree murder and two counts of possession of a deadly weapon 

by a prohibited person. The district court sentenced Hill to 

imprisonment for life for the murder conviction and to 15 to 20 

years’ imprisonment for each of the weapon convictions. The 

court ordered the sentences for the weapon convictions to be 

served concurrently with one another and consecutively to the 

sentence for the murder conviction. We affirmed Hill’s convictions and sentences in a decision filed January 19, 2018. State 

v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018).

On January 16, 2019, Hill filed a pro se motion that he titled 

“Motion for New Trial.” In the motion, Hill stated that he was 

moving for a new trial based on “errors in the proceedings.” He 

referred to the new trial statutes, Neb. Rev. Stat. §§ 29-2101 

through 29-2103 (Reissue 2016), and stated that the statutes 

allow a defendant to bring a motion for new trial based upon 

newly discovered evidence within 5 years of the date of the 

verdict. Section 29-2101 provides that a defendant may move 

for a new trial on certain specified grounds, including “(5) 

newly discovered evidence material for the defendant which 

he or she could not with reasonable diligence have discovered 

and produced at the trial.” Section 29-2103(3) provides that 

for most of the grounds listed in § 29-2101, the motion must 

be filed within 10 days after the verdict, but § 29-2103(4) provides that a motion for new trial based on § 29-2101(5) “shall 

be filed within a reasonable time after the discovery of the new 

evidence” and generally “cannot be filed more than five years 

after the date of the verdict.”

The motion filed by Hill was 58 pages long, with 60 pages 

of attachments. The motion contained a narrative consisting of 

over 100 paragraphs of allegations. The first several paragraphs 

contained general allegations of various “irregularities” in the 

proceedings, as well as “ineffective assistance of counsel” 

and “prosecutorial misconduct” that, Hill contended, entitled 

him to a new trial. He also claimed that “the verdict cannot 
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be sustained by sufficient evidence and is contrary to the 

law.” Hill alleged that “the material for his defense is newly 

discovered evidence that could not have been discovered, with 

reasonable diligence, prior to the time of his trial.” He further 

alleged that “all facts in this motion was [sic] only discovered 

once he was able to examine the documents which was [sic] 

received on March 10th 2018 long after his trial.” The remaining paragraphs included numerous allegations, some of which 

he grouped in categories, including “due process rights were 

violated,” “irregularities and misconduct before, during and 

after the proceedings,” and “[a]ctual innocent [sic] claim[s].” 

None of the attachments were “in the form of affidavits, depositions, or oral testimony,” in violation of § 29-2102(1).

On February 18, 2019, the district court entered an order in 

which it directed the State to file a response to Hill’s motion 

for new trial within 90 days. Hill objected to the order and 

contended that the new trial statutes do not allow for a response 

by the State before the court has decided whether the motion 

warrants a hearing and that instead, the statutes provide that the 

motion is to be served on the prosecuting attorney only after 

the court has determined that a hearing on the motion should 

be granted. The court overruled Hill’s objection and reasoned 

that the new trial statutes did not prohibit the court from seeking a response from the State before it ruled on whether Hill’s 

motion set forth sufficient facts to warrant a hearing. The court 

stated that its order was not made pursuant to procedure outlined in the statutes, but instead pursuant to its “inherent power 

to request legal argument from a party on a pending motion 

before it.”

On May 21, 2019, the State filed a response in which it 

argued that Hill’s motion failed to set forth sufficient facts 

and should therefore be dismissed without a hearing pursuant to § 29-2102(2). The State contended that Hill’s motion 

could “be viewed as a complaint as to how his trial was 

handled” and noted that “the vast majority of paragraphs in the 

motion start out with the phrase ‘there was irregularities and 
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misconduct in the proceedings.’” The State further contended 

that there was not “any newly discovered evidence mentioned 

in the motion,” and it argued that to the extent Hill referred to 

any sort of evidence, such evidence (1) would be inadmissible 

at trial based on hearsay or relevance, (2) could have been 

discovered at the time of trial, and (3) did not materially affect 

substantial rights of Hill because it would not have changed 

the result of the case. The State further contended that to the 

extent Hill set forth a claim of actual innocence, such a claim 

must be asserted in a postconviction motion rather than in a 

motion for new trial.

About 1 year later, on May 14, 2020, the court entered an 

order in which it dismissed Hill’s motion for new trial. The 

court stated that Hill sought a new trial based on newly discovered evidence pursuant to § 29-2101(5) and that he also 

appeared to seek relief pursuant to a claim of actual innocence. The court’s order replicated the argument in the State’s 

response with minor revisions.

Hill appeals the district court’s order which dismissed his 

motion. Hill, who appeared pro se in the district court, is represented by counsel on appeal.

ASSIGNMENTS OF ERROR

Hill claims, restated and renumbered, that the district court 

erred when it (1) failed to treat his motion as a postconviction motion and to consider his claims, including those of 

actual innocence, as postconviction claims; (2) ordered the 

State to respond to his motion and 1 year later used the State’s 

response, with minimal modifications, as its order overruling 

his motion; and (3) dismissed his motion for new trial based 

on newly discovered evidence without an evidentiary hearing.

STANDARD OF REVIEW

[1] A de novo standard of review applies when an appellate court is reviewing a trial court’s dismissal of a motion 

for a new trial under § 29-2102(2) without conducting an 
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evidentiary hearing. See State v. Cross, 297 Neb. 154, 900 

N.W.2d 1 (2017).

ANALYSIS

In his brief on appeal, Hill asserts that several allegations 

in his motion set forth proper claims for new trial based on 

newly discovered evidence and that the district court erred 

when it dismissed his motion without an evidentiary hearing. 

However, Hill appears to concede that most of the numerous 

allegations set forth in his motion were more appropriate for 

a motion for postconviction relief. He therefore contends that 

the district court should have treated his motion as a motion 

for postconviction relief and considered whether his motion 

set forth postconviction claims that warranted an evidentiary hearing.

Hill further contends that, to the extent the motion was 

properly treated as a motion for new trial based on newly 

discovered evidence pursuant to § 29-2101(5), the district 

court erred when it ordered the State to respond to his motion 

before the court had determined whether an evidentiary hearing 

was warranted. In this regard, Hill argues that the order was 

improper because it was not authorized by the new trial statutes. He also contends that the court “abrogat[ed]” its decisionmaking authority to the State because it used most of the 

language from the State’s response to draft its order dismissing 

his motion.

As discussed below, we resolve Hill’s claims of error as 

follows: First, we determine that rather than treating Hill’s 

motion as a postconviction motion, the district court did 

not err when it treated his motion consistent with the manner by which Hill had denominated the pleading, that is as a 

motion for new trial based on newly discovered evidence. We 

next determine, based on our de novo review, that because 

Hill failed to provide the supporting documents required by 

§ 29-2102(1), the court properly dismissed the motion pursuant to § 29-2102(2). Finally, because our de novo review 
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indicates that the district court did not err when it dismissed 

Hill’s motion, we need not address the contentions Hill makes 

regarding the process used by the district court except to comment on the lengthy amount of time the court had the motion 

under submission.

District Court Did Not Err When It Treated Hill’s 

Motion as Motion for New Trial Rather Than 

Motion for Postconviction Relief.

Hill claims that the district court erred when it failed to treat 

his pleading as a motion for postconviction relief and failed 

to review his allegations, including those of actual innocence, 

as postconviction claims. He argues that the court should have 

looked to the substance of his allegations rather than the form 

of the motion. We conclude that the district court did not err 

when it treated his motion consistent with the manner by which 

Hill denominated the pleading, that is as a motion for new trial 

based on newly discovered evidence.

Hill asserts in his brief that the motion he filed is “basically 

a motion for Post-conviction relief with a few issues of Motion 

for a New Trial, newly discovered evidence thrown in and a 

healthy dose of issues that lean toward [his] actual innocence.” 

Brief for appellant at 32. With regard to his allegations of 

actual innocence, Hill argues that because his motion “is more 

or less in the form of ” a postconviction motion, his “claims of 

actual innocence are more or less brought in a postconviction 

action.” Id. at 38-39.

The motion filed by Hill was titled “Motion for New Trial” 

and referenced the new trial statutes, including § 29-2101(5) 

regarding motions for trial based on newly discovered evidence and § 29-2103(4), which provides the time for filing a 

motion for new trial based on newly discovered evidence. The 

motion did not include citation to the postconviction statutes, 

Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016), and it did not 

include an express assertion that Hill was seeking relief under 

such statutes or that he had filed his motion within the time 

allowed for filing a motion for postconviction relief.
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Despite the fact that Hill explicitly characterized his motion 

as a motion for new trial, he argues on appeal that the district 

court should have ignored his characterization, reviewed the 

motion for its substance, and treated the motion as a motion 

for postconviction relief. Hill relies on State v. Bellamy, 264 

Neb. 784, 652 N.W.2d 86 (2002), to argue that a “post judgment motion must be reviewed based on the relief sought and 

not based on its title.” Brief for appellant at 31. We reject 

Hill’s argument.

In State v. Bellamy, supra, we considered a jurisdictional 

question regarding whether the 30-day period to file a notice 

of appeal was terminated by a motion that the appellant titled 

“Motion for Reconsideration.” See Neb. Rev. Stat. § 25-1912 

(Cum. Supp. 2020). Under the relevant statutes, the running of 

the time for filing a notice of appeal may be terminated by the 

filing of certain motions, including, inter alia, a motion to alter 

or amend a judgment under Neb. Rev. Stat. § 25-1329 (Reissue 

2016). The question in State v. Bellamy, supra, therefore was 

whether the motion titled “Motion for Reconsideration” should 

be treated as a motion to alter or amend a judgment for purposes of determining the time for filing a notice of appeal. 

We reasoned that “[a] determination as to whether a motion, 

however titled, should be deemed a motion to alter or amend 

a judgment depends upon the contents of the motion, not its 

title,” and we held that “in order to qualify for treatment as a 

motion to alter or amend a judgment, a motion must be filed 

no later than 10 days after the entry of judgment, as required 

under § 25-1329, and must seek substantive alteration of the 

judgment.” State v. Bellamy, 264 Neb. at 789, 652 N.W.2d 

at 90.

The holding in State v. Bellamy, supra, should be read as 

specifically related to determining whether a motion may be 

considered a motion to alter or amend a judgment for purposes 

of determining the time to file a notice of appeal. It should 

not be read as a general requirement that a court must review 

every filing to address whether the party filed the correct type 
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of motion or whether the party should have filed a different 

motion to achieve the result the party seeks. Hill simply reads 

State v. Bellamy, supra, too broadly.

We further note that in this case, it was not merely the title 

which indicated that Hill’s filing should be reviewed as a 

motion for new trial. The motion contained various references 

to the new trial statutes and various allegations which indicated 

that Hill was seeking a new trial based on newly discovered 

evidence pursuant to § 29-2101(5). Therefore, the substance 

of the motion supported the title “Motion for New Trial” and 

specified the relevant statutory authority for such a motion. 

Although the motion also included allegations that might have 

been better suited to a motion for postconviction relief, the 

district court was not obligated to read such allegations to contradict Hill’s characterization of the type of motion he wished 

to file or the authority for the relief he sought.

Although we conclude that the district court properly treated 

Hill’s motion as a motion for new trial rather than as a 

motion for postconviction relief, we note the following: First, 

a motion for postconviction relief is required to be verified, 

see § 29-3001(1), and Hill’s motion is not verified and therefore would properly have been dismissed for that reason. 

Second, to the extent Hill contends that his motion contains 

both claims appropriate for a motion for new trial and claims 

appropriate for a motion for postconviction relief, we note 

that § 29-3003 provides that the postconviction remedy “is 

not intended to be concurrent with any other remedy existing in the courts of this state” and that “[a]ny proceeding 

filed under the provisions of sections 29-3001 to 29-3004 

which states facts which if true would constitute grounds 

for relief under another remedy shall be dismissed without 

prejudice.” See, also, State v. Harris, 292 Neb. 186, 191, 871 

N.W.2d 762, 766 (2015) (“postconviction remedy is clearly 

a cumulative remedy that may not be pursued concurrently 

with any other remedy existing under state law, including 

the remedies sought in a motion for new trial”). Thus, Hill’s 
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postconviction claims, if any, were not subject to consideration 

in this action.

We conclude that the district court did not err when it treated 

Hill’s motion as a motion for new trial based on newly discovered evidence rather than treating it as a motion for postconviction relief. We reject this assignment of error, and we turn to 

Hill’s assignments of error regarding the district court’s disposition of the motion for new trial.

Hill Failed to Include Required Supporting 

Documents With Motion for New Trial and 

Therefore Dismissal of Motion Without 

Evidentiary Hearing Was Warranted.

Hill claims that the district court erred when it dismissed 

his motion for new trial without an evidentiary hearing and, 

further, that the court made procedural errors in the manner 

by which it reached this conclusion. Hill specifically asserts 

that the court erred when it ordered the State to respond to his 

motion and later when it used the State’s response as the basis 

for its order dismissing the motion. On appeal from an order 

dismissing a motion for new trial without an evidentiary hearing pursuant to § 29-2102(2), we apply a de novo standard of 

review to such dismissal. See State v. Cross, 297 Neb. 154, 

900 N.W.2d 1 (2017). If our de novo review indicates that 

the motion was properly dismissed, an error in the procedure 

by which the district court reached its decision will not have 

prejudiced Hill and would not require reversal of the dismissal. Therefore, we conduct our de novo review of the dismissal before addressing Hill’s claims related to the procedure 

employed by the district court.

As we discussed above, Hill appears to concede that most of 

the allegations in his motion are more appropriately addressed 

in a motion for postconviction relief than in a motion for 

new trial based on newly discovered evidence. However, Hill 

asserts on appeal that several allegations in his motion set forth 

grounds for new trial based on newly discovered evidence and 

urges us to consider them on that basis.
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[2] Section 29-2101 provides several grounds for a new trial, 

and specifically, subsection (5) provides that a new trial may be 

granted based on “newly discovered evidence material for the 

defendant which he or she could not with reasonable diligence 

have discovered and produced at the trial.” Procedural requirements for motions for new trial authorized by § 29-2101 are set 

forth in §§ 29-2102 and 29-2103. Section 29-2103(2) provides 

that a “motion for a new trial shall state the grounds under 

section 29-2101 which are the basis for the motion and shall 

be supported by evidence as provided in section 29-2102.” 

Section 29-2102(1) in turn provides in part that the “ground set 

forth in subdivision (5) of section 29-2101 shall be supported 

by evidence of the truth of the ground in the form of affidavits, 

depositions, or oral testimony.” Reading these statutes together, 

we have stated that § 29-2102 “sets out what evidence must 

accompany a motion for new trial.” State v. Cross, 297 Neb. at 

158, 900 N.W.2d at 4.

Section 29-2102(2) sets forth the circumstances under which 

a court must grant a hearing on a motion for new trial, but it 

also provides that “[i]f the motion for new trial and supporting 

documents fail to set forth sufficient facts, the court may, on its 

own motion, dismiss the motion without a hearing.” (Emphasis 

supplied.) With regard to a motion for new trial pursuant to 

§ 29-2101(5), the motion and supporting documents must set 

forth sufficient facts to establish that there is “newly discovered evidence material for the defendant which he or she could 

not with reasonable diligence have discovered and produced at 

the trial.”

Therefore, in this case, dismissal without an evidentiary 

hearing would be appropriate if Hill’s motion and supporting documents did not set forth sufficient facts to establish 

that there was newly discovered evidence, that such evidence 

was material to Hill’s defense, and that Hill could not with 

reasonable diligence have discovered and produced the evidence at his trial. Reviewing the allegations in Hill’s motion 

de novo, in particular the allegations that Hill argues on 
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appeal would support a new trial, we determine that Hill did 

not file a motion and supporting documents that set forth sufficient facts.

We have reviewed Hill’s allegations and determine that each 

of Hill’s claims of grounds for new trial set forth in the motion 

fails in at least one of these respects—that is, to the extent Hill 

alleged sufficient facts to show that the claim involved newly 

discovered evidence, he did not adequately allege facts sufficient to show that such evidence was material to his defense 

or to show that he could not with reasonable diligence have 

discovered and produced the evidence at his trial.

However, our de novo review indicates a more basic reason 

that dismissal without an evidentiary hearing was appropriate in this case. As noted above, supporting documents of the 

sort set forth in § 29-2102 must accompany a motion for new 

trial. See State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017). 

Hill filed a 58-page motion with 60 pages of attachments. 

The attachments included, inter alia, letters from counsel and 

police reports. The attachments to the motion did not include 

“evidence of the truth of the ground in the form of affidavits, 

depositions, or oral testimony” as required by § 29-2102(1) 

to support a motion for new trial based on § 29-2101(5). The 

requirement for evidence of the truth of the asserted grounds is 

not trivial; it is designed, inter alia, to demonstrate the strength 

of the claim, which in turn determines entitlement to a hearing. 

Thus, regardless of whether the allegations in the motion itself 

set forth a narrative to establish grounds for a new trial based 

on newly discovered evidence, it is clear that upon filing, Hill 

failed to accompany the motion with the type of evidence 

required by § 29-2102(1) to support the motion. On this basis 

alone, dismissal of Hill’s motion without an evidentiary hearing was appropriate.

We conclude that dismissal of Hill’s motion for new trial 

based on newly discovered evidence was appropriate under 

§ 29-2102(2), because he failed to include required supporting documents in the form of affidavits, depositions, or oral 
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testimony setting forth facts to establish the grounds alleged 

in his motion. We therefore reject Hill’s claim that the district 

court erred when it dismissed his motion without an evidentiary hearing.

Because De Novo Review Indicates That Motion Was 

Properly Dismissed, Any Error in the Procedure 

by Which District Court Decided to Dismiss 

Motion Did Not Prejudice Hill.

Because we conclude, based on our de novo review of the 

motion for new trial, that dismissal of Hill’s motion without an 

evidentiary hearing was proper without regard to the district 

court’s process, any error in the procedure by which the district court reached its decision to dismiss the motion did not 

prejudice Hill. We therefore need not decide Hill’s claims that 

the district court erred when it ordered the State to respond 

or when it based its order of dismissal on the language of the 

State’s response. We do, however, take this opportunity to 

comment concerning aspects of the district court’s disposition 

of Hill’s motion.

Hill claims that the district court erred when it ordered the 

State to respond to his motion before the court had determined 

whether a hearing was required or whether the motion should 

be dismissed without an evidentiary hearing. Hill asserts that 

the statutes require notice to and involvement of the State 

only after the court has determined that an evidentiary hearing is required. The district court overruled Hill’s objection to 

soliciting the State’s views, reasoning that the statutes did not 

prohibit it from requesting a response and that it was doing so 

based on its inherent power.

As an additional basis for objecting to the process, Hill 

maintains that the district court “abrogat[ed]” its decisionmaking authority to the State. In this regard, he observes that the 

court’s order dismissing his motion almost entirely repeated 

the State’s response. He asserts that the court made no findings of fact and that it merely “changed three words” from 

the State’s response, changed the heading, and added a final 
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paragraph for what he asserts was a total of “18 words added 

or changed.” Brief for appellant at 25, 26. Hill correctly notes 

that the court’s order made only minimal changes to the State’s 

response and that the court “took a little over a year” to rule on 

the motion. Id. at 25. In its brief on appeal, the State concedes 

that “[t]here can be no dispute that the district court’s order 

is cribbed almost directly from the [S]tate’s response,” brief 

for appellee at 7, but the State asserts that there is no authority to the effect that a court must make findings of fact or 

conclusions of law with respect to a motion for new trial and 

that, in any event, the court’s decision to dismiss the motion 

was correct.

Given our disposition of the motion, we need not resolve the 

process-related claims of the parties, although we note in passing that it is not inappropriate for a court to track the language 

of a party’s submission.

We further choose to comment on Hill’s argument to the 

extent that he complains it took the court over 1 year to rule 

on the motion with an order that basically repeated the State’s 

response, and we take this opportunity to emphasize that this 

court has adopted case progression standards to govern the 

timely disposition of cases in the district and county courts. 

We note in particular Neb. Ct. R. § 6-101 (rev. 2013), which 

sets time standards for disposition of certain categories of proceedings. Of relevance to this case, § 6-101 provides that for 

“Post Judgment Motions—Modification & Post Convictions,” 

50 percent of such motions should be disposed in 180 days 

and 95 percent should be disposed in 1 year. In the present 

case, Hill filed his motion on January 16, 2019; the court 

ordered the State on February 18 to respond; and the State 

filed its response on May 21. Nearly 11⁄2 years after Hill filed 

his motion and almost 1 year after the State filed its response, 

the court dismissed Hill’s motion on May 14, 2020, without an 

evidentiary hearing in an order which almost word for word 

tracked the response which the court had available to it for 

1 year.
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Hill’s pro se motion was admittedly lengthy and contained 

numerous attachments. However, from our de novo review, it 

was readily apparent that, whatever the merit of the narrative 

in the allegations in the motion, Hill had not accompanied the 

motion with the supporting evidence required by § 29-2102(2). 

We think that the relatively straightforward path for disposition of this motion indicates that, under our case progression 

standards, this motion should have been among the 50 percent 

of motions disposed in 180 days rather than the 5 percent disposed in over 1 year.

CONCLUSION

We conclude that the district court did not err when it considered Hill’s motion as a motion for new trial rather than 

considering it as a motion for postconviction relief. In our de 

novo review, we conclude that Hill’s motion was properly dismissed pursuant to § 29-2102(2). We therefore affirm the district court’s order which dismissed Hill’s motion for new trial 

without an evidentiary hearing.

Affirmed.

Freudenberg, J., not participating.

Stacy, J., concurring.

I agree with the majority’s holding, but write separately to 

comment on the procedure followed by the district court. In 

my opinion, it is neither uncommon nor improper for a district 

court, as part of its preliminary review of a motion for new 

trial under § 29-2102, to ask the State to file a written response 

before deciding whether to grant or deny an evidentiary hearing on the motion.

According to Hill, this procedure amounts to reversible error 

because it is not expressly authorized in the statutes governing motions for new trial. The majority declines to reach the 

procedural issue, reasoning that Hill’s motion was properly 

dismissed without a hearing, regardless of the procedure followed. But since the procedural issue is squarely before us, I 
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see no reason to leave judges and litigants wondering whether, 

in a later case, we might find it to be an abuse of discretion.

Our cases have long recognized that a district court, as 

part of its preliminary review of a postconviction motion, has 

discretion to adopt reasonable procedures to assist the court 

in determining whether an evidentiary hearing is required. 1

Historically, courts have employed a variety of different procedures, and so long as the procedure was not contrary to the 

postconviction statutory scheme, we have not found it to be an 

abuse of discretion. 2 And we have specifically held that it is 

not an abuse of discretion to direct the State to file a written 

response before deciding whether to grant or deny an evidentiary hearing on the motion. 3

Similar to the postconviction statutes, the statutes governing motions for new trial require the trial court to conduct a 

preliminary review of the motion and determine whether to 

grant a hearing on the motion or dismiss it without a hearing. 4 In my opinion, we should acknowledge, as we have in 

the postconviction context, that trial courts have discretion to 

adopt reasonable procedures, not inconsistent with the statutory scheme, to assist in determining whether the motion for 

new trial and supporting documents “set forth facts which, 

1 See, e.g., State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018); State v. 

Glover, 276 Neb. 622, 756 N.W.2d 157 (2008); State v. McLeod, 274 Neb. 

566, 741 N.W.2d 664 (2007); State v. Dean, 264 Neb. 42, 645 N.W.2d 528 

(2002); State v. Flye, 201 Neb. 115, 266 N.W.2d 237 (1978).

2 See, e.g., McLeod, supra note 1 (holding court did not abuse discretion 

in directing State to file written response to postconviction motion before 

ruling on whether to grant evidentiary hearing); Dean, supra note 1 

(holding court did not abuse discretion in holding hearing to receive 

existing record and consider State’s motion to dismiss before ruling on 

whether to grant evidentiary hearing). Compare Glover, supra note 1 

(finding abuse of discretion when court received and considered new 

evidence before ruling on whether to grant evidentiary hearing).

3 See, McLeod, supra note 1; Flye, supra note 1.

4 See Neb. Rev. Stat. § 29-2102(2) (Reissue 2016).
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if true, would materially affect the substantial rights of the 

defendant” 5 and entitle the movant to a hearing.

Here, a few weeks after Hill filed his 118-page pro se 

motion, the district court entered an order directing the State 

to file a written response to the motion within 90 days. The 

order explained that a decision on whether to grant a hearing on Hill’s motion, and whether to appoint counsel for Hill, 

would be deferred pending the State’s response. This procedure is not expressly outlined in the new trial statutes, but it 

is not contrary to the statutory scheme and assists the court in 

conducting the required preliminary review. I see no abuse of 

discretion in the procedure followed by the district court in 

this case.

Nor do I see error in how the court prepared its order of 

dismissal. Hill complains that the court’s order was only four 

pages long and generally tracked with the State’s written 

response, which summarized Hill’s claims rather than addressing each of the more than 100 paragraphs in his motion for new 

trial. But neither the length of a court’s order nor the originality of its language is a reliable measure of the quality of judicial decisionmaking.

The majority correctly observes that it is not inappropriate 

for a court, when preparing an order, to track the language of 

a party’s submission. But the majority repeats Hill’s complaint 

in this regard often enough that readers might suspect there is 

something to it. There is not. Judges need not reinvent the legal 

wheel when issuing a decision, and it is neither remarkable nor 

improper for a court to issue an order that repeats a party’s 

correct analysis of the law or recitation of the facts. I firmly 

reject Hill’s contention that the language of the order issued in 

this case casts doubt on the court’s impartiality or suggests the 

judge did not conduct an independent and thorough review of 

Hill’s lengthy motion and supporting documents before issuing 

its decision.

5 Id.