- 753 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v . TORRES Cite as 304 Neb. 753

State of Nebraska, appellee, v. Marco E. Torres, Jr., appellant. ___ N.W.2d ___ Filed January 3, 2020. No. S-19-276.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. 2. Postconviction: Appeal and Error. Appeals of postconviction pro

ceedings will be reviewed independently if they involve a question of law. Appeal from the District Court for Hall County: James D. Livingston , Judge, Retired. Affirmed. Marco E. Torres, Jr., pro se. Douglas J. Peterson, Attorney General, and James D. Smith, Solicitor General, for appellee.
Heavican , C.J., Miller

- Lerman , Cassel , Stacy, Funke , and Papik , JJ.
Miller

- Lerman , J. NATURE OF CASE Marco E. Torres, Jr., appeals from the order of the district court for Hall County which denied his third motion for post

conviction relief without an evidentiary hearing. Torres asserts that the Legislature’s statute providing for the repeal of the Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 02/28/2020 08:06 AM CST- 754 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v . TORRES Cite as 304 Neb. 753 death penalty, 2015 Neb. Laws, L.B. 268, went into effect, thereby changing his death sentence to life imprisonment. Torres further asserts that the rejection of L.B. 268 by public referendum reimposed a death sentence, that the referendum was constitutionally impermissible in a variety of ways, and that he was harmed thereby. We find no merit to Torres’ claims and affirm the order of the district court.
STATEMENT OF FACTS In 2009, a jury found Torres guilty of two counts of first degree murder and other felony offenses. He was sentenced to death for each of the murders and sentenced to prison terms for the other felonies. We affirmed his convictions and sentences on direct appeal. State v. Torres , 283 Neb. 142, 812 N.W.2d 213 (2012). Torres first moved for postconviction relief in 2013, raising claims of prosecutorial misconduct and ineffective assistance of counsel. The district court denied postconviction relief after conducting an evidentiary hearing. We affirmed in State v. Torres , 295 Neb. 830, 894 N.W.2d 191 (2017). In his second postconviction proceeding, filed on June 14, 2017, Torres claimed that his death sentences were unconsti

tutional under Hurst v. Florida , ___ U.S. ___, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016), and Johnson v. U.S. , ___ U.S. ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015). The district court found that Torres’ motion for postconviction relief was time barred under the 1-year limitations period of Neb. Rev. Stat. § 29-3001(4) (Reissue 2016) and denied relief without con

ducting an evidentiary hearing. We affirmed in State v. Torres , 300 Neb. 694, 915 N.W.2d 596 (2018). Torres filed a third postconviction proceeding on December 4, 2017. It is the denial of relief from the third postconviction action which gives rise to this appeal. In his third postconvic

tion motion, Torres generally alleged that he was entitled to relief based on the proposition that L.B. 268 changed his sen

tence from the death penalty to life imprisonment and the 2016- 755 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v . TORRES Cite as 304 Neb. 753 public referendum which “reject[ed]” L.B. 268 changed it back to a death sentence. Neb. Const. art. III, § 3. Torres specifically alleged that the referendum reimposed the death penalty on him and that such imposition was cruel and unusual punishment, violated due process, constituted an unconstitutional bill of attainder that targeted the individuals on death row, and violated separation of powers. The district court rejected Torres’ claims based on the insufficiency of allegations in the motion and denied the third postconviction motion without an evidentiary hearing. Torres appeals.
ASSIGNMENTS OF ERROR Torres contends, summarized and restated, that (1) the dis

trict court’s analysis regarding the powers of the Legislature to enact sentencing laws was flawed and (2) the referendum process and result amounted to imposition of cruel and unusual punishment, violated due process, constituted an impermissible bill of attainder, and violated separation of powers. Because our analysis differs from that of the district court and eclipses Torres’ arguments regarding the powers of the Legislature to enact sentencing statutes, it is not necessary to consider Torres’ first assignment of error.
STANDARDS OF REVIEW [1,2] In appeals from postconviction proceedings, an appel

late court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirma

tively show that the defendant is entitled to no relief. State v. Allen , 301 Neb. 560, 919 N.W.2d 500 (2018). Appeals of post

conviction proceedings will be reviewed independently if they involve a question of law. See State v. Thieszen , 295 Neb. 293, 887 N.W.2d 871 (2016).
ANALYSIS As an initial matter, we recognize that the State has suggested that Torres’ current postconviction motion is procedurally- 756 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v . TORRES Cite as 304 Neb. 753 barred. Although there may be merit to this argument, as we recognized in Sandoval v. Ricketts , 302 Neb. 138, 922 N.W.2d 222 (2019), a postconviction action may be a suitable pro

cedure to examine the claims that are central to this death penalty case, and we therefore proceed to consideration of the merits. We have reviewed Torres’ motion for postconviction relief, and although our reasoning differs from that of the district court, we agree with the determination that Torres has failed to allege sufficient facts to demonstrate a violation of his consti

tutional rights. See State v. Allen, supra . The allegations assert that certain constitutional guarantees were violated; however, we have recently considered and rejected at length the essential substance of each of Torres’ allegations. See, State v. Mata, ante p. 326, 934 N.W.2d 475 (2019); State v. Jenkins , 303 Neb. 676, 931 N.W.2d 851 (2019). The principal but flawed premise for Torres’ constitutional claims is that L.B. 268 went into effect, thereby changing his death sentence to life imprisonment, and that the successful referendum reimposed the death penalty. In State v. Jenkins , we concluded that “the filing of petitions on August 26, 2015— prior to the effective date of L.B. 268—suspended [L.B. 268’s] operation until Nebraskans effectively rejected the bill by vot

ing to repeal it. . . . L.B. 268 never went into effect . . . .” 303 Neb. at 710-11, 931 N.W.2d at 879. In State v. Mata , we described the process as follows: In May 2015, the Nebraska Legislature passed 2015 Neb. Laws, L.B. 268, which abolished the death penalty in Nebraska, and then overrode the Governor’s veto of the bill. Within L.B. 268, the Legislature provided that “in any criminal proceeding in which the death penalty has been imposed but not carried out prior to the effec

tive date of this act, such penalty shall be changed to life imprisonment.” The Legislature adjourned sine die on May 29. Because L.B. 268 did not contain an emergency clause, it was to take effect on August 30.- 757 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v . TORRES Cite as 304 Neb. 753 Following the passage of L.B. 268, opponents of the bill sponsored a referendum petition to repeal it. On August 26, 2015, the opponents filed with the Nebraska Secretary of State signatures of approximately 166,000 Nebraskans in support of the referendum. On October 16, the Secretary of State certified the validity of suf

ficient signatures. Enough signatures were verified to suspend the operation of L.B. 268 until the referendum was approved or rejected by the electors at the upcoming election. During the November 2016 election, the refer

endum passed and L.B. 268 was repealed, that is, in the language of the Constitution, the act of the Legislature was “‘reject[ed].’” Ante at 331-32, 934 N.W.2d at 480. See, also, Neb. Const. art. III, § 3; State v. Jenkins, supra

. As we addressed in our analysis of comparable claims in State v. Mata , the essential substance of claims based on cruel and unusual punishment, due process, and bill of attainder which assert that L.B. 268 changed a death sentence to life imprisonment fails “because L.B. 268 was suspended and no such changes in his sentence occurred.” Ante at 340, 934 N.W.2d at 485. Torres contends that the anxiety created by the potential modification of a sentence is cruel and unusual punishment. However, we have concluded that such potential does not rise to an Eighth Amendment violation. See State v. Mata, supra

. Accordingly, we reject this claim. Torres also contends that his due process rights were vio

lated when the successful referendum “reinstat[ed] the capital sentences en masse .” Brief for appellant at 26. He claims he was denied the benefits of individualized sentencing. However, as we have explained, no resentencing occurred, and therefore this argument fails. In a similar manner, Torres’ assertion that the rejection of L.B. 268 by referendum was essentially a bill of attain

der which was directed at him also fails. Torres specifically- 758 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports STATE v . TORRES Cite as 304 Neb. 753 claims that the “repeal of LB 268 by referendum sentenced . . . Torres to death.” Brief for appellant at 31. As we have explained, Torres’ death sentence was not suspended and the imposition of the death penalty was not a direct consequence of the referendum. Finally, to the extent that Torres’ claim is based on a viola

tion of separation of powers, we addressed and rejected this claim in State v. Mata, ante p. 326, 343, 934 N.W.2d 475, 487 (2019), in which we concluded that the claim fails “because the result of the referendum is not invalidated even if such actions [of the Governor and other executive officers in the referendum process] were constitutionally improper.” The remedy is not invalidation of the referendum, but instead removal from “the violating position.” Id . at 344, 934 N.W.2d at 487.
CONCLUSION We have reviewed de novo the district court’s determination that Torres failed to allege sufficient facts that demonstrate a violation of his constitutional rights and find no error in this determination. Accordingly, we affirm the district court’s order which denied postconviction relief. Affirmed. Freudenberg , J., not participating.