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Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. KOCH

Cite as 304 Neb. 133

State of Nebraska, appellee and cross-appellant,

Edward D. Koch, appellant and cross-ap

___ N.W.2d ___

Filed September 27, 2019. No. S-18-971.

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. Appeal and Error. When reviewing a question of law, an appellate court 

resolves the question independently of the lower court’s conclusion.

3. Postconviction: Final Orders: Appeal and Error. Within a postconviction proceeding, an order granting an evidentiary hearing on some 

issues and denying a hearing on others is a final, appealable order as 

to the claims denied without a hearing. It is appealable because an 

order overruling a motion for postconviction relief as to a claim is a 

“final judgment” as to such claim under Neb. Rev. Stat. § 29-3002 

(Reissue 2016).

4. Postconviction: Pleadings: Time. Neb. Rev. Stat. § 29-3001(4) (Reissue 

2016) of the Nebraska Postconviction Act contains a 1-year time limit 

for filing a verified motion for postconviction relief, which runs from 

one of four triggering events or August 27, 2011, whichever is later.

5. Postconviction: Limitations of Actions: Words and Phrases: Appeal 

and Error. The issuance of a mandate by a Nebraska appellate court is 

a definitive determination of the “conclusion of a direct appeal,” and the 

“date the judgment of conviction became final,” for purposes of Neb. 

Rev. Stat. § 29-3001(4)(a) (Reissue 2016).

Appeal from the District Court for Cass County: Michael 

Smith, Judge. Affirmed

Cameron Kroeger, of Berry Law Firm, for appellant.

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

and Maureen Larsen, Senior Certified Law Student, for appellee.

Nebraska Supreme Court Online Library

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

12/20/2019 01:08 AM CST
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Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. KOCH

Cite as 304 Neb. 133

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

Judge.

Stacy, 

Edward D. Koch appeals from an order of the Cass County 

District Court dismissing his motion for postconviction relief 

after an evidentiary hearing. The State cross-appeals, arguing 

the district court erred in granting an evidentiary hearing on a 

postconviction claim that was time barred. We affirm the dismissal of the postconviction motion.

I. BACKGROUND

In 2014, Koch was charged with two counts of manslaughter 

in violation of Neb. Rev. Stat. § 28-305 (Reissue 2008). He 

eventually pled no contest to both counts as charged, and he 

was sentenced to consecutive terms of 15 to 20 years in prison 

for each conviction.

Koch filed a direct appeal, represented by the same attorney. 

The Nebraska Court of Appeals affirmed Koch’s conviction 

and sentence in a memorandum opinion filed May 24, 2016.1

The Court of Appeals issued its mandate to the Cass County 

District Court on June 28.

The record shows the mandate was filed by the clerk of the 

district court on July 21, 2016, and a few days later, on July 

25, the district court entered judgment in accordance with the 

mandate. An amended judgment on the mandate was entered 

July 28 to correct a typographical error.

On July 19, 2017, Koch filed a verified motion for postconviction relief. The motion, which was prepared and filed 

by newly retained counsel, alleged that Koch’s trial counsel 

had provided ineffective assistance in four respects. The State 

moved to deny postconviction relief without an evidentiary 

hearing, arguing, among other things, the motion was time 

barred. In response, Koch argued that his motion was timely 

1 State v. Koch, No. A-15-959, 2016 WL 3083135 (Neb. App. May 24, 

2016) (selected for posting to court website).
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Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. KOCH

Cite as 304 Neb. 133

under Neb. Rev. Stat. § 29-3001(4)(a) (Reissue 2016), because 

it was filed within 1 year of the date on which the Court of 

Appeals’ mandate had been filed in the district court.

In an order entered November 2, 2017, the district court 

agreed with Koch on the issue of timeliness. It noted that under 

§ 29-3001(4)(a), a postconviction motion must be filed within 

1 year of “‘the conclusion of a direct appeal.’” The district 

court reasoned “the issuance of an appellate opinion is not 

necessarily the final step in the appellate process, and that issuance and receipt of the mandate is also a part of that process.” 

Applying this reasoning, the district court found Koch’s direct 

appeal concluded on July 21, 2016, the date on which the 

Court of Appeals’ mandate was filed in the district court, and 

thus concluded Koch’s postconviction motion was timely filed 

within 1 year of that date.

The district court then found Koch was entitled to an 

evidentiary hearing on one of his four claims of ineffective 

assistance of counsel. It found the other three claims were 

either procedurally barred or insufficiently pled, and dismissed 

them. Neither Koch nor the State appealed the November 2, 

2017, order.

An evidentiary hearing was held on the remaining claim, 

and the district court found Koch had failed to show his trial 

counsel performed deficiently. In an order entered September 

18, 2018, the court therefore dismissed Koch’s motion for postconviction relief.

Koch filed a timely appeal, and the State cross-appealed. We 

moved the appeal to our docket on our own motion.2

II. ASSIGNMENTS OF ERROR

Koch assigns, restated, that the district court erred in (1) 

finding he was not entitled to an evidentiary hearing on three 

of his four postconviction claims and (2) denying his remaining postconviction claim after an evidentiary hearing.

2 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. KOCH

Cite as 304 Neb. 133

In its cross-appeal, the State assigns, restated, that the district 

court erred in granting an evidentiary hearing because Koch’s 

postconviction motion was time barred under § 29-3001(4)(a).

III. STANDARD OF REVIEW

[1,2] 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.3

 When reviewing a question of law, an appellate 

court resolves the question independently of the lower court’s 

conclusion.4

IV. ANALYSIS

On cross-appeal, the State argues the district court erred in 

granting an evidentiary hearing on one of Koch’s ineffective 

assistance claims, rather than dismissing Koch’s postconviction motion as untimely. Because we find this issue dispositive, we address it first. Before doing so, however, we pause 

to address Koch’s argument that the State’s cross-appeal is not 

properly before us.

1. State’s Cross-Appe

Properly Before

Koch argues the State’s cross-appeal should not be considered for two reasons. First, he argues the timeliness ruling 

being challenged on cross-appeal was part of the district court’s 

order of November 2, 2017, and the State did not timely appeal 

from that order. Second, Koch argues the State did not timely 

file its appellate brief raising the cross-appeal. We address each 

argument in turn and reject them both.

(a) Timeliness of State’s Cross-Appeal

[3] It is well established that, within a postconviction proceeding, an order granting an evidentiary hearing on some 

issues and denying a hearing on others is a final, appealable 

3 State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018).

4 State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018), cert. denied ___ 

U.S. ___, 139 S. Ct. 2716, ___ L. Ed. 2d ___ (2019).
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Nebraska Supreme Court Advance S

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STATE v. KOCH

Cite as 304 Neb. 133

order as to the claims denied without a hearing.5 Such an order 

is appealable because as to the denied claim, it is a “final judgment” under Neb. Rev. Stat. § 29-3002 (Reissue 2016).6

As noted, the district court’s order of November 2, 2017, 

dismissed three of the four postconviction claims raised by 

Koch. Neither party appealed, and Koch is thus correct that 

the November 2 order has become final as it regards the three 

dismissed claims. But the November 2 order was not a final, 

appealable order as to the remaining claim on which an evidentiary hearing was ordered. As to that claim, no final order 

was entered until September 18, 2018, when the district court 

denied postconviction relief following an evidentiary hearing. 

Koch timely appealed from the September 18 order, and in its 

appellate brief, the State presented a cross-appeal7 limited to 

the timeliness of the claim on which the evidentiary hearing 

was held. There is no merit to Koch’s argument that the State’s 

cross-appeal is not properly before us because no appeal was 

taken from the November 2 order.

(b) Timeliness of State’s Brief

Next, Koch urges us not to consider the State’s cross-appeal 

because the State “failed to timely file its brief” on appeal.8

We need not discuss the circumstances under which an appellate court might accept and consider a party’s untimely brief, 

because here, the State’s brief and cross-appeal were not 

untimely.

The State requested, and was granted, an extension of time 

to file its appellate brief, and it thereafter filed its brief, which 

asserted a cross-appeal,9 within the time permitted by the court. 

The State’s cross-appeal is properly before this court, and 

Koch’s arguments to the contrary have no merit.

5 Id.

6 See id.

7 See Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014).

8 Reply brief for appellant at 7.

9 See Neb. Ct. R. App. P. § 2-101(E) (rev. 2015).
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Nebraska Supreme Court Advance S

304 Nebraska Report

STATE v. KOCH

Cite as 304 Neb. 133

2. Koch’s Postcon

Motion Unti

In its cross-appeal, the State argues it was error for the 

district court to grant an evidentiary hearing on Koch’s claim 

because his postconviction motion was time barred under 

§ 29-3001(4)(a). We agree.

[4] Section 29-3001(4) of the Nebraska Postconviction Act10

contains a 1-year time limit for filing a verified motion for 

postconviction relief, which runs from one of four triggering 

events or August 27, 2011, whichever is later.11 Here, the applicable triggering event is set out in § 29-3001(4)(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.” As such, the question of timeliness in this case turns 

on whether Koch filed his postconviction motion within 1 year 

of the date his judgment of conviction became final by the conclusion of his direct appeal.

Koch argues his direct appeal was not concluded until the 

district court entered judgment on the mandate issued by the 

Court of Appeals. The State argues Koch’s direct appeal was 

concluded once the Court of Appeals issued its mandate. The 

State is correct.

[5] In State v. Huggins,

12 we held “the issuance of a mandate 

by a Nebraska appellate court is a definitive determination of 

the ‘conclusion of a direct appeal,’ and the ‘date the judgment 

of conviction became final,’ for purposes of § 29-3001(4)(a).” 

State v. Huggins observed that when a criminal conviction 

is appealed, this court has often indicated the finality of the 

judgment is tied to the issuance of a final mandate,13 and that 

10 Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016 & Cum. Supp. 2018).

11 See State v. Edwards, 301 Neb. 579, 919 N.W.2d 530 (2018).

12 State v. Huggins, 291 Neb. 443, 450, 866 N.W.2d 80, 85 (2015).

13 Huggins, supra note 12, citing State v. Davis, 277 Neb. 161, 762 N.W.2d 

287 (2009); State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003); State 

v. White, 256 Neb. 536, 590 N.W.2d 863 (1999); and State v. Urbano, 256 

Neb. 194, 589 N.W.2d 144 (1999).
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STATE v. KOCH

Cite as 304 Neb. 133

“[u]nder Nebraska law and procedure, the issuance of a mandate by an appellate court is a clear signal that a direct appeal 

has been concluded.”14 Since our decision in Huggins, both this 

court and the Court of Appeals have applied the rule that for 

purposes of § 29-3001(4)(a), the conclusion of a direct appeal 

occurs when a Nebraska appellate court issues the mandate in 

the direct appeal.15

Here, it is undisputed that the Court of Appeals issued its 

mandate on June 28, 2016, and under our case law, that is 

the date on which Koch’s judgment of conviction became 

final by the conclusion of his direct appeal for purposes of 

§ 29-3001(4)(a). Koch filed his postconviction motion on 

July 19, 2017, more than 1 year after the date the mandate 

was issued by the appellate court. As such, his postconviction 

motion was time barred under § 29-3001(4)(a).

V. CONCLUSION

We do not reach Koch’s assignments of error on appeal 

because we find merit in the State’s cross-appeal. We conclude 

Koch’s postconviction motion was filed outside the 1-year 

limitations period under § 29-3001(4)(a) and was time barred. 

We therefore affirm the district court’s order of September 18, 

2018, dismissing Koch’s postconviction motion, albeit on different grounds.

Affirmed

Heavican, C.J., and Funke and Freudenberg, JJ

participating.

14 Huggins, supra note 12, 291 Neb. at 449, 866 N.W.2d at 85.

15 See, State v. Shannon, 293 Neb. 303, 876 N.W.2d 907 (2016); State v. 

Liner, 26 Neb. App. 303, 917 N.W.2d 194 (2018).