State v. Lotter

• Decision Date: 28 September 2018
• Docket Number: S-17-1129.,S-17-1127,S-17-338,S-17-1126,Nos. S-17-325,S-17-339,s. S-17-325
• Citation: 917 N.W.2d 850,301 Neb. 125
• Parties: STATE of Nebraska, appellee, v. John L. LOTTER, appellant.
• Court: Nebraska Supreme Court

301 Neb. 125

917 N.W.2d 850

STATE of Nebraska, appellee,

v.John L. LOTTER, appellant.

Nos. S-17-325

S-17-338

S-17-339

S-17-1126

S-17-1127

S-17-1129.

Supreme Court of Nebraska.

Filed September 28, 2018.

Timothy S. Noerrlinger, of Naylor & Rappl, and Rebecca E. Woodman, Topeka, KS, for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith, Lincoln, for appellee.

Brian William Stull, of American Civil Liberties Union Foundation, and Amy A. Miller, of American Civil Liberties Union of Nebraska Foundation, for amici curiae American Civil Liberties Union Capital Punishment Project and American Civil Liberties Union of Nebraska Foundation.

Heavican, C.J., Cassel, Stacy, Funke, and Papik, JJ., and Bishop and Welch, Judges.

Cassel, J.

I. INTRODUCTION

In identical, successive postconviction motions filed in three cases, John L. Lotter sought relief based on a 2016 U.S. Supreme Court decision¹ and on a death qualification issue. In separate orders filed months apart, the district court denied relief on each issue. Because Lotter did not timely appeal the denials of the death qualification issue, we lack jurisdiction over those appeals. We affirm the denials of the other claim as time barred, because the decision he relies upon is not a "newly recognized right [that] has been made applicable retroactively to cases on postconviction collateral review."²

II. BACKGROUND

1. CONVICTIONS AND SENTENCING

Lotter’s crimes are well known, and the underlying facts are set forth in our decision on Lotter’s direct appeal.³ In three separate cases against Lotter which were consolidated for trial, a jury convicted him of several crimes, including three counts of first degree murder. In accordance with the laws in effect at the time of his trial, a three-judge panel convened in February 1996 to determine whether Lotter should be sentenced to death. The panel found the applicability of three aggravating circumstances beyond a reasonable doubt and imposed the death penalty.

A criminal conviction is final for purposes of collateral review when the judgment of conviction is rendered, the availability of appeal is exhausted, and the time for petition for certiorari has lapsed.⁴ Lotter’s convictions became final in 1999.⁵

2. KEY U.S. SUPREME COURT SIXTH AMENDMENT CASES

(a) Apprendi v. New Jersey

In 2000, the U.S. Supreme Court decided Apprendi v. New Jersey ,⁶ a landmark decision with respect to Sixth Amendment jurisprudence. In that case, a hate crime statute authorized an increase in the prescribed statutory maximum sentence based on a judge’s finding by a preponderance of the evidence that the defendant acted with purpose to intimidate the victim based on the particular circumstances of the victim. The trial judge concluded that the defendant had been motivated by racial bias, and in accordance with the statute, the judge increased the defendant’s sentence.

The Apprendi Court addressed whether a judge, rather than a jury, could find facts that increased the defendant’s maximum sentence. The Court determined that the statute violated the Due Process Clause of the 14th Amendment and the 6th Amendment right to trial by jury. It declared:

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."⁷

(b) Ring v. Arizona

Two years after Apprendi , the U.S. Supreme Court decided Ring v. Arizona .⁸ Ring applied the Apprendi rule to capital sentencing schemes and determined that capital defendants are entitled to a jury determination of any fact that would increase the possible maximum punishment. The Court held, "Because Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ ... the Sixth Amendment requires that they be found by a jury."⁹ Ringexplicitly overruled one of its prior cases "to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty."¹⁰

(c) Hurst v. Florida

On January 12, 2016, the U.S. Supreme Court filed its decision in Hurst v. Florida¹¹ In that case, the Court considered the constitutionality of Florida’s capital sentencing scheme in light of Ring. Under Florida law, a jury renders an " ‘advisory sentence’ " of life or death without specifying a factual basis for its recommendation and then the court, notwithstanding the jury’s recommendation, weighs the aggravating and mitigating circumstances and enters a sentence of life imprisonment or death.¹² Thus, the trial court alone makes the findings necessary for imposition of a death sentence—that " ‘sufficient aggravating circumstances exist’ " and that " ‘there are insufficient mitigating circumstances to outweigh the aggravating circumstances.’ "¹³ In holding the sentencing scheme unconstitutional, the Court declared that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death."¹⁴ The Hurst Court stated that "Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional."¹⁵

3. NEBRASKA’S CAPITAL SENTENCING SCHEME

At the time of Lotter’s convictions and sentences, Nebraska law provided that after a defendant was found guilty of first degree murder, a trial judge or a three-judge panel determined whether statutory aggravating circumstances existed.¹⁶ If such circumstances existed, the defendant faced a maximum penalty of death.¹⁷ If aggravating circumstances did not exist, the defendant faced a maximum penalty of life imprisonment. Ring invalidated this procedure.

In response to Ring , the Nebraska Legislature enacted L.B. 1,¹⁸ which amended Nebraska’s capital sentencing statutes. The new law required that a jury determine the existence of aggravating circumstances, unless a jury is waived by the defendant.¹⁹ It specifically stated that each aggravating circumstance needed to be proved by the State beyond a reasonable doubt.²⁰ If the jury rendered a verdict finding the existence of one or more aggravating circumstances, a panel of three judges would determine the sentence.²¹ The panel of judges was to consider whether the aggravating circumstances as determined to exist justified imposition of a death sentence, whether mitigating circumstances existed which approached or exceeded the weight given to the aggravating circumstances, or whether the sentence of death was excessive or disproportionate to the penalty imposed in similar cases.²² Nothing in the legislative response dictated that it would apply to sentences which had already become final upon completion of direct review.²³

4. FOURTH POSTCONVICTION MOTION PROCEEDINGS

Exactly 1 year after the Hurst decision, Lotter filed in each case a fourth motion for postconviction relief. He set forth two grounds for relief. Lotter first alleged that Nebraska’s capital sentencing scheme was unconstitutional in light of Hurst (claim 1). Second, Lotter alleged that the death qualification of the jury violated his rights under the 8th and 14th Amendments (claim 2).

The district court promptly conducted a "preliminary review" to determine whether an evidentiary hearing should be granted. On January 17, 2017, the court entered an order denying claim 2 as being procedurally barred. The court neither granted nor denied an evidentiary hearing on claim 1. The pertinent portion of the court’s order is as follows:

Lotter’s claim for post-conviction relief on Claim 1 is presently set for briefing from the State of Nebraska before this court determines whether a hearing is required. ... Upon submission of the briefs, this court will determine if any further hearings will be necessary.

Lotter’s claim for post-conviction relief on Claim 2 [ ] is denied. Lotter’s request to reverse his convictions are [sic] denied.

On Friday, January 27, 2017, the district court held a hearing concerning a mandate in a previous postconviction proceeding. During the hearing, Lotter’s counsel asked how to proceed with asking the court to reconsider its denial of claim 2. Counsel expressed concern that "if we file a motion for reconsideration within 10 days, there’s a potential that that can be construed as a final judgment in the case and so the issues would be bifurcated and we would have to litigate this piecemeal." The court suggested that the "best path" may be to file a motion for reconsideration which "should hold it in abeyance."

On Monday, January 30, 2017, Lotter filed a "Motion for Reconsideration and to Hold in Abeyance." In the motion, Lotter asked the court to reconsider its ruling on claim 2 and to hold the motion in abeyance for hearing and decision together with the hearing and decision on claim 1. He asserted that before claim 2 is disposed of, the court should allow briefing on whether cause existed to excuse any procedural default. Lotter further stated that "[i]n an abundance of caution, this motion is being filed in accordance with the provisions for filing a motion to alter or amend judgment under Neb. Rev. Stat. § 25-1329 [ (Reissue 2016) ]."

Before the district court ruled on Lotter’s motion for reconsideration, Lotter filed a motion for leave to amend his postconviction motion. He sought to add an additional claim, which would allege that his direct appeal counsel was constitutionally ineffective for failing to challenge the death qualification of his jury and that his initial postconviction counsel had an actual conflict of interest which precluded counsel from...