State v. Lotter, S-20-363

CourtSupreme Court of Nebraska
Citation311 Neb. 878
Docket NumberS-20-363,S-20-366,S-20-367
PartiesState of Nebraska, appellee, v. John L. Lotter, appellant.
Decision Date01 July 2022

311 Neb. 878

State of Nebraska, appellee,

John L. Lotter, appellant.

Nos. S-20-363, S-20-366, S-20-367

Supreme Court of Nebraska

July 1, 2022

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: Judgments: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which an appellate court reviews independently of the lower court's ruling.

3. 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.

4. Postconviction: Constitutional Law. Postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable.

5. Postconviction: Constitutional Law: Proof. A postconviction motion must allege facts which, if proved, constitute a denial or violation of a defendant's rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.

6. ___: ___: ___. Under the Nebraska Postconviction Act, an evidentiary hearing is not required when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the movant's constitutional rights rendering the judgment void or voidable; (2) the motion alleges only conclusions of fact or law without supporting facts; or (3) the records and files affirmatively show that the defendant is entitled to no relief.

7. Postconviction. The need for finality in the criminal process requires that a defendant bring all claims for relief at the first opportunity.


[311 Neb. 879] 8. Postconviction: Appeal and Error. It is fundamental that a motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal.

9. ___: ____. When an issue could have been raised on direct appeal, it is procedurally barred from postconviction relief, no matter how the issues may be phrased or rephrased.

10. Postconviction: Pleadings. The effect of Neb. Rev. Stat. § 29-3001(3) (Reissue 2016) is to require that all available grounds for postconviction relief must be stated in the initial postconviction motion and, once that motion has been judicially determined, any subsequent postconviction motion regarding the same conviction and sentence may be dismissed by the district court unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time of filing the prior motion.

11. ___: ____. A defendant is entitled to bring a successive postconviction motion only when the face of the motion affirmatively shows that the issues raised therein could not have been raised in prior motions.

12. Postconviction: Limitations of Actions: Sentences: Death Penalty. The 1-year limitation period set out in Neb. Rev. Stat. § 29-3001(4) (Reissue 2016) governs all postconviction motions, including successive motions and those challenging a death sentence.

13. Postconviction. For purposes of Neb. Rev. Stat. § 29-3001 (4)(b) (Reissue 2016), the factual predicate for a postconviction claim is properly understood as the important objective facts that support the claim.

14. Postconviction: Time. The 1-year period in Neb. Rev. Stat. § 29-3001(4)(b) (Reissue 2016) begins to run when the objective facts underlying the claim could reasonably be discovered, and that date is distinct from discovering that those facts are actionable.

15. ____: ____. The inquiry for purposes of Neb. Rev. Stat. § 29-3001 (4)(b) (Reissue 2016) concerns when the important objective facts could reasonably have been discovered, not when the claimant should have discovered the legal significance of those facts.

16. Mental Competency. The factual predicate for an intellectual disability claim under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed. 335 (2002), does not depend on either a formal clinical diagnosis or a particular intelligence quotient score.

17. ____ . The important objective facts supporting a claim of intellectual disability under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed. 335 (2002), include facts relating to subaverage intellectual functioning, deficits in adaptive functioning, and the onset of these deficits during the developmental period.


[311 Neb. 880] 18. Mental Competency: Presumptions. The plain language of Neb. Rev. Stat. § 28-105.01(3) (Cum. Supp. 2020) does not establish a strict cutoff score of 70 on an intelligence quotient test; rather, it creates an evidentiary presumption in favor of finding intellectual disability when the defendant has an intelligence quotient score of 70 or below on a reliably administered test.

19. Mental Competency: Evidence: Appeal and Error. Nebraska appellate courts have not construed Neb. Rev. Stat. § 28-105.01(3) (Cum. Supp. 2020) in a way that would prohibit those with a score above 70 on an intelligence quotient test from presenting other evidence that would support a finding of intellectual disability.

20. Constitutional Law: Sentences. Generally, state courts considering a matter on collateral review must give retroactive effect to new substantive rules of federal constitutional law. Substantive rules of federal constitutional law include rules forbidding criminal punishment of certain primary conduct, as well as rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.

21. Postconviction: Constitutional Law: Time. Neither Hall v. Florida, 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed. 1007 (2014), nor Moore v. Texas, ____U.S.____, 137 S.Ct. 1039, 197 L.Ed.2d 416 (2017), announced a new substantive rule of constitutional law that must be applied retroactively to cases on postconviction collateral review.

22. Postconviction: Death Penalty: Time. The holding in Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), does not require a state court to excuse procedural defaults in postconviction cases or prevent a state court from enforcing its procedural or time bar rules when presented with a challenge to imposition of the death penalty on postconviction collateral review.

23. Postconviction: Time: Appeal and Error. Generally, when the timeliness of a postconviction motion is at issue, the defendant must raise all applicable arguments in the district court to preserve them for appellate review.

24. Statutes: Legislature: Intent. When construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

25. Statutes: Appeal and Error. The rules of statutory interpretation require an appellate court to give effect to the entire language of a statute, and to reconcile different provisions of the statutes so they are consistent, harmonious, and sensible.

26. Death Penalty: Sentences: Mental Competency: Statutes: Legislature: Pleadings. Neb. Rev. Stat. § 28-105.01(2) (Cum. Supp. 2020) establishes a statutory right prohibiting imposition of the death


[311 Neb. 881] penalty on any person with an intellectual disability. To enforce that statutory right, the Legislature enacted a specific statutory procedure to allow a defendant facing the death penalty to file a verified motion and request a hearing to determine intellectual disability, before any sentencing determination is made.

27. Statutes: Legislature: Intent: Words and Phrases. As a general principle of statutory construction, use of the phrase "notwithstanding any other provision of law" in a statute signals legislative intent to override other provisions of law that conflict with the statute.

28. Postconviction: Limitations of Actions: Words and Phrases. The phrase "notwithstanding any other provision of law" in Neb. Rev. Stat. § 28-105.01 (Cum. Supp. 2020) neither impacts nor overrides the procedural and time limitations applicable to postconviction motions under the Nebraska Postconviction Act.

29. Death Penalty: Legislature: Initiative and Referendum. The Legislature's repeal of the death penalty in 2015 Neb. Laws, L.B. 268, never went into effect, because upon the filing of a referendum petition appearing to have a sufficient number of signatures, operation of the legislative act was suspended so long as the verification and certification process ultimately determines that the petition had the required number of valid signatures.

30. Death Penalty: Sentences: Initiative and Referendum. Because 2015 Neb. Laws, L.B. 268, was suspended and never went into effect, any death sentences in effect at the time were unchanged.

Appeal from the District Court for Richardson County: Vicky L. Johnson, Judge. Affirmed.

Timothy S. Noerrlinger, of Naylor & Rappl, and Rebecca E. Woodman, pro hac vice, for appellant.

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

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

Stacy, J.

In this successive motion for postconviction relief, John L. Lotter presents two claims challenging the constitutionality


[311 Neb. 882] of his death sentences. His first claim alleges the sentences were effectively vacated, and then unconstitutionally "reimposed," as a result of the legislative process surrounding L.B. 268-a bill passed by the Nebraska Legislature in 2015[1] and repealed by public referendum thereafter. We refer to this as...

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