State v. Scoville

• Decision Date: 09 August 2022
• Docket Number: A-21-908
• Parties: STATE OF NEBRASKA, APPELLEE, v. DUSTIN A. SCOVILLE, APPELLANT.
• Court: Nebraska Court of Appeals

STATE OF NEBRASKA, APPELLEE,
v.
DUSTIN A. SCOVILLE, APPELLANT.

No. A-21-908

Court of Appeals of Nebraska

August 9, 2022

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Kearney County: Terri S. Harder, Judge. Affirmed.

Dustin A. Scoville, pro se.

Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

Moore, Riedmann, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Moore, Judge.

INTRODUCTION

Dustin A. Scoville appeals from an order of the district court for Kearney County, Nebraska, denying his petition for writ of error coram nobis and/or postconviction relief. For the reasons set forth below, we affirm.

STATEMENT OF FACTS

In 2011, the State charged Scoville with child abuse resulting in death in violation of Neb. Rev. Stat. § 28-707(6) (Cum. Supp. 2010), a Class IB felony. Subsequently, Scoville pled no contest to an amended information charging him with attempted child abuse resulting in death, a Class II felony. See Neb. Rev. Stat. § 28-201(4)(a) (Cum. Supp. 2010); § 28-707. The district court accepted Scoville's plea and found him guilty. The court later sentenced Scoville to 49 to 50 years in prison. Scoville appealed, alleging that the court erred in imposing an excessive sentence. He also assigned error to a discovery ruling made by the court. This court affirmed via memorandum

1

opinion, and mandate was issued on March 27, 2012. See State v. Scoville, 19 Neb.App. xxvii (No. A-11-874, Feb. 21, 2012).

On September 27, 2021, Scoville filed a verified motion for petition for writ of error coram nobis and/or postconviction relief. He alleged that his trial and appellate counsel were ineffective with respect to legislative changes made to the child abuse and sentencing statutes in 2012 and 2015. He also claimed that his counsel was ineffective for informing him, in a letter dated April 5, 2012, that all of his remedies for relief from his conviction and sentence were exhausted.

Also on September 27, 2021, the district court entered an order, giving the State 30 days to file a written response to Scoville's motion. The court entered a further order on October 5, setting forth more specifically what the court expected from the State in terms of its response. The State filed its response to Scoville's motion on October 27.

On October 27, 2021, the district court entered an order, denying Scoville's request for a writ of error coram nobis and/or postconviction relief without further hearing. The court found that Scoville's motion for postconviction relief was time barred. The court did not specifically address Scoville's request for a writ of error coram nobis beyond stating that Scoville's motion requested both coram nobis and postconviction relief and stating that it was denying Scoville's motion. The court also denied Scoville's request for appointment of counsel.

Scoville now appeals.

ASSIGNMENTS OF ERROR

Scoville asserts, reordered and restated, that the district court erred in (1) denying his motion without allowing him to respond to the State's responsive pleading and (2) failing to grant his motion on the basis of the requested writ of error coram nobis relief.

STANDARD OF REVIEW

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. State v. Cullen, 311 Neb. 383, 972 N.W.2d 391 (2022). Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which is reviewed independently of the lower court's ruling. State v. Hill, 310 Neb. 647, 968 N.W.2d 96 (2021).

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. State v. Koch, 304 Neb. 133, 933 N.W.2d 585 (2019). When reviewing a question of law, an appellate court resolves the question independently of the lower court's conclusion. Id.

The findings of the district court in connection with its ruling on a motion for a writ of error coram nobis will not be disturbed unless they are clearly erroneous. State v. Hessler, 295 Neb. 70, 886 N.W.2d 280 (2016).

ANALYSIS

Responsive Pleading.

Scoville asserts that the district court erred in denying his motion...