No. _________ ================================================================

In The

Supreme Court of the United States

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STATE OF NEBRASKA,

Petitioner, vs.

DOUGLAS M. MANTICH,

Respondent.

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On Petition For Writ Of Certiorari To The Nebraska Supreme Court

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PETITION FOR WRIT OF CERTIORARI

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JON BRUNING Nebraska Attorney General

JAMES D. SMITH* Nebraska Solicitor General *Counsel of Record P.O. Box 98920 Lincoln, NE 68509-8920 (402) 471-2686 james.smith@nebraska.gov

J. KIRK BROWN Senior Assistant Attorney General

Counsel for Petitioner

================================================================ COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether Miller v. Alabama, 132 S. Ct. 2455 (2012) – which held that a state may not sentence a teenage murderer to life imprisonment without parole unless the state provides a process whereby the sentencer considers the offender’s youth and attendant characteristics – should be applied retroac-tively to a murder conviction on collateral review.*

* This question has also been presented in the petition for writ of certiorari pending in Cunningham v. Pennsylvania, Doc. #13-1038 (seeking review of Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013).

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PARTIES TO THE PROCEEDING

The Petitioner is the State of Nebraska. The Respondent is Douglas M. Mantich, currently a prisoner of the State of Nebraska, serving a life sentence without parole for the crime of murder in the first degree. There are no other parties to this proceeding.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED................................... i

PARTIES TO THE PROCEEDING ..................... ii

OPINIONS BELOW ............................................. 1

JURISDICTION ................................................... 1

CONSTITUTIONAL PROVISION INVOLVED ... 1

STATEMENT OF THE CASE ............................. 2

A. The Crime and Trial .................................. 2

B. The Sentence ............................................. 4

C. Post-Miller grant of relief .......................... 4

REASONS TO GRANT THE PETITION ............. 6

I. This Court decides whether new rules of federal constitutional law are applied retroactively on collateral review .............. 6

II. Significant irreconcilable conflict of authority between federal courts and state courts of last resort .......................... 6

A. State courts holding that Miller is not retroactive under Teague .................... 7

B. State courts holding that Miller is retroactive under Teague .................... 9

C. Federal circuit courts holding Miller not retroactive under Teague .............. 10

D. Federal circuit court holding Miller retroactive under Teague .................... 11

E. U.S. Attorney General’s concession .... 11

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TABLE OF CONTENTS – Continued

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III. The Nebraska Supreme Court erroneous-ly applied Miller retroactively on collat-eral review by misapplying federal law .... 12

A. Federal Teague analysis was used ...... 12

B. Nebraska Supreme Court misapplied Teague in holding that Miller applies retroactively on collateral review ........ 13

C. Miller did not announce a “water-shed” rule ............................................. 18

D. The fact that Jackson v. Hobbs was on collateral review is not dispositive of the question presented .................... 18

CONCLUSION ..................................................... 20

APPENDIX

Nebraska Supreme Court Opinion, Filed Feb. 7, 2014 .............................................................. App. 1

District Court of Douglas County, Nebraska, Order, Filed Mar. 17, 2011 ............................. App. 54

Nebraska Supreme Court Opinion, Filed Feb. 9, 1996 ............................................................ App. 58

District Court Journal No. 3364 ....................... App. 85

Statutory Provisions .......................................... App. 87

Nebraska Supreme Court Order on Stay of Mandate, Filed Mar. 12, 2014 ....................... App. 90

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TABLE OF AUTHORITIES

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CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000) ........... 15

Beard v. Banks, 542 U.S. 406 (2004) ........................ 17

Bousley v. United States, 523 U.S. 614 (1998) .......... 14

Chambers v. State, 831 N.W.2d 311 (Minn. 2013) ......................................................................... 8

Collins v. Youngblood, 497 U.S. 37 (1990) ............... 20

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013) ......................................................................... 7

Craig v. Cain, No. 12-30035, 2013 U.S. App. LEXIS 431 (5th Cir. 2013) ..................................... 10

Danforth v. Minnesota, 552 U.S. 264 (2008) ............ 12

DeStafano v. Woods, 392 U.S. 631 (1968) ................. 18

Diatchenko v. District Attorney for Suffolk Dist., 466 Mass. 655 (2013) ...................................... 9

Evans-García v. United States, 2014 U.S. App. LEXIS 3855 (1st Cir. 2014) ..................................... 11

Geter v. State, 115 So.3d 375 (Fla.Dist.Ct.App. 2012), rehearing en banc denied, Geter v. State, 115 So.3d 385 (2013) ...................................... 8

Gideon v. Wainwright, 372 U.S. 335 (1963) ............. 18

Graham v. Collins, 506 U.S. 461 (1993) ................... 16

Graham v. Florida, 560 U.S. 48 (2010) .................... 15

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TABLE OF AUTHORITIES – Continued

Page

In re Morgan, 713 F.3d 1365 (11th Cir. 2013), rehearing en banc denied, In re Morgan, 717 F.3d 1186 (2013) ............................................... 10, 17

In re Pendleton, 732 F.3d 280 (3d Cir. 2013) ............ 11

In re Rainey, ___ Cal.Rptr.3d ___, 224 Cal. App. 4th 280 (Ct.App. 2014) ........................................... 10

In re Sparks, 657 F.3d 258 (5th Cir. 2011) ............... 15

Jackson v. Hobbs, 132 S. Ct. 2455 (2012) .... 13, 18, 19, 20

Johnson v. United States, 720 F.3d 720 (8th Cir. 2013) ................................................................ 11

Jones v. State, 122 So.3d 698 (Miss. 2013) ................. 9

Lambrix v. Singletary, 520 U.S. 518 (1997) ............. 17

Miller v. Alabama, 132 S. Ct. 2455 (2012) .......... passim

People v. Carp, 298 Mich.App. 472 (2012), discretionary appeal granted, People v. Carp, 838 N.W.2d 873 (2013) ............................................. 8

People v. Davis, ___ N.E.3d ___, 2014 IL 115595 (Ill. 2014) ................................................... 10

Sawyer v. Smith, 472 U.S. 227 (1990) ...................... 17

Schriro v. Summerlin, 542 U.S. 348 (2004) ............................................... 12, 14, 15, 16, 17

Sepulveda v. United States, 330 F.3d 55 (1st Cir. 2003) ................................................................ 16

State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 (2014) ............................................................... passim

State v. Ragland, 836 N.W.2d 107 (Iowa 2013).......... 9

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TABLE OF AUTHORITIES – Continued

Page

State v. Tate, 130 S.3d 829 (La. 2013), rehear-ing denied, 2014 La. LEXIS 207 (La. Jan. 27, 2014) ......................................................................... 7

Teague v. Lane, 489 U.S. 288 (1989) .................. passim

Tyler v. Cain, 533 U.S. 656 (2001) .............................. 6

Whorton v. Bockting, 549 U.S. 406 (2007) ................ 18

Williams v. Alabama, 2014 Ala. Crim. App. LEXIS 14 (April 4, 2014) ......................................... 7

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VIII .................................. 1, 14, 18

STATUTES

28 U.S.C. § 1257(a) ...................................................... 1

Neb. Rev. Stat. § 28-303 (Reissue 1985) ..................... 4

Neb. Rev. Stat. § 28-104 (Reissue 1985) ..................... 4

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OPINIONS BELOW

The opinion of the Nebraska Supreme Court in this matter, filed on Feb. 7, 2014, is reported as State v. Mantich, 287 Neb. 320, 842 N.W.2d 716. (Pet. App. 1)

The March 12, 2014 order of the Nebraska Su-preme Court staying its mandate in this matter is not reported. (Pet. App. 90)

The opinion of the District Court of Douglas County, Nebraska, denying state postconviction relief is unreported. (Pet. App. 54)

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JURISDICTION

This petition for certiorari is filed within ninety days of the issuance of the Nebraska Supreme Court’s opinion. This Court has jurisdiction under 28 U.S.C. § 1257(a).

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CONSTITUTIONAL PROVISION INVOLVED

The Eighth Amendment to the United States Constitution provides as follows:

Excessive bail shall not be required, nor ex-cessive fines imposed, nor cruel and unusual punishment inflicted.

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2

STATEMENT OF THE CASE

A. The Crime and Trial1

On December 5, 1993, a group gathered at a home in Omaha, Nebraska, ostensibly to mourn the death of Michael Campbell, who was a member of “Lomas,” an Omaha street gang. Numerous Lomas members attended the party, including Respondent Douglas Mantich. While at the party, Mantich con-sumed 5-10 beers and smoked parts of two marijuana cigarettes over a three-hour period.

Lomas gang members at the party discussed revenging Campbell’s death. Gang member Juan Carrera wanted to steal a car, and Daniel Eona made a plan about “jackin’ somebody putting a gun to their head.” Gang member Angel Huerta intended to do a drive-by shooting of a house belonging to the grand-mother of a rival gang member, Ignacio Palma. Mantich knew that Huerta had a gun at the party.

As the party began to break up, Mantich’s girl-friend, Diane Barrientos, offered to give Carrera and Eona a ride home. They refused. Eona said he intend-ed to get a “G-ride” home, which Barrientos under-stood to mean that Eona would steal a car. Mantich waited in front of the party house while Eona and fellow gang member Gary Brunzo left to find a car.

1 The following is taken from the Nebraska Supreme Court’s description of Mantich’s crime in his direct appeal, State v. Mantich, 249 Neb. 311, 314-317 (1996).

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Eona and Brunzo returned within 15 minutes driving a maroon 1989 Dodge Caravan. Carrera and Huerta got into the van; Mantich started to follow. Barrientos begged Mantich to go home with her and tried to “hang” on Mantich to prevent him from joining the other gang members. That didn’t stop Mantich from jumping in, even though he knew the van was probably stolen.

Mantich soon learned that his fellow gang mem-bers had kidnapped Henry Thompson, who was on the floor between the driver and passenger seats, hands behind his head. The Lomas gang members taunted Thompson, demanded money, and told him “We’re gonna shoot you” and “You’re gonna die.” Thompson cried and pled for his life.

To hide their gang affiliation, the Lomas mem-bers chanted words like “Cuz” and “Blood” to make Thompson think they belonged to the Bloods, another Omaha street gang. Brunzo and Eona jabbed their gun barrels into Thompson’s head repeatedly. They also rifled Thompson’s pockets and stole his wallet.

Carrera handed Mantich a gun and, at the other gang members’ urging, Mantich executed Thompson with a single shot to the back of his head. Later, Mantich bragged about the murder to Brian Dilly and Dilly’s two brothers. Mantich told Brian that if he didn’t believe Mantich, Brian should watch the 6 o’clock news. When the news told the story about Thompson’s murder, Mantich boasted, “I told you so” and then retold the story of the brutal execution.

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When arrested and confronted with the allega-tions against him, Mantich lied and said that Brunzo shot Thompson. It was only after further interroga-tion that Mantich broke down and admitted that he was, in fact, the murderer.

Tried as an adult, a jury convicted Mantich of murder in the first degree and use of a firearm to commit a felony. That conviction became final on February 9, 1996.

B. The Sentence

Mantich was 16 years old when he executed Henry Thompson. (Pet. App. 1) At that time, Nebras-ka punished the crime of Murder in the First Degree with a maximum penalty of death and a minimum of life imprisonment without parole. Neb. Rev. Stat. § 28-303 (Reissue 1985) and § 28-104 (Reissue 1985). (Pet. App. 88-89; 87) The trial court sentenced Mantich to life without parole.

C. Post-Miller grant of relief

In his state postconviction proceeding, Mantich argued that his sentence violated the Eighth Amendment. The state trial court denied relief and Mantich appealed. (Pet. App. 54)

The Nebraska Supreme Court concluded that this Court’s ruling in Miller v. Alabama, 132 S. Ct.

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2455 (2012), was “defacto substantive”2 and thus should be given retroactive application to Mantich’s sentence under Teague v. Lane, 489 U.S. 288 (1989):

Because the rule announced in Miller is more substantive than procedural and because the Court has already applied that rule to a case on collateral review, we conclude that the rule announced in Miller applies retroactive-ly to Mantich.

(Pet. App. 33) “[A]ny other result would be ‘terribly unfair.’ ” Id.

In his dissenting opinion, Associate Justice Cassel (joined by Chief Justice Heavican) stated:

[Relying upon perceptions of what is “fair”] is a dangerous expansion of the power of judg-es, because it places no principled limit upon the scope of judicial power. While the distinc-tion between procedural and substantive may be difficult to apply, it affords a princi-pled basis for decision. If a judge allows his or her perceptions of fairness to intrude, the decision ceases to be an application of the law and becomes an application of the judge’s personal biases and preferences.

(Pet. App. 39)

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2 State v. Mantich, 287 Neb. at 340. (Pet. App. 30)

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REASONS TO GRANT THE PETITION

I. This Court decides whether new rules of federal constitutional law are applied ret-roactively on collateral review.

A new rule of federal constitutional law is to be applied retroactively only if this Court has specifical-ly held that the new rule is retroactively applicable to cases on collateral review. Tyler v. Cain, 533 U.S. 656, 662 (2001).

This Court has not yet decided whether Miller v. Alabama is to be applied retroactively on collateral review under the standards of Teague v. Lane, 489 U.S. 288 (1989).

The federal and state courts, the federal and state governments, the federal and state prisoners serving mandatory life sentences without parole for the crime of first degree murder committed while teenagers – all deserve a uniform answer to the question presented. This can only be achieved by this Court addressing and resolving the question present-ed.

II. Significant irreconcilable conflict of

authority between federal courts and state courts of last resort.

The states’ highest courts and the federal courts are hopelessly split on the question of Miller’s retro-active application to cases on collateral review upon application of the Teague analysis.

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A. State courts holding that Miller is not retroactive under Teague.

The following state supreme courts, applying Teague standards, have concluded that Miller is not retroactive on collateral review:

• Williams v. Alabama, 2014 Ala. Crim. App. LEXIS 14 (April 4, 2014) (“[T]he rule announced in Miller v. Alabama is procedural in nature and does not fall within the narrow exception recognized for newly announced procedural rules; thus, the rule announced in Miller is subject to the general rule of nonretro-activity.”).

• State v. Tate, 130 S.3d 829, 844 (La. 2013), rehearing denied, 2014 La. LEXIS 207 (La. Jan. 27, 2014) (“[W]e find, un-der the Teague analysis, Miller sets forth a new rule of criminal constitutional procedure, which is neither a substan-tive nor a watershed rule implicative of the fundamental fairness and accuracy of the criminal proceeding. Accordingly, we find the Miller rule is not subject to retroactive application on collateral re-view.”).

• Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013) (“[N]othing in Appel-lant’s arguments persuades us that Mil-ler’s proscription of the imposition of mandatory life-without-parole sentences upon offenders under the age of eighteen at the time their crimes were committed

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must be extended to those whose judg-ments of sentence were final as of the time of Miller’s announcement.”).

• Chambers v. State, 831 N.W.2d 311, 329-30 (Minn. 2013) (“[W]e conclude that the rule announced in Miller is procedural, not substantive, for three reasons. First, the Miller rule does not eliminate the power of the State to impose the pun-ishment of life imprisonment without the possibility of release upon a juvenile offender who has committed a homicide offense. Second, our analysis is con-sistent with relevant federal decisions. Third, the Miller rule did not announce a new element.”).

The following state intermediate appellate courts have reached the same conclusion:

• Geter v. State, 115 So.3d 375, 385 (Fla.Dist.Ct.App. 2012), rehearing en banc denied, Geter v. State, 115 So.3d 385 (2013) (“Miller does not warrant ret-roactive application to Florida juvenile homicide offenders whose convictions and sentences were final as of June 25, 2012, the date Miller was issued.”).

• People v. Carp, 298 Mich.App. 472, 515 (2012), discretionary appeal granted, People v. Carp, 838 N.W.2d 873 (2013) (. . . Miller does not comprise a substan-tive new rule and, therefore, is not sub-ject to retroactive application for cases on collateral review. . . .”).

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B. State courts holding that Miller is ret-roactive under Teague.

The following state courts have reached the opposite conclusion and held that Miller is retroactive on collateral review upon applying Teague standards:

• State v. Mantich, 287 Neb. 320, 342 (2014)3 (“Because the rule announced in Miller is more substantive than proce-dural and because the Court has already applied that rule to a case on collateral review, we conclude that the rule an-nounced in Miller applies retroactively to Mantich.”).

• Jones v. State, 122 So.3d 698, 703 (Miss. 2013) (“We are of the opinion that Miller created a new, substantive rule which should be applied retroactively to cases on collateral review.”).

• State v. Ragland, 836 N.W.2d 107, 117 (Iowa 2013) (“[W]e hold Miller applies retroactively.”).

• Diatchenko v. District Attorney for Suf-folk Dist., 466 Mass. 655, 666 (2013) (“[W]e conclude that the ‘new’ constitu-tional rule announced in Miller is sub-stantive and, therefore, has retroactive application to cases on collateral review, . . . ”).

3 The decision for which the Petitioner seeks this Court’s review.

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• In re Rainey, ___ Cal.Rptr.3d ___, 224 Cal. App. 4th 280, 290 (Ct.App. 2014) (“We therefore conclude Miller announced a new substantive rule that applies retroac-tively to cases on collateral review.”).

• People v. Davis, ___ N.E.3d ___, 2014 IL 115595 (Ill. 2014) (“[W]e view Miller as a new substantive rule, which is outside of Teague rather than an exception there-to.”).

C. Federal circuit courts holding Miller

not retroactive under Teague.

The following federal circuit courts have conclud-ed that Miller is not retroactive:

• In re Morgan, 713 F.3d 1365, 1367 (11th Cir. 2013), rehearing en banc denied, In re Morgan, 717 F.3d 1186 (2013) (“[T]he Supreme Court has not held that Miller is retroactively applicable to cases on collateral review.”).

• Craig v. Cain, No. 12-30035, 2013 U.S. App. LEXIS 431, 4-5 (5th Cir. 2013) (un-published opinion) (“Miller does not sat-isfy the test for retroactivity because it does not categorically bar all sentences of life imprisonment for juveniles; . . . ”).

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D. Federal circuit court holding Miller retroactive under Teague.

In re Pendleton, 732 F.3d 280 (3d Cir. 2013), permitted petitioners to file successive habeas corpus petitions in the district court because the circuit court concluded the petitioners had made a prima facie showing that Miller is to be applied retroactively on collateral review.

E. U.S. Attorney General’s concession.

In two cases, the federal courts have been denied the opportunity for judicial analysis of the question presented as a result of the United States Depart-ment of Justice’s concession of Miller retroactivity. See, Evans-García v. United States, 2014 U.S. App. LEXIS 3855, 8-9, fn2 (1st Cir. 2014) (“Whether the new rule announced in Miller has been made retroac-tive by the Supreme Court presents a much closer question. We need not answer that question, however, because the government has also conceded that Miller has been made retroactive, at least under the prima facie standard.”); Johnson v. United States, 720 F.3d 720, 721 (8th Cir. 2013) (“The government here has conceded that Miller is retroactive and that Mr. Johnson may be entitled to relief under that case, and we therefore conclude that there is a sufficient show-ing here to warrant the district court’s further explo-ration of the matter.”).

The federal executive branch’s unexplained concession in a few federal courts will not resolve the

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conflict of authority on the constitutional issue which requires this Court’s judicial analysis and decision.

III. The Nebraska Supreme Court erroneously

applied Miller retroactively on collateral review by misapplying federal law.

A. Federal Teague analysis was used.

The Nebraska Supreme Court made it clear that it was applying the federal Teague standard in resolv-ing the issue of retroactive application of Miller on collateral review:

We have adhered to the Teague/Schriro test in the two cases in which we have addressed the retroactivity of a new rule announced by the U.S. Supreme Court to cases on state postconviction review and we see no reason to depart from that analysis.

(Pet. App. 16) Throughout the remainder of its analy-sis, the Nebraska Supreme Court relied exclusively upon the federal Teague-based standards to reach its conclusion. 4

4 Although the Nebraska Supreme Court made reference to this Court’s opinion in Danforth v. Minnesota, 552 U.S. 264 (2008), which recognized that states may employ broader retroactivity standards that those announced in Teague when deciding issues of retroactivity under state law (Pet. App. 15), the Nebraska Supreme Court made clear that it was applying only the federal Teague standard in resolving this issue. (Pet. App. 16) As a result, there is no independent state ground for the Nebraska Supreme Court’s decision.

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B. Nebraska Supreme Court misapplied Teague in holding that Miller applies retroactively on collateral review.

The new rule that Miller announced is procedur-al, not substantive. Miller is not the first “watershed” procedural rule that this Court recognized in Teague would be a very rare – if not hypothetical – occur-rence.

There is no real dispute that the rule announced in Miller is new. At the time this Court decided Mil-ler, 28 states had mandatory life-without-parole sentencing schemes for teenage murderers tried and convicted as adults. This Court had never before suggested that these state statutes were unconstitu-tional for not providing individualized sentencing factors. The Nebraska Supreme Court held that the rule announced in Miller is a new rule. (Pet. App. 29)

Where the Nebraska Supreme Court erred in Mantich was in its conclusion that “the rule an-nounced in Miller is more substantive than procedur-al and because the Court has already applied that rule to a case on collateral review [Jackson v. Hobbs, 132 S. Ct. 2455 (2012), the companion case to Miller], we conclude that the rule announced in Miller applies retroactively to Mantich.” (Pet. App. 33) That conclu-sion conflicts with Miller’s own description of the rule it was announcing, as well as this Court’s retroactivi-ty precedent. Miller could not have been more clear. In explaining the rule announced, this Court empha-sized that its Miller decision did “not categorically bar

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a penalty for a class of offenders or type of crime.” 132 S. Ct. at 2471 (emphasis added). “Instead,” the deci-sion “mandate[d] only that a sentence follow a certain process – considering an offender’s youth and at-tendant characteristics – before imposing a particular penalty.” Id. (emphasis added). Miller’s self-description is entirely consistent with a Teague analysis conclusion the Miller rule is procedural in nature.

As this Court has explained, new substantive rules are those that “narrow the scope of a criminal statute by interpreting its terms,” and those that “place particular conduct or persons covered by the statute beyond the State’s power to punish.” Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004) (citations omitted). To put it another way, “a decision that modifies the elements of an offense is normally sub-stantive,” and one that does not “alter the range of conduct the statute punishes” is procedural. Id. at 354. Unlike substantive rules, procedural rules “regulate only the manner of determining the defend-ant’s culpability[.]” Id. at 353, citing Bousley v. United States, 523 U.S. 614, 620 (1998) (emphasis added).

In Miller, this Court rejected a plea to categori-cally ban life-without-parole sentences for teenage murderers. 132 S. Ct. at 2469 (“we do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles.”). Instead, the Court mandated a certain “process,” i.e., an individualized sentencing process to consider a murderer’s “youth and attendant characteristics.” Id. Thus, a teenage

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murderer remains exposed to the imposition of a life without parole sentence after Miller. All that Miller changed is the procedure a court must engage in before imposing a sentence. Miller did not narrow the scope of a criminal statute, or place particular con-duct outside a state’s power to punish. Schriro, 542 U.S. at 351-52. Thus, the Miller rule is procedural, just as the opinion itself announced.

That conclusion is buttressed by other recent decisions of the Court. On the one hand, Graham v. Florida, 560 U.S. 48 (2010), was an example of a new substantive constitutional rule applicable on collat-eral review. Graham held that the government could not impose a life-without-parole sentence on a teen-ager convicted of a non-homicide offense. Graham announced a substantive rule, because it excluded a category of punishment for a class of defendants. Lower courts have had no trouble determining that Graham must be applied retroactively. E.g., In re Sparks, 657 F.3d 258, 262 (5th Cir. 2011).

On the other hand, Apprendi v. New Jersey, 530 U.S. 466 (2000), held that a jury must find, beyond a reasonable doubt, any fact (other than a prior convic-tion) that results in an increased penalty beyond the prescribed statutory maximum. While a defendant with a final conviction and an enhanced sentence might very well receive a different outcome if allowed a second bite at the apple in front of a jury, the hold-ing merely changes process. Unsurprisingly (and correctly), the federal courts have unanimously held Apprendi to be procedural, not substantive, and thus

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not retroactive to final convictions. E.g., Sepulveda v. United States, 330 F.3d 55, 61 (1st Cir. 2003).

The most analogous case is Graham v. Collins, 506 U.S. 461 (1993). In Collins, a 17-year-old mur-derer who was sentenced to death argued that the jury was not allowed to consider mitigating evidence of his youth, family background, and positive charac-ter traits, id. at 463, a claim virtually indistinguisha-ble from the one Mantich makes here. Nonetheless, the Court determined that the proposed new rule – enabling the jury to more fully consider these mitigat-ing circumstances of the murderer’s youth – was not a substantive change in law. Collins, 506 U.S. at 475. “Plainly, [the Teague substantive] exception has no application here because the rule Graham seeks would neither decriminalize a class of conduct nor prohibit the imposition of capital punishment on a particular class of persons.” Id. at 477 (internal quotes omitted). So too here, a new rule requiring a process to consider the mitigating circumstances of youthfulness is not a substantive change in the law.

In its decision below, the Nebraska Supreme Court began by acknowledging that the Miller rule “certainly contains a procedural component, because it specifically requires that a sentence follow a certain process before imposing the sentence of life impris-onment” without parole on a teenage murderer. (Pet. App. 29) However, the Nebraska Supreme Court then erred by holding Miller’s rule analogous to the rule in Schriro, because Miller “imposed a new requirement as to what a sentence must consider in order to

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constitutionally impose life imprisonment without parole” on a teenage murderer. (Pet. App. 30)

What Schriro actually said was that “rules that regulate only the manner of determining the defen-dant’s culpability are procedural.” 542 U.S. at 353 (emphasis added). “A new rule is substantive when that rule places an entire class beyond the power of the government to impose a certain punishment regardless of the procedure followed, not when the rule expands the range of possible sentences.” In re Morgan, 713 F.3d at 1368 (emphasis added). The latter kind of rule, one which expands the range of possible sentences, is precisely the rule adopted by Miller.

In the death-penalty context, this Court has denied retroactive application of new procedural rules. See, Lambrix v. Singletary, 520 U.S. 518, 539 (1997) (prohibiting a jury from weighing aggravating circumstances in some instances); Sawyer v. Smith, 472 U.S. 227, 241 (1990) (insuring that a jury is not led to believe that responsibility rests elsewhere for determining a death sentence’s appropriateness); Beard v. Banks, 542 U.S. 406, 417 (2004) (jury is not barred from considering all mitigating evidence). Miller’s imposition of a new process that requires consideration of mitigating factors is procedural, not substantive.

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C. Miller did not announce a “watershed” rule.

This Court has defined a watershed rule as one that “implicate[s] the fundamental fairness” of crimi-nal proceedings. Teague, 489 U.S. at 311, 312 (plurali-ty opinion). To give meaning to that definition, this Court has cited only one example of what might be considered watershed, the landmark right-to-counsel ruling in Gideon v. Wainwright, 372 U.S. 335 (1963). And the Court has emphasized that it has “rejected every claim that a new rule satisfied the requirements for watershed status.” Whorton v. Bockting, 549 U.S. 406, 417-18 (2007).

Miller is not a “watershed” case. The sweep of its rule is limited, modifying only the process by which a sentencer must reach its decision in a limited class of cases, and even then, only for an even more limited class of offenders. See, DeStafano v. Woods, 392 U.S. 631, 635 (1968) (the right to a jury trial under the Sixth Amendment applied to the states is not a watershed rule.) Accordingly, Miller did not announce a watershed rule that requires its retroactive applica-tion and the re-opening of otherwise final first degree murder convictions.

D. The fact that Jackson v. Hobbs was on

collateral review is not dispositive of the question presented.

The Nebraska Supreme Court’s analysis was further misguided by relying upon the fact that

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Jackson v. Hobbs, the companion case with Miller, was a collateral review case.

First, this Court did not discuss Teague or the issue of retroactivity in the context of Miller’s direct review or Jackson’s collateral attack. Both cases were remanded “for further proceedings not inconsistent with this opinion.” 132 S. Ct. at 2475. The disposition did not address or decide the question presented in this case.

Second, a state must raise the issue of retroactive application or it is waived. This Court need not address a retroactivity issue that a state waived or failed to raise:

Generally speaking, “[r]etroactivity is proper-ly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated.” Teague, supra, 489 U.S., at 300. The State of Texas, however, did not address retroactivity in its petition for certiorari or its briefs on the merits, and when asked about the issue at oral argu-ment, counsel answered that the State had chosen not to rely on Teague. Tr. of Oral Arg. 4-5. Although the Teague rule is grounded in important considerations of federal-state re-lations, we think it is not “jurisdictional” in

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the sense that this Court, despite a limited grant of certiorari, must raise and decide the issue sua sponte.

Collins v. Youngblood, 497 U.S. 37, 40-41 (1990).

In Jackson v. Hobbs, Arkansas did not raise the issue of retroactivity, either in its brief in opposition to Jackson’s petition for certiorari, or in its merits briefing. Arkansas waived any retroactivity claim. As a result, this Court in Miller and Jackson never discussed Teague or retroactivity.

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CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JON BRUNING Attorney General

JAMES D. SMITH* Nebraska Solicitor General *Counsel of Record P.O. Box 98920 Lincoln, NE 68509-8920 (402) 471-2686 james.smith@nebraska.gov

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STATE OF NEBRASKA, APPELLEE, v. DOUGLAS M. MANTICH, APPELLANT.

No. S-11-301.

SUPREME COURT OF NEBRASKA

287 Neb. 320; 2014 Neb. LEXIS 16

February 7, 2014, Filed

COUNSEL: Adam J. Sipple, of Johnson & Mock, for appellant.

Jon Bruning, Attorney General, and J. Kirk Brown for appellee.

JUDGES: HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, AND CASSEL, JJ. CASSEL, J., dissenting. HEAVICAN, C.J., joins in this dissent.

OPINION BY: STEPHAN

OPINION

STEPHAN, J.

In 1994, Douglas M. Mantich was convicted of first degree murder and use of a firearm to commit a felony. He was sentenced to life imprisonment for the murder conviction and 5 to 20 years’ imprisonment for the firearm conviction. The murder was commit-ted when Mantich was 16 years old. On direct appeal, we affirmed his convictions and life imprisonment

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sentence and vacated and remanded his firearm sentence for resentencing.1

In 2010, Mantich filed an amended post-conviction motion alleging his life imprisonment sentence violated the Eighth Amendment’s prohibi-tion on cruel and unusual punishment because it was (1) categorically prohibited under the U.S. Supreme Court’s holding in Graham v. Florida2 and (2) grossly disproportionate to the offense for which he was convicted. Mantich also alleged that the attorney who represented him at his trial and on direct appeal was ineffective in not asserting these Eighth Amendment claims. The district court denied the postconviction motion without conducting an evidentiary hearing, and Mantich appealed from that order.

We heard oral arguments in the appeal on Octo-ber 7, 2011. On July 11, 2012, we set the case for reargument and ordered supplemental briefing after the U.S. Supreme Court held in Miller v. Alabama3 that the Eighth Amendment forbids a state sentenc-ing scheme that mandates life in prison without the possibility of parole for a juvenile offender convicted of homicide. We now hold that Mantich’s life impris-onment sentence is unconstitutional under Miller.

1 State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996). 2 Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). 3 Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Cite as 287 Neb. 320

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I. FACTS

On December 5, 1993, a gathering was held to mourn the death of a “Lomas” gang member. Several members of the gang attended the party, including Mantich, Gary Brunzo, Daniel Eona, Juan Carrera, and Angel Huerta. At the gathering, Mantich con-sumed between 5 and 10 beers and smoked marijua-na in a 21/2-hour period.

Sometime after 1 a.m., Carrera decided that he wanted to steal a car and commit a driveby shooting of a member of a rival gang. While holding a gun, Eona responded that he also wanted to steal a car and talked about “jackin’ somebody” and “putting a gun to their head.” Brunzo and Eona then walked toward Dodge Street to steal a vehicle. They returned about 20 minutes later in a stolen red minivan, and Carrera and Huerta got in. Over his girlfriend’s objection and attempt to physically restrain him, Mantich also got into the van.

The van had no rear seats. Eona was in the driver’s seat, and Brunzo was in the front passenger seat. Carrera sat behind the driver’s seat; Huerta sat on the passenger side, close to the sliding side door; and Mantich sat behind Carrera and Huerta, toward the back of the van. After a short time, Mantich realized that a man, later identified as Henry Thompson, was in the van. Thompson was kneeling between the driver’s seat and the front passenger seat with his hands over his head and his head facing the front of the van.

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The gang members began chanting “Cuz” and “Blood.” Mantich thought the purpose was to make Thompson believe they were affiliated with a differ-ent gang. Eona demanded Thompson’s money, and Brunzo told Thompson they were going to shoot him. Mantich saw Brunzo and Eona poke Thompson in the head with their guns. Eventually, a shot was fired and Thompson was killed. Thompson’s body was pulled out of the van and left on 13th Street.

The group then drove to Carrera’s house so he could retrieve his gun. After this, they drove by a home and fired several shots at it from the vehicle. Later, they sank the van in the Missouri River and walked back to 13th Street. From there, Mantich and Huerta took all the guns and went to Huerta’s house to hide them. Brunzo, Eona, and Carrera walked toward the area of Thompson’s body.

After hiding the guns with Huerta, Mantich walked to Brian Dilly’s house. While still intoxicated, Mantich told Dilly and Dilly’s brothers about the events of the night. Mantich claimed he had pulled the trigger and killed Thompson. When the 6 o’clock news featured a story on the homicide, Mantich said, “ ‘I told you so,’ ” and “ ‘I told you I did it.’ ” About an hour after the newscast, Mantich told Dilly that Brunzo was actually the person who shot and killed Thompson. The police later learned about Mantich’s conversations with Dilly, and arrest warrants were issued for Mantich, Brunzo, Eona, and Carrera. Mantich was arrested on January 4, 1994.

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Mantich agreed to talk with Omaha police about what happened and initially claimed that Brunzo shot Thompson. The police told Mantich that state-ments were being obtained from Brunzo, Eona, and Carrera and that Mantich’s statement was incon-sistent with the information the police had acquired. The police also told Mantich that Dilly said Mantich confessed to shooting Thompson. Mantich admitted telling Dilly he shot Thompson, but explained that it was a lie and that he was only trying to look like “a bad ass.” Mantich claimed that he had not shot anyone and that Brunzo was the shooter.

The police then told Mantich they knew what happened and assured Mantich that his family and girlfriend “would not abandon him” if he told the truth. At this point, Mantich admitted that he had pulled the trigger. Mantich said, “ ‘I’m sorry it hap-pened. I wished it wouldn’t have happened.’ ” Mantich further stated, “ ‘They handed me the gun and said shoot him, so I did it.’ ” Mantich again confessed during a taped statement to shooting Thompson.

Mantich testified in his own behalf at trial. He acknowledged his statements to Dilly and the police that he had shot Thompson, but told the jury that he had not shot Thompson. On September 26, 1994, the jury returned a verdict of guilty on one charge of first degree murder and one charge of use of a firearm to commit a felony.

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1. SENTENCING AND DIRECT APPEAL

In October 1994, the district court sentenced Mantich to a term of life imprisonment on the first degree murder conviction and to 5 to 20 years’ im-prisonment on the conviction of use of a firearm to commit a felony. Mantich’s life imprisonment sen-tence carries no possibility of release on parole unless the Board of Pardons commutes his sentence to a term of years.4 The court ordered the sentences to run consecutively.

On direct appeal, Mantich assigned various errors, including that the evidence was insufficient to support his convictions. He did not assert an Eighth Amendment claim with respect to his life imprison-ment sentence. We found no merit in any of his assignments of error, but concluded that there was plain error resulting from a failure to give credit for time served on his sentence for use of a firearm to commit a felony. We therefore affirmed his convictions but vacated the firearm sentence and remanded the cause with directions to resentence Mantich, giving him credit for time served.5

4 See, Neb. Const. art. IV, § 13; Neb. Rev. Stat. § 83-1,126 (Reissue 2008); Poindexter v. Houston, 275 Neb. 863, 750 N.W.2d 688 (2008). 5 See Mantich, supra note 1.

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2. POSTCONVICTION PROCEEDINGS

Mantich filed a pro se motion for postconviction relief on September 25, 2006. The court dismissed the first five grounds of the motion, reasoning they were the same grounds Mantich raised on direct appeal. The court did not dismiss Mantich’s claim of ineffec-tive assistance of counsel and appointed counsel to represent Mantich with respect to that claim. That attorney filed the operative amended motion for postconviction relief on August 31, 2010.

The amended motion asserted Mantich’s sentence of life imprisonment without parole violated the Eighth Amendment because it was (1) categorically prohibited under Graham v. Florida6 and (2) dispro-portionate to the offense for which he was convicted. In Graham,7 the U.S. Supreme Court held that “the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender.” The amended motion also alleged the attorney who represented Mantich during trial and on direct appeal was ineffective for not objecting to the life imprisonment without parole sentence on Eighth Amendment grounds.

The State moved to dismiss Mantich’s amended motion, asserting Graham did not apply because Mantich was convicted of a homicide offense. The

6 Graham, supra note 2. 7 Id., 560 U.S. at 75.

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State further contended that Mantich’s counsel was not ineffective.

On March 17, 2011, the district court denied Mantich’s amended motion without an evidentiary hearing. The court concluded that Mantich’s life imprisonment sentence was not categorically barred under Graham or any decision of this court. Mantich filed this timely appeal. While it was pending, the U.S. Supreme Court decided Miller v. Alabama.8 Miller held that a sentence of mandatory life impris-onment without parole for a juvenile violated the Eighth Amendment’s prohibition on cruel and unusu-al punishment. We ordered reargument and supple-mental briefing on the effect of Miller on Mantich’s postconviction motion.

II. ASSIGNMENTS OF ERROR

In the original appeal from the denial of postconviction relief, Mantich assigned, restated and summarized, that the district court erred in (1) failing to vacate his sentence pursuant to the holding of Graham, (2) failing to vacate his sentence as uncon-stitutionally disproportionate to the offense of felony murder, and (3) failing to hold an evidentiary hearing on the issues presented by his ineffective assistance of counsel and Eighth Amendment claims. After we ordered supplemental briefing in light of Miller,

8 Miller, supra note 3.

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Mantich reasserted all of the assignments of error raised in his initial brief. He also assigned, restated and consolidated, that his life imprisonment sentence is a violation of the 8th and 14th Amendments based on the U.S. Supreme Court’s decision in Miller.

III. STANDARD OF REVIEW

Whether a sentence violates the Eighth Amend-ment’s cruel and unusual punishment clause presents a question of law.9 When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court’s ruling.10

IV. ANALYSIS

1. MILLER V. ALABAMA APPLIES TO MANTICH

In Miller v. Alabama,11 the Court held that the “Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” The Court reached its conclusion by applying two lines of precedent. First, the Court recognized two previous juvenile cases, Graham v. Florida12 and Roper v.

9 See State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003). 10 State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009); State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008). 11 Miller, supra note 3, 132 S. Ct. at 2469. 12 Graham, supra note 2.

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Simmons.13 Graham held that a juvenile could not be sentenced to life imprisonment without parole for a nonhomicide offense. Roper held that a juvenile could not be sentenced to death. Both thus announced categorical bans on sentencing practices as they apply to juveniles. The Court in Miller reasoned that Gra-ham and Roper established that “children are consti-tutionally different from adults for purposes of sentencing.”14 Specifically, the Court in Miller noted that compared to adults, children lack maturity and have an underdeveloped sense of responsibility, are more vulnerable to outside influences and pressures, and have yet to fully develop their character. Because of these differences, the Court reasoned juveniles have “diminished culpability and greater prospects for reform.”15

Second, the Miller Court recognized prior Court jurisprudence requiring individualized decisionmaking in capital punishment cases.16 It then applied this jurisprudence to the imposition of life imprisonment on juveniles by reasoning that a life imprisonment

13 Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). 14 Miller, supra, note 3, 132 S. Ct. at 2464. 15 Id. 16 Miller, supra note 3. See, Sumner v. Shuman, 483 U.S. 66, 107 S. Ct. 2716, 97 L. Ed. 2d 56 (1987); Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976).

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without parole sentence for a juvenile is tantamount to a death sentence for an adult.17 According to the Court, because the Eighth Amendment when applied to adults requires individualized sentencing prior to the imposition of a death sentence, the Eighth Amendment when applied to juveniles requires individualized sentencing prior to the imposition of a sentence of life imprisonment without parole.18

The threshold question presented to us in this appeal is whether the holding in Miller applies to Mantich so that his sentence must be vacated and this cause remanded for a new sentencing hearing. We held in State v. Castaneda19 that life imprison-ment sentences imposed on juveniles in Nebraska prior to Miller were mandatory sentences and were equivalent to life imprisonment without parole. But Mantich’s life imprisonment sentence was imposed and his first degree murder conviction became final years before Miller was decided. He is entitled to be resentenced only if the rule announced in Miller applies retroactively to cases that became final prior to its pronouncement, i.e., cases on collateral review.

17 Miller, supra note 3. 18 Id. 19 State v. Castaneda, 287 Neb. 289, ___ N.W.2d ___ (2014).

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(a) Retroactivity Test

In its 1989 decision in Teague v. Lane,20 the U.S. Supreme Court set forth a test for determining when a new rule of constitutional law will be applied to cases on collateral review. Before announcing the test, however, the Court emphasized that “the ques-tion ‘whether a decision [announcing a new rule should] be given prospective or retroactive effect should be faced at the time of [that] decision.’ ”21 The Court explained that “[r]etroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated.”22

According to Teague, “new rules should always be applied retroactively to cases on direct review, but . . . generally they should not be applied retroactively to criminal cases on collateral review.”23 The rationale for the distinction is that collateral review is not designed as a substitute for direct review and that

20 Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). 21 Id., 489 U.S. at 300, quoting Paul J. Mishkin, Foreword: The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56 (1965). 22 Teague, supra note 20, 489 U.S. at 300. 23 Id., 489 U.S. at 303.

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the government has a legitimate interest in having judgments become and remain final.24

Teague articulated two exceptions to the general rule of nonretroactivity for cases on collateral review. First, a new rule should be applied retroactively if it “places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.’ ”25 Second, a new rule should be applied retroactively if it “requires the observance of ‘those procedures that . . . are “implicit in the concept of ordered liberty.” ’ ”26 The ultimate holding in Teague was this: “Unless they fall within an excep-tion to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”27

Since Teague, the Court has refined the retroac-tivity analysis. The most significant refinement occurred in Schriro v. Summerlin.28 The issue in

24 See Teague, supra note 20. 25 Id., 489 U.S. at 307, quoting Mackey v. United States, 401 U.S. 667, 91 S. Ct. 1160, 28 L. Ed. 2d 404 (1971) (Harlan, J., concurring in part, and in part dissenting). 26 Id., quoting Mackey, supra note 25 (quoting Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937), overruled on other grounds, Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969)). 27 Teague, supra note 20, 489 U.S. at 310. 28 Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004).

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Schriro was whether the Court’s decision in Ring v. Arizona29 applied retroactively to a death penalty case on federal habeas review. In deciding this, the Court stated:

When a decision of this Court results in a “new rule,” that rule applies to all criminal cases still pending on direct review. . . . As to convictions that are already final, however, the rule applies only in limited circumstanc-es. New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by in-terpreting its terms, . . . as well as constitu-tional determinations that place particular conduct or persons covered by the statute be-yond the State’s power to punish. . . . Such rules apply retroactively because they “nec-essarily carry a significant risk that a de-fendant stands convicted of ‘an act that the law does not make criminal’ ” or faces a pun-ishment that the law cannot impose upon him.30

The Court explained that although it had some-times referred to rules of this type as “falling under an exception to Teague’s bar on retroactive applica-tion of procedural rules, . . . they are more accurately

29 Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). 30 Schriro, supra note 28, 542 U.S. at 351-52 (citations omitted).

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characterized as substantive rules not subject to the bar.”31

Schriro further explained that new “rules of procedure” generally do not apply retroactively.32 The only exception is those rules that are “ ‘ “watershed rules of criminal procedure” implicating the funda-mental fairness and accuracy of the criminal proceed-ing.’ ”33 This class of rules is extremely narrow.34

In 2008, the U.S. Supreme Court ruled that the Teague/Schriro retroactivity analysis it applies in federal habeas actions is not binding upon state courts when deciding issues of retroactivity under state law.35 In doing so, the Court noted that a state court is “ ‘free to choose the degree of retroactivity or prospectivity which [it] believe[s] appropriate to the particular rule under consideration, so long as [it] give[s] federal constitutional rights at least as broad a scope as the United States Supreme Court re-quires.’ ”36 In other words, states can give broader

31 Id., 542 U.S. at 352 n.4 (citations omitted). 32 Id., 542 U.S. at 352. 33 Id. 34 Id. 35 Danforth v. Minnesota, 552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008). 36 Id., 552 U.S. at 276, quoting State v. Fair, 263 Or. 383, 502 P.2d 1150 (1972).

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effect to new rules than is required by the Teague/ Schriro test.37

We have adhered to the Teague/Schriro test in the two cases in which we have addressed the retro-activity of a new rule announced by the U.S. Supreme Court to cases on state postconviction review,38 and we see no reason to depart from that analysis.

(b) Court Precedent

It is very clear that Miller announced a new rule. This is so because the rule announced in Miller was not dictated by precedent existing at the time Mantich’s first degree murder conviction became final.39 The new rule can apply to Mantich, who is before this court on collateral review, if it is either a substantive rule or a watershed rule of criminal procedure.40

According to Schriro, the key distinction in the retroactivity analysis is whether the new rule is substantive or procedural.41 Schriro held that

37 Danforth, supra note 35. 38 State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003); State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990), cert. granted and judgment vacated 498 U.S. 964, 111 S. Ct. 425, 112 L. Ed. 2d 409 (1990). 39 See Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007). 40 Id.; Schriro, supra note 28. 41 Schriro, supra note 28.

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substantive rules include those that (1) narrow the scope of a criminal statute by interpreting its terms or (2) place particular conduct or persons covered by the statute beyond the State’s power to punish. The second category encompasses “rules prohibiting a certain category of punishment for a class of defen-dants because of their status or offense.”42 Substan-tive rules apply retroactively because they carry a “ ‘significant risk’ ” that a defendant stands convicted of “ ‘ “an act that the law does not make criminal” ’ ” or “faces a punishment that the law cannot impose upon him.”43

It is clear that categorical bans on sentences are substantive rules.44 Rules forbidding imposition of the death sentence on persons with mental retardation45 or on juveniles46 and a rule forbidding life imprison-ment for a juvenile convicted of a nonhomicide of-fense47 have been considered substantive rules.48

42 Penry v. Lynaugh, 492 U.S. 302, 330, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), abrogated on other grounds, Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). 43 Schriro, supra note 28, 542 U.S. at 352, quoting Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998). 44 See Penry, supra note 42. 45 Atkins, supra note 42. 46 Roper, supra note 13. 47 Graham, supra note 2. 48 See, e.g., Allen v. Buss, 558 F.3d 657 (7th Cir. 2009) (Atkins); Nixon v. State, 2 So. 3d 137 (Fla. 2009) (Atkins); McStoots v. Com., 245 S.W.3d 790 (Ky. App. 2007) (Roper);

(Continued on following page)

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In comparison, rules that “regulate only the manner of determining the defendant’s culpability are procedural.”49 They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convict-ed with use of the invalidated procedure might have been acquitted otherwise.50

In the sentencing context, the Court has found a number of rules to be procedural. In Schriro v. Summerlin,51 the Court addressed whether the rule announced in Ring v. Arizona52 applied retroactively to cases on collateral review. Ring held that a jury, and not a judge, had to find an aggravating circum-stance necessary for imposition of the death penalty. Schriro held this rule was procedural, noting it merely “altered the range of permissible methods for determining whether a defendant’s conduct is punishable by death.”53 It noted that rules that “allocate decisionmaking authority in this fashion

Duncan v. State, 925 So. 2d 245 (Ala. Crim. App. 2005) (Roper); People v. Rainer, 2013 COA 51, 2013 WL 1490107 (Colo. App. 2013) (Graham); Bonilla v. State, 791 N.W.2d 697 (Iowa 2010) (Graham). 49 Schriro, supra note 28, 542 U.S. at 353. 50 Schriro, supra note 28. 51 Id. 52 Ring, supra note 29. 53 Schriro, supra note 28, 542 U.S. at 353.

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are prototypical procedural rules.”54 Notably, however, the Court stated:

This Court’s holding that, because [a state] has made a certain fact essential to the death penalty, that fact must be found by a jury, is not the same as this Court’s making a certain fact essential to the death penalty. The former was a procedural holding; the latter would be substantive.55

In Lambrix v. Singletary,56 the Court addressed whether the rule announced in Espinosa v. Florida57 applied retroactively to cases on collateral review. Espinosa held that if a sentencing judge in a state that requires specified aggravating circumstances to be weighed against any mitigating circumstances at the sentencing phase of a capital trial is required to give deference to a jury’s advisory sentencing recom-mendation, then neither the jury nor the judge is constitutionally permitted to weigh invalid aggravat-ing circumstances. Without extensive analysis, the Lambrix Court concluded this rule did not prohibit the imposition of capital punishment on a particular class of persons.

54 Id. 55 Id., 542 U.S. at 354. 56 Lambrix v. Singletary, 520 U.S. 518, 117 S. Ct. 1517, 137 L. Ed. 2d 771 (1997). 57 Espinosa v. Florida, 505 U.S. 1079, 112 S. Ct. 2926, 120 L. Ed. 2d 854 (1992).

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In Sawyer v. Smith,58 the Court addressed wheth-er the rule announced in Caldwell v. Mississippi59 applied retroactively to cases on collateral review. Caldwell held that the Eighth Amendment prohibits imposition of the death penalty by a sentencer that has been led to the false belief that the responsibility for determining the appropriateness of the sentence rests elsewhere. The Sawyer Court concluded the rule was not retroactive, because it was simply a proce-dural rule “designed as an enhancement of the accu-racy of capital sentencing.”60

(c) Miller and Other Jurisdictions

A number of jurisdictions have considered whether Miller announced a rule that is to be applied retroactively. The results are varied. The primary point of dissension is whether the rule announced in Miller is substantive.

The Louisiana Supreme Court held in State v. Tate61 that the rule announced in Miller was a procedural one, largely because the Court in Miller

58 Sawyer v. Smith, 497 U.S. 227, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990). 59 Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985). 60 Sawyer, supra note 58, 497 U.S. at 244. 61 State v. Tate, No. 2012-OK-2763, 2013 La. LEXIS 2376, 2013 WL 5912118 at *6 (La. Nov. 5, 2013), quoting Miller, supra note 3.

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specifically stated that “ ‘[o]ur decision does not categorically bar a penalty for a class of offenders or type of crime.’ ” Louisiana reasoned that Miller simp-ly “altered the range of permissible methods” for determining whether a juvenile could be sentenced to life imprisonment without parole.62 In Com. v. Cun-ningham63 the Pennsylvania Supreme Court adopted similar reasoning, holding that “by its own terms, the Miller holding ‘does not categorically bar a penalty for a class of offenders.’ ” A U.S. district court in Virginia has also adopted this rationale.64

The Minnesota Supreme Court held in Chambers v. State65 that the rule announced in Miller was procedural and not substantive because it did not “eliminate the power of the State to impose the punishment of life imprisonment without the possibil-ity of release upon a juvenile offender who has com-mitted a homicide offense.” Instead, it reasoned that Miller simply requires “ ‘that a sentencer follow a certain process – considering an offender’s youth and attendant characteristics – before imposing’ ” a sen-tence of life imprisonment without parole.66 The U.S.

62 Id. 63 Com. v. Cunningham, 81 A.3d 1, 10 (Pa. 2013), quoting Miller, supra note 3. 64 Johnson v. Ponton, No. 3:13-CV-404, 2013 U.S. Dist. LEXIS 149021, 2013 WL 5663068 (E.D. Va. Oct. 16, 2013) (memorandum opinion). 65 Chambers v. State, 831 N.W.2d 311, 328 (Minn. 2013). 66 Id., quoting Miller, supra note 3.

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Court of Appeals for the 11th and 5th Circuits and the Michigan Court of Appeals have all adopted similar reasoning.67 The 11th Circuit placed particu-lar reliance on Penry v. Lynaugh.68 In Penry, the Court held that a new rule “prohibiting a certain category of punishment for a class of defendants because of their status or offense” is retroactive, but only where a class cannot be subjected to the pun-ishment “regardless of the procedures followed.”69 The 11th Circuit reasoned that Miller is not substantive, because it merely altered the range of permissible methods for determining whether a juvenile’s conduct is punishable by life imprisonment without parole and did not completely forbid a jurisdiction from imposing a sentence of life imprisonment without parole.70

But at least four jurisdictions have reasoned that the rule announced in Miller is a substantive one, largely because it fits into the second category of substantive rules announced in Schriro. The Illinois Court of Appeals held in People v. Morfin71 that Miller

67 See In re Morgan, 717 F.3d 1186 (11th Cir. 2013) (en banc); Craig v. Cain, No. 12-30035, 2013 U.S. App. LEXIS 431, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (unpublished opinion); and People v. Carp, 298 Mich. App. 472, 828 N.W.2d 685 (2012). 68 Penry, supra note 42. 69 Id., 492 U.S. at 330. 70 In re Morgan, supra note 67. 71 People v. Morfin, 2012 IL App (1st) 103568, ¶ 56, 981 N.E.2d 1010, 1022, 367 Ill. Dec. 282, 294 (2012).

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was a substantive rule because it “mandates a sen-tencing range broader than that provided by statute for minors convicted of first degree murder.” A con-curring opinion emphasized that the rule was sub-stantive because Miller forbids an entire category of sentence – a mandatory sentence of life imprisonment for juveniles.72 The concurrence also reasoned that a new rule that did not prohibit a certain sentence in every case but prohibited the mandatory imposition of that sentence was a substantive rule and not a procedural one.73 Similarly, in Jones v. Mississippi,74 the Supreme Court of Mississippi reasoned that Miller was a substantive rule because it “explicitly foreclosed imposition of a mandatory sentence of life without parole on juvenile offenders.” It further reasoned that Miller required a substantive change in Mississippi law, because it required legislative modi-fication of the existing law that had no provision for following the dictates of Miller. Very recently, the Supreme Judicial Court of Massachusetts held the Miller rule was substantive because it “forecloses the imposition of a certain category of punishment – mandatory life in prison without the possibility of parole – on a specific class of defendants.”75 And the

72 Morfin, supra note 71 (Sterba, J., specially concurring). 73 Id. 74 Jones v. Mississippi, 122 So. 3d 698, 702 (Miss. 2013). 75 Diatchenko v. District Attorney for Suffolk Dist., 466 Mass. 655, 666, 1 N.E.3d 270 (2013).

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Supreme Court of Iowa in State v. Ragland76 recently held:

From a broad perspective, Miller does man-date a new procedure. Yet, the procedural rule for [an individualized sentencing] hear-ing is the result of a substantive change in the law that prohibits mandatory life-without-parole sentencing. Thus, the case bars states from imposing a certain type of punishment on certain people. . . . “Such rules apply retroactively because they ‘nec-essarily carry a significant risk that a de-fendant’ . . . faces a punishment that the law cannot impose upon him.”

The Iowa Supreme Court also emphasized an article written by constitutional scholar Erwin Chemerinsky in which he stated:

“There is a strong argument that Miller should apply retroactively: It says that it is beyond the authority of the criminal law to impose a mandatory sentence of life without parole. It would be terribly unfair to have in-dividuals imprisoned for life without any chance of parole based on the accident of the timing of the trial.

“. . . .

76 State v. Ragland, 836 N.W.2d 107, 115-16 (Iowa 2013), quoting Schriro, supra note 28.

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“ . . . [T]he Miller Court did more than change procedures; it held that the govern-ment cannot constitutionally impose a pun-ishment. As a substantive change in the law which puts matters outside the scope of the government’s power, the holding should ap-ply retroactively.”77

Courts have also reached differing conclusions as to how the procedural posture of Miller affects the retroactivity analysis. Miller involved two defendants who were before the Court in separate but consolidat-ed cases. Defendant Evan Miller was before the Court after his direct appeal from his criminal conviction was denied.78 But the other defendant, Kuntrell Jackson, was before the Court on collateral review; he sought relief after a state court dismissed his applica-tion for a writ of state habeas corpus.79 In announcing the new rule in Miller, the Court made no distinction between the procedural postures of the two defen-dants. Instead, it simply reversed both of the lower court judgments and remanded the causes “for fur-ther proceedings not inconsistent with this opinion.”80

77 Ragland, supra note 76, 836 N.W.2d at 117, quoting Erwin Chemerinsky, Chemerinsky: Juvenile Life-Without-Parole Case Means Courts Must Look at Mandatory Sentences, A.B.A. J. Law News Now (posted Aug. 8, 2012), http://www.abajournal.com/ news/article/chemerinsky_juvenile_life-without-parole_case_means_ courts_must_look_at_sen/. 78 See Miller, supra note 3. 79 Id. 80 Miller, supra note 3, 132 S. Ct. at 2475.

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At least three jurisdictions have reasoned that the Court’s equal treatment of the two defendants is a factor that must be considered in the retroactivity analysis. In Ragland, the Iowa Supreme Court noted that Jackson’s case was remanded so that Jackson could be given an individualized sentencing hearing and reasoned that “[t]here would have been no reason for the Court to direct such an outcome if it did not view the Miller rule as applying retroactively to cases on collateral review.”81 Ragland also noted that the dissent in Miller suggested the majority’s decision would invalidate other cases across the nation and reasoned that the dissent would not have raised such a concern if the Court did not intend its holding to apply to cases on collateral review. In People v. Williams,82 an Illinois appellate court found it “in-structive” that the Court applied the Miller rule to Jackson when he was before the Court on collateral review. And another Illinois appellate court noted the “relief granted to Jackson in Miller tends to indicate that Miller should apply retroactively on collateral review.”83 Most recently, in Diatchenko v. District Attorney for Suffolk Dist.84 the highest court in Massachusetts reasoned that because the Court

81 Ragland, supra note 76, 836 N.W.2d at 116. 82 People v. Williams, 2012 IL App (1st) 111145, ¶ 54, 982 N.E.2d 181, 197, 367 Ill. Dec. 503, 519 (2012). 83 Morfin, supra note 71, ¶ 57, 981 N.E.2d at 1023, 367 Ill. Dec. at 295. 84 Diatchenko, supra note 75, 466 Mass. at 667, 1 N.E.3d 270.

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applied the rule to Jackson, “evenhanded justice requires that it be applied retroactively to all who are similarly situated.”

Other jurisdictions, however, conclude the Court’s treatment of Jackson is not a relevant factor in the retroactivity analysis. In Com. v. Cunningham,85 the Pennsylvania Supreme Court noted that it was not clear the retroactivity issue was before the Court with respect to Jackson and that in the absence of a “spe-cific, principled retroactivity analysis” by the Court, it would not deem the Court to have held the Miller rule applied retroactively just because the Court applied it to Jackson. Similarly, in People v. Carp,86 the Michigan Court of Appeals reasoned that the “mere fact that the Court remanded Jackson for resentenc-ing does not constitute a ruling or determination on retroactivity.” Carp further reasoned that the issue of retroactivity was not raised as to Jackson and that thus, the Court had no reason to address it.

A federal district court in Virginia has taken a slightly different approach. In Johnson v. Ponton,87 the court reasoned that although the U.S. Supreme Court stated in Teague v. Lane88 that the retroactivity analysis is a threshold question and a prerequisite for

85 Cunningham, supra note 63, 81 A.3d at 9. 86 Carp, supra note 67, 298 Mich. App. at 518, 828 N.W.2d at 712. 87 Johnson, supra note 64. 88 Teague, supra note 20.

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announcement of a new constitutional rule, it has forgone this analysis in at least one recent case. Specifically, in Padilla v. Kentucky,89 a petitioner brought a collateral challenge to his conviction. In deciding Padilla, the Court announced a new consti-tutional rule and applied it to the defendant before it, but did not engage in a retroactivity analysis. Later, in Chaidez v. U.S.,90 the Court expressly held that the rule it announced in Padilla did not apply retroac-tively to other cases on collateral review. Based on the Court’s actions in Padilla and Chaidez, the court in Johnson reasoned that the Court’s application of the Miller rule to Jackson was not dispositive of its intent to apply the Miller rule to all cases on collateral review.

(d) Resolution

Under the Teague/Schriro retroactivity analysis, the distinction between substance and procedure is important. But how the rule announced in Miller should be categorized is difficult, because it does not neatly fall into the existing definitions of either a procedural rule or a substantive rule.

As other courts have noted, the Miller rule cer-tainly contains a procedural component, because it

89 Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). 90 Chaidez v. U.S., ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013).

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specifically requires that a sentencer follow a certain process before imposing the sentence of life impris-onment on a juvenile.91 And unlike the holdings in Graham v. Florida92 and Roper v. Simmons,93 the Miller rule does not categorically bar a specific pun-ishment; a State may still constitutionally sentence a juvenile to life imprisonment without parole under Miller.

But at the same time, the Miller rule includes a substantive component. Miller did not simply change what entity considered the same facts.94 And Miller did not simply announce a rule that was designed to enhance accuracy in sentencing.95 Instead, Miller held that a sentencer must consider specific, individual-ized factors before handing down a sentence of life imprisonment without parole for a juvenile. Effective-ly, then, Miller required a sentencer of a juvenile to consider new facts, i.e., mitigation evidence, before imposing a life imprisonment sentence with no possi-bility of parole. In our view, this approaches what the Court itself held in Schriro would amount to a new substantive rule: The Court made a certain fact (consideration of mitigating evidence) essential to imposition of a sentence of life imprisonment without

91 See, In re Morgan, supra note 67; Tate, supra note 61; Chambers, supra note 65; Cunningham, supra note 63. 92 Graham, supra note 2. 93 Roper, supra note 13. 94 Compare Ring, supra note 29. 95 Compare Caldwell, supra note 59.

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parole.96 In other words, it imposed a new require-ment as to what a sentencer must consider in order to constitutionally impose life imprisonment without parole on a juvenile.

And Miller itself recognized that when mitigating evidence is considered, a sentence of life imprison-ment without parole for a juvenile should be rare. This is consistent with the underlying logic of Miller, based on Graham, that “ ‘[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’ ”97 In essence, Miller “amounts to something close to a de facto substantive holding,”98 because it sets forth the general rule that life imprisonment without parole should not be imposed upon a juvenile except in the rarest of cases where that juvenile cannot be distin-guished from an adult based on diminished capacity or culpability.

The substantive aspect of the Miller rule is also evident when considered in light of the effect of Miller on existing Nebraska law. In response to Miller, the Nebraska Legislature amended the sentencing laws

96 Schriro, supra note 28. 97 Graham, supra note 2, 560 U.S. at 73, quoting Roper, supra note 13. 98 The Supreme Court, 2011 Term – Leading Cases, 126 Harv. L. Rev. 276, 286 (2012).

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for juveniles convicted of first degree murder.99 The amendments changed the possible penalty for a juvenile convicted of first degree murder from a mandatory sentence of life imprisonment to a “maxi-mum sentence of not greater than life imprisonment and a minimum sentence of not less than forty years’ imprisonment.”100 The Legislature also mandated that in determining the sentence for a juvenile convicted of first degree murder, the sentencing judge “shall consider mitigating factors which led to the commis-sion of the offense.”101 A juvenile may submit any mitigating factors to the sentencer, including, but not limited to, age at the time of the offense, degree of impetuosity, family and community environment, ability to appreciate the risks and consequences of the conduct, intellectual capacity, and the results of a mental health evaluation.102 We view these as sub-stantive changes to Nebraska law and requirements that sentencers consider new facts prior to sentencing a juvenile convicted of first degree murder. Most specifically, the fact that Miller required Nebraska to change its substantive punishment for the crime of first degree murder when committed by a juvenile from a mandatory sentence of life imprisonment to a sentence of 40 years’ to life imprisonment

99 2013 Neb. Laws, L.B. 44 (codified at Neb. Rev. Stat. § 28-105.02 (Supp. 2013)). 100 § 28-105.02(1). 101 § 28-105.02(2). 102 Id.

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demonstrates the rule announced in Miller is a substantive change in the law.

Moreover, the entire rationale of Miller is that when a sentencing scheme fails to give a sentencer a choice between life imprisonment without parole and something lesser, the scheme is necessarily cruel and unusual. Here, it is undisputed that Mantich’s sentencer was denied that choice, and it is the ab-sence of that choice that makes the Miller rule more substantive than procedural. Further, we agree that the Miller rule is entirely substantive when viewed as Massachusetts, Mississippi, and Illinois have – as a categorical ban on the imposition of a mandatory sentence of life imprisonment without parole for juveniles.103

We also find it noteworthy that the Court applied the rule announced in Miller to Jackson, who was before the Court on collateral review. Years ago, the Court stated that it would not announce or apply a new constitutional rule in a case before it on collat-eral review unless that rule would apply to all de-fendants on collateral review.104 The Court specifically adopted this policy in order to ensure that justice is administered evenhandedly.105 Although we recognize that the Court has strayed from this policy on one

103 See, Diatchenko, supra note 75; Jones, supra note 74; Morfin, supra note 71. 104 Penry, supra note 42; Teague, supra note 20. 105 Id.

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recent occasion,106 we are not inclined to refuse to apply the rule announced in Miller to a defendant before us on collateral review when the Court has already applied the rule to a defendant before it on collateral review. Evenhanded administration of justice is carried out only if Mantich, like Jackson, is entitled to the benefit of the new rule announced in Miller.107 As noted by the Supreme Court of Iowa, any other result would be “ ‘terribly unfair.’ ”108

Because the rule announced in Miller is more substantive than procedural and because the Court has already applied that rule to a case on collateral review, we conclude that the rule announced in Miller applies retroactively to Mantich. Mantich’s life im-prisonment sentence must be vacated, and the cause remanded for resentencing under § 28-105.02.

2. OTHER CLAIMS

In Mantich’s original appeal, he argued that his sentence of life imprisonment without parole was categorically invalid under Graham v. Florida.109 Graham held that a juvenile convicted of a nonhomicide offense cannot be sentenced to life imprisonment without parole. Mantich invites us to

106 See Padilla, supra note 89. 107 See Diatchenko, supra note 75. 108 Ragland, supra note 76, 836 N.W.2d at 117, quoting Chemerinsky, supra note 77. 109 Graham, supra note 2.

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extend this holding to a juvenile convicted of felony murder.

Because we find Mantich is entitled to be resen-tenced under the dictates of Miller, we do not reach this argument in this appeal. If Mantich, on remand, is resentenced to life imprisonment with no minimum term which permits parole eligibility, he may raise the Graham argument in an appeal from that sen-tence.

Likewise, in view of our disposition, we need not reach Mantich’s claim that his counsel was ineffective in failing to assert an Eighth Amendment challenge at his original sentencing and on direct appeal.

V. CONCLUSION

The rule announced in Miller applies retroactive-ly to Mantich. We remand the cause with directions to grant post-conviction relief by vacating his life imprisonment sentence and resentencing him pursu-ant to § 28-105.02.110

SENTENCE VACATED, AND CAUSE REMANDED FOR RESEN-

TENCING.

110 See Castaneda, supra note 19.

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DISSENT BY: CASSEL

DISSENT

CASSEL, J., dissenting.

I respectfully dissent. First, I believe the rule from Miller v. Alabama1 is a procedural rule that should not be applied retroactively on collateral review. Second, I would find Mantich’s other claimed errors to be without merit. Thus, I would affirm the decision of the district court.

RETROACTIVITY OF MILLER V. ALABAMA

As the majority observed, the rule announced in Miller does not fall conveniently into the existing definitions of either a procedural rule or a substan-tive rule. But I believe the better approach would be to join the majority of jurisdictions that have ruled on this issue and conclude that the rule announced in Miller is a procedural one.2

1 Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). 2 See, In re Morgan, 717 F.3d 1186 (11th Cir. 2013) (en banc); Holland v. Hobbs, No. 5:12CV00463-SWW-JJV, 2013 U.S. Dist. LEXIS 171492, 2013 WL 6332731 (E.D. Ark. Dec. 5, 2013); Johnson v. Ponton, No. 3:13-CV-404, 2013 U.S. Dist. LEXIS 149021, 2013 WL 5663068 (E.D. Va. Oct. 16, 2013) (memoran-dum opinion); Geter v. State, 115 So. 3d 375 (Fla. App. 2012); State v. Tate, No. 2012-OK-2763, 2013 La. LEXIS 2376, 2013 WL 5912118 (La. Nov. 5, 2013); People v. Carp, 298 Mich. App. 472, 828 N.W.2d 685 (2012); Chambers v. State, 831 N.W.2d 311 (Minn. 2013); Com. v. Cunningham, 81 A.3d 1 (Pa. 2013); Craig

(Continued on following page)

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Unlike the rules announced in Graham v. Florida3 and Roper v. Simmons,4 Miller did not categorically bar a specific punishment. The Miller Court specifi-cally noted that its decision “mandate[d] only that a sentencer follow a certain process – considering an offender’s youth and attendant characteristics – before imposing a particular penalty.”5 Miller simply does not fall into the narrow category of a substantive rule, because no juvenile sentenced to life imprison-ment without parole in Nebraska “faces a punish-ment that the law cannot impose upon him.”6 Although the process by which a juvenile may be sentenced to life imprisonment without parole now changes based upon Miller, the ultimate sentence of life imprisonment without parole for a juvenile is still a legitimate sentence. The U.S. Supreme Court has never indicated that anything less than a full categor-ical ban on a sentence may be a new substantive rule, and in my view, we should decline to do so in the first instance.

v. Cain, No. 12-30035, 2013 U.S. App. LEXIS 431, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (unpublished opinion). 3 Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). 4 Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). 5 Miller, supra note 1, 132 S. Ct. at 2471. 6 Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004).

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I am not persuaded that the U.S. Supreme Court established a precedent of retroactive application of the Miller rule simply by applying the rule to a defendant before it on collateral review. A new rule is not made retroactive to cases on collateral review unless the Court holds it to be retroactive.7 And a state can waive the Teague v. Lane8 retroactivity bar by not raising it.9 The Court likely did not address the retroactivity issue in Miller because the State of Arkansas did not argue that any new rule announced would not apply to Jackson, who was before the Court on collateral review. I do not believe that we should interpret silence as an affirmative holding that the Miller rule is to apply retroactively to defendants on collateral review. Further, I find it persuasive that the Court has recently demonstrated in Padilla v. Kentucky10 and Chaidez v. U.S.11 that its announce-ment of a new constitutional rule in a case before it on collateral review is not a determination of whether that rule should apply to all cases on collateral re-view.

7 Tyler v. Cain, 533 U.S. 656, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001). 8 Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). 9 Schiro v. Farley, 510 U.S. 222, 114 S. Ct. 783, 127 L. Ed. 2d 47 (1994). 10 Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). 11 Chaidez v. U.S., ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013).

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In my view, the rule announced in Miller is not a “ ‘ “watershed rule[ ] of criminal procedure” implicat-ing the fundamental fairness and accuracy of the criminal proceeding.’ ”12 To qualify as a watershed rule, a new rule must both be necessary to prevent an impermissibly large risk of an inaccurate conviction and alter our understanding of the bedrock procedur-al principles essential to the fairness of a proceed-ing.13 The Court has repeatedly emphasized that the watershed exception is extremely narrow and, since Teague, has yet to find a new rule that fits within the exception.14 The only case that has ever satisfied this high threshold is Gideon v. Wainwright,15 in which the Court held that counsel must be appointed for any indigent defendant charged with a felony.

The rule announced in Miller relates only to the sentencing stage of a criminal proceeding and, thus, cannot be said to be necessary to prevent an imper-missibly large risk of an inaccurate conviction. In addition, it is not a rule announcing a “previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding.”16 While the rule announced in Miller was important, it did not

12 Schriro, supra note 6, 542 U.S. at 355. 13 Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173, 167 L. Ed. 2d 1 (2007). 14 Id. (citing cases). 15 Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). 16 Whorton, supra note 13, 549 U.S. at 421.

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effect a sweeping change comparable to Gideon. These reasons further support not applying the rule announced in Miller retroactively to Mantich on collateral review.

Our judicial process favors the finality of judg-ments. As noted by the majority, Mantich’s life im-prisonment sentence was imposed and became final long before the decision in Miller was announced. There is an important interest in the finality of judgments that must be respected. I agree with the assessment of another court that “applying Miller retroactively ‘would undermine the perceived and actual finality of criminal judgments and would consume immense judicial resources without any corresponding benefit to the accuracy or reliability of the [underlying criminal case].’ ”17

At least to a certain degree, some of the minority of courts addressing whether the Miller decision was substantive or procedural have relied upon percep-tions of fairness between those whose direct appeals were still pending and those whose cases had already been finally determined. This is a dangerous expan-sion of the power of judges, because it places no principled limit upon the scope of judicial power. While the distinction between procedural and sub-stantive may be difficult to apply, it affords a princi-pled basis for decision. If a judge allows his or her perceptions of fairness to intrude, the decision ceases

17 Geter, supra note 2, 115 So. 3d at 383-84.

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to be an application of law and becomes an applica-tion of the judge’s personal biases and preferences. In my view, the existing legal framework drives the answer to the question before this court and dictates that the change is procedural. As a judge, my role goes no further.

OTHER CLAIMS

GRAHAM V. FLORIDA ARGUMENT

In his original appeal, Mantich argued that his sentence of life imprisonment without parole was categorically invalid under Graham v. Florida.18 Graham held that a juvenile convicted of a nonhomicide offense cannot be sentenced to life imprisonment without parole. Mantich asked us to extend this holding to a juvenile convicted of felony murder. I would find that Mantich’s postconviction claim based on Graham is not procedurally barred.

A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased.19 Graham was decided in 2010, long after this court affirmed Mantich’s conviction and life imprisonment sentence for first degree murder. Graham was the first case in which the U.S. Supreme Court imposed a categorical

18 Graham, supra note 3. 19 State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).

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bar on life imprisonment sentences for a specific class of offenders. Mantich could not have asserted his Graham claim at trial or on direct appeal, because the Eighth Amendment jurisprudence at that time did not support a categorical bar on life imprisonment sentences.20 Therefore, it is not procedurally barred and its merits can be addressed.

The issue decided by the U.S. Supreme Court in Graham was “whether the Constitution permits a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime.”21 The de-fendant was sentenced to life imprisonment, which carried no possibility of release except through execu-tive clemency.22 The Court held, as a matter of first impression, that “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.”23 The Court specifi-cally limited its holding to “only those juvenile of-fenders sentenced to life without parole solely for a nonhomicide offense.”24 The Court distinguished homicide cases, noting:

20 See State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000). 21 Graham, supra note 3, 560 U.S. at 52-53. 22 Graham, supra note 3. 23 Id., 560 U.S. at 74. 24 Id., 560 U.S. at 63.

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There is a line “between homicide and other serious violent offenses against the individu-al.” . . . Serious non-homicide crimes “may be devastating in their harm . . . but ‘in terms of moral depravity and of the injury to the per-son and to the public,’ . . . they cannot be compared to murder in their ‘severity and irrevocability.’ ” . . . This is because “[l]ife is over for the victim of the murderer,” but for the victim of even a very serious nonhomicide crime, “life . . . is not over and normally is not beyond repair.” . . . Although an offense like robbery or rape is “a serious crime deserving serious punishment,” . . . those crimes differ from homicide crimes in a moral sense.

It follows that, when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished mor-al culpability. The age of the offender and the nature of the crime each bear on the analy-sis.25

We have considered the scope of Graham in one prior case. State v. Golka26 involved a postconviction appeal by an offender who had been sentenced to two consecutive terms of life imprisonment for two first degree murders committed when he was 17 years old. His postconviction motion alleged that the sentences constituted cruel and unusual punishment

25 Id., 560 U.S. at 69 (citations omitted). 26 State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011).

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in violation of the 8th and 14th Amendments to the U.S. Constitution and article I, § 9, of the Nebraska Constitution. That claim was rejected by the district court, and Graham was decided during the pendency of the appeal. In affirming the denial of postconviction relief, we agreed with two other state courts which had held that Graham does not preclude life imprisonment sentences for juvenile offenders convicted of murder.27

Mantich argues that his crime must be consid-ered a “ ‘non-homicide’ ” offense under Graham be-cause there was no finding at trial or sentencing that he killed or intended to kill Thompson.28 He argues that he was at most a “minor participant” in the murder.29 He bases this argument primarily upon Enmund v. Florida30 and Tison v. Arizona,31 both of which were appeals from death sentences. In Enmund, the U.S. Supreme Court held that the Eighth Amendment did not permit imposing “the death penalty on [a person] who aids and abets a felony in the course of which a murder is committed

27 Id. (citing Jackson v. Norris, 2011 Ark. 49, 378 S.W.3d 103 (2011), reversed, Miller, supra note 1; State v. Andrews, 329 S.W.3d 369 (Mo. 2010)). 28 Brief for appellant at 22. 29 Id. at 21. 30 Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). 31 Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987).

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by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed.”32 In Tison, the Court held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability require-ment” for imposition of the death penalty.33 Both Enmund and Tison addressed the issue of when a murderer’s conduct was sufficiently culpable to warrant imposition of the maximum penalty of death. Although the Court in Graham cited Enmund in support of its reasoning with respect to relative culpability, I do not interpret that citation as permit-ting a homicide to be considered a “nonhomicide” offense for purposes of sentencing, as Mantich urges.

Admittedly, the reasoning in Miller v. Alabama34 offers some support for Mantich’s argument. As noted, in Miller, the Court reasoned that because individual-ized sentencing was required for adults in cases involving imposition of the death penalty, the greatest possible penalty imposed upon an adult, individual-ized sentencing was also required for juveniles in cases involving imposition of the penalty of life im-prisonment without parole, the greatest possible penalty imposed upon a juvenile. Mantich argues that because the Court equated death for adults with life

32 Enmund, supra note 30, 458 U.S. at 797. 33 Tison, supra note 31, 481 U.S. at 158. 34 Miller, supra note 1.

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imprisonment for juveniles in one context, all of the Court’s previous requirements for constitutional imposition of the death penalty on adults now apply to constitutional imposition of life imprisonment without parole on juveniles. Particularly, he contends that the Enmund/Tison rationale is now directly applicable to him and that he cannot be sentenced to the greatest possible punishment available because there has been no showing that he killed or intended to kill.

The record contains some evidence concerning intent to kill. During Mantich’s sentencing hearing, the court addressed the question of who pulled the trigger and stated:

You admitted on two separate occasions sep-arated by a month that you in fact fired the shot which killed . . . Thompson.

The admission you made directly after the incident and particularly coupled with the admission to law enforcement personnel a month later with thoughts, feelings, and cor-roboration which would go along with the murder of someone certainly strongly sug-gests that you in fact pulled the trigger. The murder of . . . Thompson at pointblank range by putting a gun against his head and firing it is brutal beyond description and cold. . . .

You murdered a blameless person . . . Mantich. One who had every right and ex-pectation to lead his life without being

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subjected to a mindless, violent death carried out by you.

And on direct appeal, with regard to the insuffi-cient evidence claim, we wrote:

The facts taken in the light most favorable to the State are such that a finder of fact could conclude beyond a reasonable doubt that Mantich committed murder while aiding and abetting in the kidnapping and robbery of Thompson and used a firearm to commit a felony. There is sufficient evidence to demon-strate that Mantich aided and abetted the kidnapping and robbery perpetrated against Thompson. When Eona and Brunzo left the party and returned with the stolen van, Mantich joined them over the strong objec-tions and physical restraint of his girl friend. Mantich testified that he heard Eona and Brunzo tell Thompson they were going to kill him, and Mantich watched as Eona and Brunzo repeatedly jabbed Thompson in the head with the barrels of their guns. Mantich’s statement to police was sufficient to establish that he was handed a gun, placed the gun against the back of Thomp-son’s head, and pulled the trigger.

Even if the jury was uncertain as to whether Mantich actually shot Thompson, the evi-dence supports the jury’s finding that Mantich aided and abetted in the kidnap-ping and robbery of Thompson. It was un-disputed that Thompson was killed by someone in the van while the group was

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kidnapping, robbing, and terrorizing him. The group forcibly restrained Thompson with the express intent of robbing and terrorizing him. The evidence shows that Mantich en-couraged these activities and participated in the verbal terrorization of Thompson. This evidence is sufficient to convict Mantich of felony murder and use of a weapon to com-mit a felony.35

Even if the record did not demonstrate that Mantich either killed or intended to kill, I would not extend the Court’s holding in Graham to a juvenile convicted of felony murder. At the time Mantich committed his crime, the sentence in Nebraska for first degree murder was either mandatory life impris-onment or death.36 Graham held that the Eighth Amendment prohibited sentencing a juvenile to the maximum penalty of life imprisonment without parole for the nonhomicide offense which the juvenile committed. That is a far different issue than whether the Eighth Amendment prohibits imposing the mini-mum sentence of life imprisonment without parole on a juvenile who committed first degree murder. As the Court noted in Graham, nonhomicide crimes “differ from homicide crimes in a moral sense.”37 I would urge that we join the other jurisdictions which have

35 State v. Mantich, 249 Neb. 311, 328-29, 543 N.W.2d 181, 193-94 (1996). 36 See Neb. Rev. Stat. §§ 28-105 (Reissue 1989) and 28-303 (Reissue 1995). 37 Graham, supra note 3, 560 U.S. at 69.

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held that Graham has no application to a juvenile convicted of a homicide offense under a felony murder theory.38

UNCONSTITUTIONALLY DISPROPORTIONATE CLAIM

Unlike Mantich’s argument based on Graham, his claim that his life imprisonment sentence was unconstitutionally disproportionate to his crime could have been raised at the time of sentencing and on direct appeal. The constitutional principle of propor-tionality was well established at the time of Mantich’s first degree murder conviction.39 Because the issue was not raised at sentencing or on direct appeal, it is procedurally barred in this postconviction proceeding. However, I will address the merits of the issue in the context of Mantich’s claim that his trial and appellate counsel was ineffective in failing to raise it.

INEFFECTIVENESS OF TRIAL AND APPELLATE COUNSEL

When a defendant was represented both at trial and on direct appeal by the same lawyers, generally speaking, the defendant’s first opportunity to assert an ineffective assistance of trial counsel claim is in a

38 See, Arrington v. State, 113 So. 3d 20 (Fla. App. 2012); Jackson, supra note 27; Bell v. State, 2011 Ark. 379, 2011 WL 4396975 (2011) (unpublished opinion). 39 See, Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983); Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910).

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motion for postconviction relief.40 That is the circum-stance here. The record shows that Mantich was represented at trial and on direct appeal by the same attorney. He alleged in his postconviction motion that his counsel was ineffective in failing to argue at sentencing and on direct appeal that a life imprison-ment sentence would constitute cruel and unusual punishment.

In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland v. Washington,41 to show that coun-sel’s performance was deficient and that counsel’s deficient performance prejudiced the defense.42 In order to show prejudice, the defendant must demon-strate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different.43 The two prongs of this test, deficient performance and prejudice, may be addressed in either order.44 The entire ineffectiveness analysis is viewed with the strong presumption that counsel’s actions were reasonable.45 Defense counsel is not ineffective for failing to raise an argument that

40 State v. McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004). 41 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 42 State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010). 43 Id. 44 Id. 45 State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008).

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has no merit.46 Accordingly, I will examine the merit of Mantich’s claim that his life imprisonment sen-tence is unconstitutionally disproportionate to his crime.

The Eighth Amendment “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.”47 The U.S. Supreme Court has characterized this as a “ ‘narrow proportionality principle’ ”48 which “ ‘does not require strict proportionality between crime and sentence,’ ”49 but, rather, “ ‘forbids only extreme sentences that are “grossly disproportionate” to the crime.’ ”50 The Court has identified objective criteria which should guide an Eighth Amendment proportionality analysis, includ-ing “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the

46 State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010). 47 Solem, supra note 39, 463 U.S. at 284. 48 Ewing v. California, 538 U.S. 11, 20, 24, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003), quoting Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment). See, also, Solem, supra note 39. 49 Ewing, supra note 48, 538 U.S. at 23, quoting Harmelin, supra note 48 (Kennedy, J., concurring in part and concurring in judgment). 50 Id.

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sentences imposed for commission of the same crime in other jurisdictions.”51

But “intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.”52 Courts must give “ ‘sub-stantial deference to the broad authority that legisla-tures necessarily possess in determining the types and limits of punishments for crimes,’ ” bearing in mind that the Eighth Amendment “does not mandate adoption of any one penological theory” and “marked divergences both in underlying theories of sentenc-ing and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure.”53 The “culpability of the offender” is also a factor in the analysis.54 In its most recent application of these principles to a sentence of imprisonment, the U.S. Supreme Court in Ewing v. California55 upheld a sentence of 25 years’ to life imprisonment for grand theft under California’s “three strikes law,” concluding that it was not “ ‘the rare case in which a

51 Solem, supra note 39, 463 U.S. at 292. 52 Harmelin, supra note 48, 501 U.S. at 1005 (Kennedy, J., concurring in part and concurring in judgment). See, also, Ewing, supra note 48. 53 Harmelin, supra note 48, 501 U.S. at 999 (Kennedy, J., concurring in part and concurring in judgment). 54 Solem, supra note 39, 463 U.S. at 292. 55 Ewing, supra note 48.

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threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.’ ”56

The same conclusion is inescapable here. First degree murder is the most serious criminal offense defined by Nebraska law. “[I]n terms of moral deprav-ity and of the injury to the person and to the public,” other serious crimes do “not compare with murder.”57 Mantich received the minimum sentence which can be given to one convicted of first degree murder. Although he seeks to minimize his personal involve-ment in the events which led to the death of Thomp-son, we noted on direct appeal that “Mantich’s statement to police was sufficient to establish that he was handed a gun, placed the gun against the back of Thompson’s head, and pulled the trigger.”58 We fur-ther noted that the group robbed, terrorized, and forcibly restrained Thompson and that “Mantich encouraged these activities and participated in the verbal terrorization.”59

Mantich cites several state court decisions from other jurisdictions in support of his Eighth Amend-ment argument. But those cases are either distin-guishable on the facts or otherwise unpersuasive.

56 Id., 538 U.S. at 30, quoting Harmelin, supra note 48 (Kennedy, J., concurring in part and concurring in judgment). 57 Coker v. Georgia, 433 U.S. 584, 598, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977). See, also, Graham, supra note 3. 58 Mantich, supra note 35, 249 Neb. at 328, 543 N.W.2d at 194. 59 Id. at 329, 543 N.W.2d at 194.

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Considering the gravity of the offense and all of the relevant facts and circumstances, notwithstanding Mantich’s youth, there is no basis for a “threshold inference”60 that his sentence was grossly dispropor-tionate to his crime. Because Mantich’s Eighth Amendment claim is without merit under either alternative formulation, his counsel was not ineffective in not asserting it at sentencing or on direct appeal.

CONCLUSION

To summarize, in my view, the rule announced in Miller is procedural and does not apply to Mantich on collateral review. I would find that Graham has no application to Mantich’s sentence of life imprison-ment for first degree felony murder, a homicide, and that Mantich’s alternative claim that his sentence was grossly disproportionate to his crime is procedur-ally barred. Because these claims are without merit, Mantich’s trial and appellate counsel was not ineffec-tive in failing to assert them. And because the files and records conclusively show that Mantich’s motion for postconviction relief is without merit, the district court did not err in denying the requested relief without conducting an evidentiary hearing. I would affirm the decision of the district court.

HEAVICAN, C.J., joins in this dissent.

60 See Graham, supra note 3, 560 U.S. at 93 (Roberts, J., concurring in judgment).

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DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA

THE STATE OF NEBRASKA,

Plaintiff,

vs.

DOUGLAS MANTICH,

Defendant.

) ) ) ) ) ) )

DOC. 134 NO. 137

ORDER

(Filed Mar. 17, 2011)

On the 15th day of December, 2010 State of Nebraska’s motion to dismiss defendant’s amended motion for post conviction relief was called for hear-ing. The State of Nebraska was represented by Katie L. Benson. The defendant was represented by Adam J. Sipple. Arguments were presented and the court now finds and orders as follows:

By leave of court the defendant filed an amended motion for post conviction relief and request for evidentiary hearing on August 31, 2010. In reply to the expanded request for post conviction relief, the State filed a motion to dismiss.

The defendant asserts that he is a prisoner in the custody of the Nebraska Department of Correctional Services serving a sentence of life imprisonment pursuant to a conviction for felony murder as man-dated by Neb. Rev. Stat. §28-302(2) (Reissue 1989). He asserts a denial or infringement of his constitu-tional rights at the time of sentencing and on direct appeal which he asserts should cause the judg- ment and sentence to be void or voidable under the

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Constitution of the State of Nebraska and the Consti-tution of the United States of America.

On October 28, 1994 the court sentenced the defendant, then 17 years of age, to life imprisonment for first degree murder during the perpetration of a robbery or kidnapping, The court was precluded from imposing a lesser sentence as shown in §28-303(2). The defendant is not eligible for parole on the sen-tence imposed unless and until the Board of Pardons commutes the sentence to a term of years. Poindexter v. Houston, 276 Neb. 863 (2008).

The defendant asserts that he received ineffec-tive assistance of counsel due to the lack of objection by his attorney at the time of sentence that the imposition of a life sentence would constitute cruel and unusual punishment in violation of the 8th and 14th Amendments of the United States Constitution and Article I, Section IX and XV of the Constitution of the State of Nebraska. The defendant was represent-ed by the same attorney on his direct appeal and on appeal there was no assertion of a violation of de-fendant’s constitutional rights pursuant to the 8th and 14th Amendments of the United States Constitu-tion or Article I, Section IX and XV of the Constitu-tion of the State of Nebraska.

The defendant asserts that he is a prisoner coming within the ambit of Graham v Florida, 130 S.Ct. 2011 (May 17, 2010). In Graham the defendant was sentenced to a term of probation for the commis-sion of an armed robbery. Six months into his probation he was arrested for an armed home invasion robbery

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and admitted to committing several other robberies. The court revoked his probation and sentenced him to a period of life imprisonment. The United States Supreme Court held that the United States Constitu-tion prohibits the imposition of a sentence of life without parole on a juvenile offender who did not commit homicide. If there is such an imposition of sentence the State must provide him or her with some realistic opportunity to obtain release before the end of his term.

The State of Nebraska argues that Graham is not controlling in this case because defendant’s conviction was a homicide conviction, that is, felony murder. The Nebraska Supreme Court in referencing the trial testimony on defendant’s direct appeal noted

Mantich’s statement to police was sufficient to establish that he was handed a gun, placed the gun against the back of Thomp-son’s head, and pulled the trigger. Even if the jury was uncertain as to whether Mantich actually shot Thompson, the evidence sup-ports the jury’s finding that Mantich aided and abetted in the kidnapping and robbery of Thompson. State v. Mantich, 249 Neb. 311, 328, 329 (1996)

The Eighth Amendment issue is whether a juvenile can be sentenced to a term of life imprison-ment for his or her role in a felony murder. At the time of defendant’s sentence that was certainly the case. As the Nebraska Supreme Court stated in State v. McGee, 280 Neb. 558, 563 (2010), “In order to establish a right to post conviction relief based on a

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claim of ineffective assistance of counsel, the defen-dant has the burden, in accordance with Strickland v. Washington, to show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defendant in his or her case.” Defen-dant’s counsel was not ineffective for not asserting that the law did not support such a sentence. Defen-dant’s sentence has not been categorically barred by the United States Supreme Court or the Nebraska Supreme Court.

There being no genuine factual issue to be de-termined, the defendant is not entitled to an eviden-tiary hearing. The files and records of the case show that the defendant is not entitled to relief under the issues presented to the court, and accordingly de-fendant’s request for an evidentiary hearing is de-nied.

Defendant’s motion for post conviction relief is denied in its entirety.

AND IT IS SO ORDERED.

Dated: March 16, 2011

BY THE COURT:

/s/ J Patrick Mullen J. Patrick Mullen

District Judge

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State of Nebraska, Appellee, v. Douglas M. Mantich, Appellant.

No. S-94-1091.

SUPREME COURT OF NEBRASKA

249 Neb. 311; 543 N.W.2d 181; 1996 Neb. LEXIS 18

February 9, 1996, Filed

COUNSEL: Christopher E. Kelly, of Fellman, Moylan, Natvig, Steichen & Kelly, for appellant.

Don Stenberg, Attorney General, and Mark D. Starr, for appellee.

JUDGES: Caporale, Fahrnbruch, Lanphier, Wright, Connolly, and Gerrard, JJ. White, C.J., participating on briefs.

OPINION BY: WRIGHT

OPINION

WRIGHT, J.

Douglas M. Mantich appeals his convictions for first degree murder and use of a firearm to commit a felony.

SCOPE OF REVIEW

On review, a criminal conviction must be sus-tained if the evidence, viewed and construed most favorably to the State, is sufficient to support the

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conviction. In determining whether the evidence is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts in the evi-dence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented to the jury, which are within a jury’s province for dispo-sition. State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995).

Abuse of discretion is the standard of review applicable to an appeal from a district court’s denial of a motion to transfer a pending criminal proceeding to the juvenile court. State v. Nevels, 235 Neb. 39, 453 N.W.2d 579 (1990).

A trial court’s ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994).

In determining whether a trial court’s findings on a motion to suppress are clearly erroneous, the re-viewing court recognizes the trial court as the trier of fact and takes into consideration that the trial court has observed the witnesses testifying regarding the motion. See id.

FACTS

On December 5, 1993, a group of people gathered at the home of Angelita DeLeon ostensibly to mourn the death of Michael Campbell, a member of an Omaha street gang known as the Lomas. Members of

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the Lomas attending the party included Mantich, Gary Brunzo, Daniel Eona, Juan Carrera, and Angel Huerta. Mantich testified that there was alcohol and marijuana at the party and that he drank between 5 and 10 beers and smoked portions of 2 marijuana cigarettes between 10 p.m. and 1 a.m.

During the party, there was discussion among the gang members about seeking revenge for Camp-bell’s death. In his tape-recorded statement, Mantich said that Carrera and Eona were discussing stealing a car and doing a drive-by shooting at Ignacio Palma’s grandmother’s house. Palma was a member of a rival gang. When Carrera suggested stealing a car, Eona waved a gun and stated, I ain’t talkin’ about stealin’ a car, I’m talkin’ about jackin’ somebody putting a gun to their head. Huerta also told Mantich that he wanted to do a drive-by shooting of Palma’s grand-mother’s house, and Mantich saw a gun in Huerta’s possession at the party.

As people were leaving the party, Diane Barrientos, Mantich’s girl friend, offered to give Carrera and Eona a ride home, but they refused. Eona told Barrientos that he intended to get a “G-ride” home. Barrientos understood this to mean that Eona intended to steal a car. Eona and Brunzo then walked toward Dodge Street, and Mantich waited in the street in front of DeLeon’s house for them to return.

Eona and Brunzo returned 10 or 15 minutes later in a maroon 1989 Dodge Caravan owned by Michael

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Blankenau. Blankenau had previously loaned the van to Henry Thompson, who worked for Blankenau’s cleaning service. Eona was driving, and Brunzo was in the passenger’s seat. Carrera and Huerta got into the van, and Mantich attempted to join them. Barrientos testified that she pled with Mantich to go home with her and attempted to “hang” onto Mantich in order to prevent him from going, but he eventually got into the van. Mantich testified that he knew when he entered the van that it was probably stolen. After Mantich entered the van, Eona drove toward 33d and Farnam Streets.

Mantich testified that when he entered the van he did not know that Thompson was in the van. Mantich stated that he learned Thompson was in the van soon thereafter. Thompson was seated on the floor of the van between the driver’s and the passen-ger’s bucket seats; he was facing the front of the van with his hands behind his head.

In his tape-recorded statement, Mantich said that after he entered the van, the group began taunt-ing Thompson, demanding money, and saying “We’re gonna shoot you” and “You’re gonna die.” Mantich stated that Thompson was crying and pleading with them not to shoot him. At trial, Mantich said that he and the other gang members were chanting things like “Cuz” and “Blood” in order to make Thompson think they were members of the Bloods, another Omaha street gang. Brunzo and Eona repeatedly jabbed the barrels of their guns into the side and back of Thomp-son’s head. Prior to the shooting, Eona and Brunzo searched Thompson’s pockets and took his wallet.

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Mantich gave conflicting accounts of what subse-quently occurred inside the van. In the tape-recorded statement given to Omaha police on January 5, 1994, Mantich recalled that while the group was taunting Thompson, Brunzo handed Carrera a gun, and Carre-ra handed the gun to Mantich. Members of the gang then began to urge Mantich to shoot Thompson. Mantich stated that at first he did not want to shoot Thompson, but the other members of the gang pres-sured him to do so. According to Mantich, the others were saying “you ain’t down for Lomas,” “shoot him,” “you ain’t got no heart,” and “this is for MIKEY.” Mantich stated: “I didn’t know what to do and then I just got up. And I’m like this and I pull the trigger and then I give the gun back to [Brunzo] and I sat back down.” Mantich put the barrel of the gun against the back of Thompson’s head and shot him once. Mantich stated that he did not want to kill Thompson. Rather, Mantich claimed that he was thinking about himself and was afraid of the others in the van.

At trial, Mantich gave a different account. He testified that he was seated in the back of the van during the entire episode and only joined the others as they taunted Thompson. Mantich claimed that the members of the gang did not put pressure on him to shoot Thompson and that no one gave him a gun. Mantich testified that during the taunting, he heard a gunshot and saw a spark from the gun. He denied shooting Thompson and speculated that Brunzo had shot Thompson.

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Mantich’s explanation of the events that directly followed the killing are, for the most part, consistent in his statement to the police and in his testimony in court. Eona stopped the van at about 13th and Jeffer-son Streets, where Brunzo opened the sliding van door and Eona and Brunzo pulled Thompson’s body out of the van. Mantich stated that as the van drove off, he felt a “little thud” and saw the body rolling. Brunzo explained that the van had just run over the body.

The group drove to Carrera’s house to retrieve his gun, and Mantich testified that he considered leaving the van at this time, but he did not because he feared that Brunzo or Eona might shoot him if he attempted to do so. The group then drove to the home of Palma’s grandmother and proceeded to fire gunshots into the house. Mantich claimed that he did not participate in the drive-by shooting.

The van was then driven to a dock near the South Omaha Bridge and dumped into the Missouri River. The gang members walked back to 13th Street and then split into two groups. Eona handed his gun to Mantich, and Brunzo and Carrera handed their guns to Huerta. After the others left, Huerta and Mantich walked to Huerta’s house.

Mantich later left Huerta’s house and eventually walked to Brian Dilly’s house. When Mantich arrived, he told Dilly, Dilly’s two brothers, and a friend of theirs about the events of the evening and stated that he had shot Thompson. Mantich said that if Dilly did

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not believe him, he should watch the 6 o’clock news. When the news reported the murder, Mantich ex-claimed, “I told you so.” Dilly testified that after the news report, Mantich retold his account of the events and again stated that he had shot Thompson. Mantich told Dilly that he shot Thompson because Brunzo called him a “puss” and claimed Mantich would not do it.

Dilly testified that Mantich returned about a week later and told him that other members of the group were angry with Mantich because they had heard someone was talking about their involvement in the killing. The group believed that Mantich was talking about the crime, and Mantich told Dilly that if he found out who was talking, he would kill the person. Dilly assured Mantich that he had not said anything to anyone, and Mantich left.

At trial, Mantich admitted telling Dilly that he had killed the victim, using the words “I pulled the trigger, and I’m a big shot.” Mantich said he was trying to impress Dilly and his brothers. Mantich admitted he had returned to Dilly’s house, but denied making any threats and claimed that he was merely warning Dilly that the others in the group might kill Dilly and his brothers if they were talking.

Mantich was arrested at Barrientos’ house on January 4, 1994, at approximately 9:30 p.m., and he was transported to central police headquarters. At approximately 10:30 p.m., Officer William Jadlowski and Sgt. William Agnew apprised Mantich of the

App. 65

allegations against him and informed him of his Miranda rights using the Omaha Police Division’s rights advisory form. Mantich verbally waived his right to counsel and agreed to give a statement. During the interrogation, Mantich first claimed that Brunzo fired the shot that killed Thompson. In a later version of the story, Mantich admitted that his first version of the events was not entirely truthful and that he had shot Thompson. Mantich was then asked to give a tape-recorded statement. Upon completion of that statement, the interrogation ended at 2:13 a.m. on January 5.

Mantich moved to suppress the tape-recorded statement on the grounds that it was not given volun-tarily. The motion was overruled. The trial court also overruled Mantich’s motion to waive jurisdiction and transfer Mantich’s case to juvenile court for adjudica-tion. Mantich was tried before a jury and was con-victed of murder in the first degree and use of a firearm to commit a felony. Mantich appeals.

ASSIGNMENTS OF ERROR

Mantich assigns the following errors: (1) The trial court erred in refusing to transfer this case to juvenile court; (2) the court erred in admitting Mantich’s tape-recorded statement into evidence, as the State had failed to prove its voluntariness; (3) the court erred in overruling Mantich’s objections to the court’s instructions on the law of aiding and abetting and in refusing to instruct the jury as requested by

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Mantich; (4) the court erred in holding that an un-armed defendant may be convicted as an aider and abettor of using a firearm in the commission of a felony; and (5) the court erred in submitting the case to the jury, as there was insufficient evidence upon which to base a conviction.

ANALYSIS

Transfer to Juvenile Court

Mantich argues that the trial court erred in refusing to transfer this case to juvenile court. The decision of whether to waive jurisdiction over a juvenile and transfer the case to juvenile court is governed by Neb. Rev. Stat. § 43-261 (Reissue 1993), which provides: “In deciding the motion [to transfer to juvenile court] the court shall, after considering the evidence and the reasons presented by the parties and the matters required to be considered by the county attorney pursuant to section 43-276, transfer the case unless a sound basis exists for retaining jurisdiction.” Abuse of discretion is the standard of review applicable to an appeal from a district court’s denial of a motion to transfer a pending criminal proceeding to the juvenile court. State v. Nevels, 235 Neb. 39, 453 N.W.2d 579 (1990).

The trial court applied factors set forth in Neb. Rev. Stat. § 43-276 (Reissue 1993) to determine whether it should waive jurisdiction and send the case to juvenile court. In State v. Phinney, 236 Neb. 76, 459 N.W.2d 200 (1990), we stated that in weighing

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such factors, there is no arithmetical computation or formula required in the court’s consideration of the statutory criteria. In order to retain the proceedings, the court does not need to resolve every factor against the juvenile. There are no weighted factors and no prescribed method by which more or less weight is assigned to each specific factor. It is a balancing test by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile. Id.

The trial court found that the alleged offense in-cluded violence and was performed in a highly aggres-sive manner. The motivation for the alleged offense was Mantich’s apparent desire to be “upgraded” in the opinion of his peers, and the offense was commit-ted in response to their encouragement. Mantich had previously been involved with the police regarding two property offenses. The court found that Mantich’s lifestyle demonstrated a desire to live independently as an adult. He lived with his girl friend frequently and had made his own decision about schooling. The court noted that there were no juvenile facilities appropriate for treatment and rehabilitation of a juvenile who had committed murder. Neb. Rev. Stat. § 43-286 (Reissue 1993) prohibits the placement of juveniles convicted of murder in the Youth Develop-ment Center-Kearney. The court found that because of the serious nature of the offense, the security of the public required that Mantich be incarcerated for a period of time extending beyond his minority,

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which would render the juvenile system inadequate to address these needs.

The trial court held there was a sound basis for retaining jurisdiction and overruled the motion to transfer. We agree. A judicial abuse of discretion exists when the reasons or rulings of a trial court are clearly untenable, unfairly depriving a litigant of a substantial right, and denying a just result in a matter submitted for disposition. See State v. Eona, 248 Neb. 318, 534 N.W.2d 323 (1995). The court did not abuse its discretion.

Tape-Recorded Statement

Mantich argues the State failed to prove that his tape-recorded statement was voluntary.

[T]o be admissible in evidence, an accused’s statement must be shown by the State to have been freely and voluntarily given and not to have been the product of any promise or inducement – direct or indirect – no mat-ter how slight. . . . [T]he determination of voluntariness is based upon an assessment of all of the circumstances and factors sur-rounding the occurrence when the statement is made, and the determination made by the trial court . . . will not be disturbed on appeal unless clearly wrong.

State v. Bronson, 242 Neb. 931, 937-38, 496 N.W.2d 882, 889 (1993).

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This assigned error presents two issues: (1) whether this error was preserved for appeal and (2) whether Mantich’s statement was voluntary. The State argues that Mantich did not preserve his chal-lenge to the voluntariness of the statement because he did not enter a proper objection to the statement at trial. We disagree. At trial, Officer Jadlowski discussed the general outline of the interrogation and began to testify about what Mantich stated during the interrogation. Mantich’s counsel said, “At this time I’m going to interpose an objection. Renew all objections previously made with regard to my client’s statement.” The objection was overruled, and the questioning of Jadlowski continued. The State changed the line of questioning to foundation for admission of the statement. The State offered the tape recording, and Mantich’s counsel stated, “Objec-tion; foundation.” The objection was overruled, and the tape recording was received and played for the jury.

The State argues that Mantich’s first objection – renewing his previous objections to admission of the statement, including the grounds he raised in his motion to suppress – did not carry over to preserve an objection when the statement was offered. The State contends that because Mantich’s counsel did not specifically state that his second objection was for lack of voluntariness, he failed to preserve this objec-tion to the tape-recorded statement for appeal.

We find that Mantich’s general objection on foundation was sufficient to preserve his objection for

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appeal. Neb. Rev. Stat. § 27-103 (Reissue 1989) pro-vides:

(1) Error may not be predicated upon a rul-ing which admits or excludes evidence unless . . .

(a) In case the ruling is one admitting evi-dence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if a specific ground was not ap-parent from the context. . . .

It would have been reasonably apparent to the trial court that Mantich intended to include an objection to the admissibility of the contents of the tape-recorded statement. Mantich made a proper foundational objection when the statement was offered into evidence. In order for a defendant’s statement to be entered into evidence, the State must first prove by a preponderance of the evidence that the statement was voluntarily made. State v. Garza, 241 Neb. 934, 492 N.W.2d 32 (1992). The voluntari-ness of the statement was a foundational issue, which Mantich articulated to the court.

We next consider whether Mantich’s tape-recorded statement was voluntary. Mantich argues that the totality of the circumstances surrounding the interrogation demonstrate the involuntary character of the statement. He emphasizes his age, the emo-tional pressure of the interrogation, and the fact that he did not have his parents or an attorney present at the interrogation. Mantich also claims the officers

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who interrogated him obtained information by using deceptive practices.

The Due Process Clause of U.S. Const. amend. XIV and the due process clause of Neb. Const. art. I, § 3, preclude admissibility of an involuntary confes-sion. State v. Martin, 243 Neb. 368, 500 N.W.2d 512 (1993) (citing Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), and State v. Bodtke, 219 Neb. 504, 363 N.W.2d 917 (1985)). In determining whether a confession or statement is voluntary, a court must make its assessment based on an examination of all the circumstances surrounding the confession or statement. See State v. Johnson, 242 Neb. 924, 497 N.W.2d 28 (1993). The State bears the burden to prove by a preponderance of the evidence the voluntariness of any statement by a defendant offered into evidence. See State v. Garza, supra.

At the suppression hearing, Officer Jadlowski testified that when Mantich was arrested, he was informed that he was being investigated in relation to the homicide of Thompson. The interrogation com-menced at 10:30 p.m., and after the officers obtained preliminary biographical information, Mantich was advised of his Miranda rights at 10:35 p.m. The officers used a standard rights advisory form, and Jadlowski testified that he recorded each of Mantich’s responses to the questions verbatim.

According to Officer Jadlowski, Mantich respond-ed in a coherent manner, was easy to understand, and appeared to understand what was going on. There

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were no inducements or promises made to Mantich in exchange for his statement. Mantich did not appear to be under the influence of alcohol or drugs at the time he was advised of his rights, and he appeared to understand what the advisements meant. Jadlowski stated that Mantich was not threatened or coerced. Mantich did not appear to be suffering from any duress under the circumstances and did not request that the interrogation be terminated.

Mantich voluntarily waived his right to counsel being present at the interrogation. Officer Jadlowski testified that Mantich’s decision to waive his rights appeared to be intelligently made and that it ap-peared that Mantich understood what he was doing. After commencement of the interrogation, Mantich did not request to be allowed to consult with an attorney.

Following the advisement of Mantich’s rights, Officer Jadlowski informed Mantich that police officers were also interrogating Brunzo, Eona, and Carrera. Jadlowski told Mantich that there was not a lot of mystery as to what had happened and that he believed Mantich was involved in the crime. Jadlowski requested that Mantich explain everything that had happened.

During his first account of the murder, Mantich stated that Brunzo had shot Thompson. The interro-gation continued for 1 hour, and the group then took a 30-minute break. At that time, Mantich was al-lowed to use the restroom, and he was offered a soda,

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which he accepted. After the break, Officer Jadlowski told Mantich that he had just spoken with Dilly, who said that Mantich had given him a different account of the shooting.

The second segment of the interrogation lasted about 1 hour. In a subsequent account of the killing, Mantich confessed to shooting Thompson. Mantich was asked if he would be willing to make a tape-recorded statement, and he agreed. The group then took a second 30-minute break at approximately 1 a.m. During the break, officers set up the tape-recording equipment. Jadlowski testified that Mantich did not appear to be tired at that time. Mantich then retold the last version of his story for purposes of the tape recording, which took about 43 minutes. After the tape-recorded statement was completed, Mantich asked to call his mother.

Mantich argues that the tape-recorded statement was obtained as a result of the deceptive practices of Officer Jadlowski. At the hearing on the motion to suppress, Jadlowski admitted that he had not spoken to Dilly during the break. In fact, Jadlowski had received this information from Dilly well before Mantich’s interrogation began. The test for determin-ing admissibility of a statement obtained by police deception is whether the deception produced a false or untrustworthy confession or statement. State v. Norfolk, 221 Neb. 810, 381 N.W.2d 120 (1986). In this instance, the deception cannot be said to have pro-duced Mantich’s statement. The only deception was with regard to the time at which Jadlowski obtained

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the information from Dilly. The trial court was not clearly wrong in finding that the deceptive statement about the time Jadlowski had spoken to Dilly did not produce an untrustworthy confession.

Mantich argues that the fact that the police taped only 43 minutes of the interrogation, which lasted approximately 2 hours 40 minutes, supports his claim that his confession was coerced. We disa-gree. A trial court’s ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994). In determining whether a trial court’s findings on a motion to suppress are clearly erroneous, the reviewing court recognizes the trial court as the trier of fact and takes into consideration that the trial court has observed the witnesses testi-fying regarding the motion. See id. We find nothing in the record to indicate that the trial court’s findings of fact were clearly erroneous or that the court should have suppressed the tape-recorded statement given by Mantich. At trial, Mantich testified on direct examination that he was never threatened, mistreat-ed, or promised anything by the police officers. Mantich’s assignment of error has no merit.

Jury Instructions and Intent

Mantich argues the trial court erred in overrul-ing his objections to the court’s instructions on aiding and abetting and by refusing to give his requested instruction. To establish reversible error from a

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court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the ten-dered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evi-dence, and (3) the appellant was prejudiced by the court’s refusal to give the tendered instruction. State v. Derry, 248 Neb. 260, 534 N.W.2d 302 (1995).

Mantich claims instruction No. 11 given by the trial court deleted the necessary element of intent from the allegations of aiding and abetting. In State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995), we explained that aiding and abetting requires some participation in a criminal act which must be evi-denced by some word, act, or deed, and mere encour-agement or assistance is sufficient to make one an aider or abettor; however, no particular acts are necessary, nor is it necessary that the defendant take physical part in the commission of the crime or that there was an express agreement to commit the crime. We also stated that when a crime requires the exist-ence of a particular intent, an alleged aider or abettor can be held criminally liable as a principal if it is shown that the aider and abettor knew that the perpetrator of the act possessed the required intent or that the aider and abettor himself or herself pos-sessed such intent.

Intent to kill is not an element of felony murder. Id. The intent required is the intent to commit the underlying felony. Id.; State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). Therefore, in order to find Mantich guilty of felony murder, the jury had to find

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that Mantich possessed the requisite intent to sup-port the underlying felony. In order for the court’s jury instructions to be sufficient on the issue of intent in a prosecution for felony murder under an aider and abettor theory, the jury instructions must instruct the jury that the aider and abettor either personally intended that the underlying felony be committed or aided another person whom the aider knew had such an intent. The intent required was not an intent to kill Thompson, but was an intent to commit robbery or kidnapping.

The trial court gave two instructions which, read together, instruct the jury as to the required proof regarding the prosecution’s aiding and abetting theory. With respect to the matter of aiding and abetting, the court gave instruction No. 11:

To be guilty of the crime charged, it is not necessary that the State prove that the de-fendant himself committed the unlawful act or acts in question.

Whoever aids, abets, or procures another to commit any offense may be prosecuted and punished as if he were the principal offender.

If you find from the evidence beyond a rea-sonable doubt that the unlawful act or acts in question were committed by another per-son who was:

1. Engaged by the defendant to commit the unlawful act or acts; or

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2. Engaged with the defendant in a com-mon, concerted, unlawful act or acts; or

3. Incited or encouraged by the defendant to commit the unlawful act or acts,

then the defendant is as guilty as if he him-self committed the unlawful act or acts, and it is your duty to find the defendant guilty.

Aiding and abetting involves some participa-tion in the criminal act and must be evi-denced by some word, act, or deed. No particular acts are necessary; nor is it neces-sary that any physical part in the commis-sion of the crime is taken or that there was an express agreement therefor. Mere encour-agement or assistance is sufficient.

On the other hand, evidence of mere pres-ence, acquiescence, or silence is not enough to sustain the State’s burden of proving the defendant guilty.

Instruction No. 9 provided:

Criminal intent is a material and necessary element of the crime of Murder in the First Degree in the commission of a felony as charged against the defendant. But the in-tent required is not an intent to kill Henry Thompson but is an intent to commit a rob-bery or kidnapping.

The intent required by Instructions 6 and 7 is a material element of the crime charged against the defendant. Intent is a mental process, and it therefore generally remains

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hidden within the mind where it is con-ceived. It is rarely – if ever – susceptible of proof by direct evidence. It may, however, be inferred from the words and acts of the de-fendant and from the facts and circumstanc-es surrounding his conduct. It is for you to determine from all the facts and circum-stances in evidence whether or not the de-fendant committed the acts complained of and whether at such time he had the crimi-nal intent required by Instructions 6 and 7. If you have any reasonable doubt with re-spect to either, you must find the defendant not guilty.

If all the jury instructions read together and taken as a whole correctly state the law, are not misleading, and adequately cover the issues support-ed by the pleadings and the evidence, there is no prejudicial error necessitating a reversal. State v. Lowe, 248 Neb. 215, 533 N.W.2d 99 (1995). Instruc-tion No. 11 instructed that Mantich could be found to have committed the underlying felony of robbery or kidnapping as an aider and abettor. Instruction No. 9 specifically stated that the prosecution was required to prove that Mantich intended to commit one of these underlying felonies. Read together, these in-structions required the jury to find that Mantich intended to aid and abet the commission of the felony underlying the felony murder charge. Therefore, Mantich was not prejudiced by the use of these in-structions instead of the instruction he proffered to

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the trial court. The court’s refusal to give Mantich’s proffered instruction was not error.

Use of a Firearm to Commit a Felony

Mantich argues that the trial court improperly instructed the jury that Mantich could be convicted of the crime of using a firearm to commit a felony under an aider and abettor theory. Instruction No. 7 provid-ed:

The material elements which the State must prove by evidence beyond a reasonable doubt in order to convict the defendant Douglas M. Mantich of the crime of use of a firearm to commit a felony, as charged in Count II of the Information, are:

1. That on or about the 6th day of Decem-ber, 1993, in Douglas County, Nebraska, the defendant, Douglas M. Mantich, either alone or while aiding and abetting another person did commit Murder in the First Degree in the perpetration of, or attempt to perpetrate a robbery or kidnapping; which is the subject of Count I of the Information;

2. That in the commission of said Murder in the First Degree in the perpetration of, or attempt to perpetrate a robbery or kidnap-ping, a firearm was used; and

3. That such use of a firearm to commit a felony was intentional.

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The State has the burden of proving beyond a reasonable doubt each and every one of the foregoing material elements necessary for conviction.

If you find from the evidence beyond a rea-sonable doubt that each of the foregoing ma-terial elements is true, it is your duty to find the defendant, Douglas M. Mantich guilty of the crime of use of a firearm to commit a fel-ony as charged in Count II and you shall so indicate by completing Verdict Form 3.

On the other hand, if you find the State has failed to prove beyond a reasonable doubt any one or more of the foregoing material el-ements, it is your duty to find the defendant not guilty of the use of a firearm to commit a felony as charged in Count II and you shall so indicate by completing Verdict Form 4.

The burden of proof is always on the State to prove beyond a reasonable doubt all of the material elements of the crime charged, and this burden never shifts.

Mantich claims instruction No. 7 incorrectly stated that he could be convicted of using a firearm to commit a felony even if the jury believed that he was unarmed.

Use of a firearm to commit a felony is an inde-pendent criminal offense under Neb. Rev. Stat. § 28-1205 (Reissue 1989). Nebraska’s aider and abettor statute, Neb. Rev. Stat. § 28-206 (Reissue 1989), provides that a person who aids, abets, procures, or

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causes another to commit any offense may be prose-cuted and punished as if he were the principal of-fender. In State v. Tucker, 242 Neb. 336, 494 N.W.2d 572 (1993), we held that one who intentionally aids and abets the commission of a crime may be respon-sible not only for the intended crime, if it is in fact committed, but also for other crimes which are com-mitted as a natural and probable consequence of the intended criminal act. See, also, State v. Carter, 241 Neb. 645, 489 N.W.2d 846 (1992); State v. Trackwell, 235 Neb. 845, 458 N.W.2d 181 (1990). Thompson was kidnapped, robbed, and terrorized at gunpoint. The crime of using a firearm to commit these acts is a natural and probable consequence of the kidnapping, robbery, and terrorizing of Thompson. As a natural and probable consequence of the kidnapping and robbery, Mantich – who intentionally aided and abetted these criminal acts – could properly be con-victed of using a firearm to commit a felony even if the jury believed that he was unarmed. Mantich’s assignment of error has no merit.

Sufficiency of the Evidence

On review, a criminal conviction must be sus-tained if the evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. In determining whether the evidence is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts in the evi-dence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented to

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the jury, which are within a jury’s province for dispo-sition. State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995). A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict. Moreover, on such a claim, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence. State v. Cisneros, 248 Neb. 372, 535 N.W.2d 703 (1995).

The facts taken in the light most favorable to the State are such that a finder of fact could conclude beyond a reasonable doubt that Mantich committed murder while aiding and abetting in the kidnapping and robbery of Thompson and used a firearm to commit a felony. There is sufficient evidence to demonstrate that Mantich aided and abetted the kidnapping and robbery perpetrated against Thomp-son. When Eona and Brunzo left the party and re-turned with the stolen van, Mantich joined them over the strong objections and physical restraint of his girl friend. Mantich testified that he heard Eona and Brunzo tell Thompson they were going to kill him, and Mantich watched as Eona and Brunzo repeatedly jabbed Thompson in the head with the barrels of their guns. Mantich’s statement to police was sufficient to establish that he was handed a gun, placed the gun against the back of Thompson’s head, and pulled the trigger.

Even if the jury was uncertain as to whether Mantich actually shot Thompson, the evidence sup-ports the jury’s finding that Mantich aided and abetted

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in the kidnapping and robbery of Thompson. It was undisputed that Thompson was killed by someone in the van while the group was kidnapping, robbing, and terrorizing him. The group forcibly restrained Thompson with the express intent of robbing and terrorizing him. The evidence shows that Mantich encouraged these activities and participated in the verbal terrorization of Thompson. This evidence is sufficient to convict Mantich of felony murder and use of a weapon to commit a felony.

The Sentence

Finally, we address the sentence for use of a firearm to commit a felony. Upon being sentenced to life imprisonment for first degree murder, a defen-dant is not entitled to credit for time served in custo-dial detention pending trial and sentence; however, when the defendant receives a sentence consecutive to the life sentence that has a maximum and mini-mum term, the defendant is entitled to receive credit for time served against the consecutive sentence. State v. Marks, 248 Neb. 592, 537 N.W.2d 339 (1995). We therefore note plain error in Mantich’s sentence for use of a firearm to commit a felony.

A sentencing judge is required to separately determine, state, and grant the amount of credit on the defendant’s sentence to which the defendant is entitled under Neb. Rev. Stat. § 83-1,106(1) (Reissue 1994). State v. Marks, supra. We therefore vacate the sentence imposed for use of a firearm to commit a

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felony and remand the cause to the trial court with directions to resentence Mantich and give him credit for time served against the firearm conviction.

CONCLUSION

Mantich’s convictions for first degree murder and use of a firearm to commit a felony are affirmed. Mantich’s sentence for use of a firearm to commit a felony is vacated, and the cause is remanded to the trial court with directions to resentence Mantich, giving him credit for time served.

AFFIRMED IN PART, AND IN PART VACATED AND REMANDED WITH DIRECTIONS.

WHITE, C.J., participating on briefs.

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DISTRICT COURT JOURNAL NO. 3364 PAGE 200

JANUARY TERM, A.D. Friday, October 28, 1994

134-137 THE STATE OF NEBRASKA VS DOUGLAS M. MANTICH

MURDER IN THE FIRST DEGREE; USE OF FIREARM TO COMMIT A FELONY (10103 – 21622)

INFORMATION

JUDGMENT AND SENTENCE

Defendant’s Motion for New Trial submitted by Counsel and is overruled.

Defendant present in court with counsel, C. Kelly.

The defendant was informed by the Court of the verdicts of the jury finding him Guilty of Count I Murder In The First Degree; Guilty of Count II Use Of A Firearm To Commit A Felony and he stated no reason why sen-tence should not be passed against him.

Thereupon, it was the judgment and sen-tence of the court that defendant be impris-oned in an institution under the jurisdiction of the DEPARTMENT OF CORRECTION-AL SERVICES for a period of LIFE on Count I – Murder In The First Degree; Five (5) to Twenty (20) Years on Count II – Use Of Firearm To Commit A Felony at hard labor, no part of which shall be in soli- tary confinement, and judgment rendered

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against the defendant for the costs of prose-cution.

Commitment ordered accordingly.

Credit for time served of Two Hundred Ninety Eight (298) Days shall not be given against sentence imposed.

Sentences to run consecutive.

J. PATRICK MULLEN, JUDGE

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Source: Laws 1977, LB 38, § 4.

28-105. Felonies; classification of penalties; sentences; where served. (1) For purposes of this code and any statute passed by the Legislature after the date of passage of this code, felonies are divided into six classes which are distinguished from one another by the following penalties which are author-ized upon conviction:

Class I Felony ........... Death

Class IA Felony ......... Life imprisonment

Class IB Felony ......... Maximum-life imprisonment Minimum-ten years imprison-ment

Class II Felony .......... Maximum-fifty years impris-onment Minimum-one year imprison-ment

Class III Felony ........ Maximum-twenty years impris-onment, or twenty-five thou-sand dollars fine, or both Minimum-one year imprison-ment

Class IV Felony ......... Maximum-five years imprison-ment, or ten thousand dollars fine, or both Minimum-none

(2) All sentences of imprisonment for Class IA, IB, II, and III felonies and sentences of one year or more for Class IV felonies shall be served in institu-tions under the jurisdiction of the Department of

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Correctional Services. Sentences of less than one year shall be served in the county jail except as provided in this subsection. If the Department of Correctional Services certifies that it has programs and facilities available for persons sentenced to terms of less than one year, the court may order that any sentence of six months or more be served in any institution under the jurisdiction of the Department of Correctional Services. Any such certification shall be given by the department to the State Court Administrator, who shall forward copies thereof to each judge having jurisdiction to sentence in felony cases.

(3) Nothing in this section shall limit the au-thority granted in sections 29-2221 and 29-2222, to increase sentences for habitual criminals.

Source: Laws 1977, LB 38, § 5,

28-303. Murder in the first degree; penalty. A person commits murder in the first degree if he kills another person (1) purposely and with deliberate and premeditated malice, or (2) in the perpetration of or attempt to perpetrate any sexual assault in the first degree, arson, robbery, kidnapping, hijacking of any public or private means of transportation, or burglary, or (3) by administering poison or causing the same to be done; or if by willful and corrupt perjury or subornation of the same he purposely procures the conviction and execution of any innocent person. The determination of whether murder in the first degree shall be punished as a Class I or Class IA

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felony shall be made pursuant to sections 29-2520 to 29-2524.

Source: Laws 1977, LB 38, § 18.

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NEBRASKA SUPREME COURT AND NEBRASKA COURT OF APPEALS

OFFICE OF THE CLERK P.O. BOX 98910

2413 STATE CAPITOL BUILDING LINCOLN, NE 68509

(402) 471-3731

March 12, 2014

J. Kirk Brown ATTORNEY GENERAL 2115 State Capitol Lincoln, NE 68509

IN CASE OF: S-11-000301, State v. Douglas M. Mantich

The following internal procedural submission or filing by a party:

Mot Appellee, Stay Mandate submitted or filed 02/18/14

has been reviewed by the court and the follow-ing order entered:

Appellee’s motion to stay mandate filed February 18, 2014, is overruled as untimely pursuant to Neb. Ct. R. § 2-114(A)(2) in that it was not filed within 7 days of the filing of the Court’s opinion on February 7, 2014. However, the Court concludes that the issue presented in this case is a federal question, and that in the interest of the orderly administration of justice, the mandate should be stayed pending any review of this issue by the United States Supreme Court. Accordingly, the Court, on its own motion, stays the

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mandate until further order of the Court. Any party seeking to have the stay lifted and the mandate issued shall file an appropriate motion setting forth the grounds therefor, including but not limited to the status or disposition of any petition for writ of certio-rari.

Respectfully,

CLERK OF THE SUPREME COURT AND COURT OF APPEALS