State v. Sands

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE v. SANDS
Cite as 33 Neb. App. 554
State of Nebraska, appellee, v.
Michael J. Sands, appellant.
___ N.W.3d ___
Filed April 15, 2025. 	No. A-24-508.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
2. Limitations of Actions. If the facts in a case are undisputed, the issue
as to when the statute of limitations begins to run is a question of law.
3. Postconviction: Limitations of Actions: Words and Phrases: Appeal
and Error. For purposes of Neb. Rev. Stat. § 29-3001(4)(a) (Cum.
Supp. 2024), the conclusion of a direct appeal occurs when a Nebraska
appellate court issues the mandate in the direct appeal.
4. Postconviction: Limitations of Actions: Jurisdiction: Waiver. The
1-year period of limitation contained within Neb. Rev. Stat. § 29-3001(4)
(Cum. Supp. 2024) is not a jurisdictional requirement. Instead, it is in
the nature of a statute of limitations and can be waived by the State
when the State fails to raise it as an affirmative defense in the dis-
trict court.
5. Postconviction: Limitations of Actions. If, as part of its prelimi-
nary review, the trial court finds the postconviction motion affirma-
tively shows—either on its face or in combination with the files and
records before the court—that it is time barred under Neb. Rev. Stat.
§ 29-3001(4) (Cum. Supp. 2024), the court is permitted, but not obliged,
to sua sponte consider and rule upon the timeliness of the motion.
6. Postconviction: Time. Whether to rule sua sponte on the timeliness
of a postconviction motion is a matter left to the discretion of the dis-
trict court.
7. Postconviction: Time: Statutes. The State does not have the obligation
to raise issues concerning a postconviction action at a time prior to that
mandated by statute.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:33 AM CDT

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE v. SANDS
Cite as 33 Neb. App. 554
Appeal from the District Court for Hall County: Patrick M.
Lee, Judge. Affirmed.
Michael J. Sands, pro se.
Michael 	T. 	Hilgers, Attorney 	General, 	and 	Melissa 	R.
Vincent for appellee.
Moore, Pirtle, and Welch, Judges.
Welch, Judge.
INTRODUCTION
Michael J. Sands appeals the Hall County District Court’s
denial of his successive motion for postconviction relief with-
out an evidentiary hearing. For the reasons set forth herein, we
affirm the district court’s order.
STATEMENT OF FACTS
In 2022, Sands pled no contest to theft by unlawful taking
in an amount of $5,000 or more and was sentenced to 10 to 20
years’ imprisonment. On direct appeal, in case No. A-22-877,
Sands was represented by different counsel and alleged in
his brief that the sentence imposed was excessive and that
“[d]efense [c]ounsel was ineffective.” This court summarily
affirmed Sands’ sentence and specifically found that his inef-
fective assistance of counsel claim was “not sufficiently pled
to require analysis.” The mandate issued on March 22, 2023.
On April 26, 2023, Sands filed his first motion for post-
conviction relief in which he generally alleged that his trial
counsel was ineffective in failing to fully investigate his case.
In May, the district court dismissed Sands’ motion without an
evidentiary hearing on the basis that it failed to “comply with
the pleading requirements of Neb. Rev. Stat. §29-3001 [Cum.
Supp. 2024] or subsequent cases interpreting the Nebraska
Postconviction Relief Act.” Sands did not appeal this denial.
On March 25, 2024, Sands filed a subsequent motion for
postconviction relief in which he alleged that his trial counsel
and appellate counsel were ineffective in various ways. The

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE v. SANDS
Cite as 33 Neb. App. 554
district court denied Sands’ subsequent motion without an evi-
dentiary hearing, finding that his claims were without merit.
Sands’ successive motion for postconviction relief does not list
service on the State. Sands has timely appealed to this court.
ASSIGNMENT OF ERROR
Sands’ sole assignment of error is that the district court
erred in denying his motion for postconviction relief without
an evidentiary hearing.
STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirm-
atively show that the defendant is entitled to no relief. State v.
Goynes, 318 Neb. 413, 16 N.W.3d 373 (2025).
[2] If the facts in a case are undisputed, the issue as to when
the statute of limitations begins to run is a question of law.
State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018).
ANALYSIS
Sands contends that the district court erred in denying his
motion for postconviction relief without an evidentiary hearing
on the basis that his pleading and the record affirmatively show
that he was entitled to relief.
As the Nebraska Supreme Court recently stated in State v.
Goynes, 318 Neb. at 431, 16 N.W.3d at 388:
Postconviction relief is described in Neb. Rev. Stat.
§ 29-3001 (Cum. Supp. 2024). Pursuant to § 29-3001(1),
postconviction relief is available on the ground that there
was such a denial or infringement of the rights of the
prisoner as to render the judgment void or voidable under
the Constitution of this state or the Constitution of the
United States.
Under § 29-3001(1), a prisoner in custody under sen-
tence “may file a verified motion, in the court which

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE v. SANDS
Cite as 33 Neb. App. 554
imposed such sentence, stating the grounds relied upon
and asking the court to vacate or set aside the sentence.”
Section 29-3001(2) gives the right to a hearing “[u]nless
the motion and the files and records of the case show to
the satisfaction of the court that the prisoner is entitled
to no relief.”
The Nebraska Postconviction Act contains a 1-year time
limit for filing verified motions. Neb. Rev. Stat. § 29-3001(4)
(Cum. Supp. 2024). Generally, the 1-year period runs from
one of five triggering events. Id. Summarized, those trigger-
ing events in § 29-3001(4) are as follows: (a) the date the
judgment of conviction became final, (b) the date the factual
predicate of the alleged constitutional claim could have been
discovered through due diligence, (c) the date an impediment
created by state action was removed, (d) the date on which a
new constitutional claim was recognized by either the U.S.
Supreme Court or the Nebraska Supreme Court, or (e) the
date the U.S. Supreme Court denies a writ of certiorari or
affirms a conviction appealed from the Nebraska Supreme
Court, if the prisoner had filed the required notice regarding
the filing of a petition for a writ of certiorari.
[3,4] In the instant case, the only applicable subsection
is § 29-3001(4)(a), i.e., the date the judgment of conviction
became final. For purposes of § 29-3001(4)(a), the conclusion
of a direct appeal occurs when a Nebraska appellate court
issues the mandate in the direct appeal. State v. Koch, 304
Neb. 133, 933 N.W.2d 585 (2019). Here, Sands’ successive
motion for postconviction relief was not filed until March
25, 2024, which was more than 1 year after the mandate on
Sands’ direct appeal issued on March 22, 2023. But even
though Sands’ successive motion for postconviction relief was
untimely, “the 1-year period of limitation is not a jurisdictional
requirement. Instead, it is in the nature of a statute of limita-
tions and can be waived by the State when the State fails to
raise it as an affirmative defense in the district court.” State v.
Boeggeman, 316 Neb. 581, 592, 5 N.W.3d 735, 743 (2024),

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE v. SANDS
Cite as 33 Neb. App. 554
disapproved on other grounds, State v. Goynes, 318 Neb. 413,
16 N.W.3d 373 (2025).
The State acknowledges that although the 1-year limita-
tion period in § 29-3001(4) is in the nature of an affirmative
defense and can be waived by the State’s failing to raise it,
the State argues that in the instant case, the 1-year limitation
period has not been waived because the district court denied
Sands’ motion without giving the State an opportunity to
respond. As such, the State argues that this court can determine
the issue of whether Sands’ successive motion for postconvic-
tion relief is time barred because this appeal is the State’s first
opportunity to raise the issue.
Although our independent research has not uncovered any
case law wherein a Nebraska appellate court has considered
whether a defendant’s motion for postconviction relief is time
barred for the first time in its appellate review, there is prec-
edent for a district court to sua sponte consider whether a
motion for postconviction relief is time barred.
[5] For instance, in State v. Amaya, 298 Neb. 70, 902
N.W.2d 675 (2017), the Nebraska Supreme Court addressed
the issue of the State’s waiver of the statute of limitations
defense and the district court’s right to consider the defense
sua sponte. Similar to the case at bar, the district court denied
a successive motion for postconviction relief without requir-
ing notice to be served on the county attorney. The Supreme
Court recognized that under such circumstances, “the State did
not have an opportunity to raise the affirmative defense that
the successive postconviction motion was time barred.” Id.
at 75, 902 N.W.2d at 680. After discussing the U.S. Supreme
Court’s holding in Day v. McDonough, 547 U.S. 198, 126 S.
Ct. 1675, 164 L. Ed. 2d 376 (2006), wherein the U.S. Supreme
Court ultimately concluded that it was permissible for federal
district courts to consider sua sponte the timeliness of habeas
petitions, the Amaya court held:
We find the reasoning of Day to be instructive, and
we now hold that if, as part of its preliminary review,

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE v. SANDS
Cite as 33 Neb. App. 554
the trial court finds the postconviction motion affirma-
tively shows—either on its face or in combination with
the files and records before the court—that it is time
barred under § 29-3001(4), the court is permitted, but not
obliged, to sua sponte consider and rule upon the timeli-
ness of the motion.
298 Neb. at 77, 902 N.W.2d at 681.
[6] And more recently, in State v. Boeggeman, 316 Neb. at
592, 5 N.W.3d at 743, the Nebraska Supreme Court stated that
if, as part of its preliminary review, the trial court
finds the postconviction motion affirmatively shows—
either on its face or in combination with the files and
records before the court—that it is time barred under
§ 29-3001(4), the court is permitted, but not obliged, to
sua sponte consider and rule upon the timeliness of the
motion. Whether to rule sua sponte on the timeliness of
a postconviction motion is a matter left to the discretion
of the district court.
See, also, State v. Torres, 300 Neb. 694, 915 N.W.2d 596
(2018) (if, as part of its preliminary review, district court finds
postconviction motion affirmatively shows—either on its face
or in combination with files and records before court—that
it is time barred under § 29-3001(4), court is permitted, but
not obliged, to sua sponte consider and rule upon timeliness
of motion).
In Amaya, the district court dismissed the postconviction
motion 	following 	a 	preliminary 	review 	without 	providing
notice to the State. The basis for the district court’s dismissal
was its sua sponte recognition of the statute of limitations
violation. But here, although the district court dismissed the
postconviction motion following preliminary review, it did not
dismiss Sands’ successive motion for postconviction relief on
the basis that it was time barred; instead, the court provided
an alternative basis for the dismissal. As such, as the State
argues, this appeal presents its first chance to raise the statute

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE v. SANDS
Cite as 33 Neb. App. 554
of limitations defense to a court. Under these circumstances,
we agree that we can consider the issue.
[7] The procedure involving preliminary review of post-
conviction motions as it related to obligatory State participa-
tion was outlined by the Nebraska Supreme Court in State v.
Burries, 310 Neb. 688, 693, 969 N.W.2d 96, 100 (2022):
Under the terms of § 29-3001(1), certain “prisoner[s]
in custody” have the ability to file a motion seeking
postconviction relief. Upon the filing of that motion, the
court has the obligation to determine whether the prisoner
is entitled to no relief, in which case the motion is dis-
missed, or, alternatively, conclude that the defendant is
entitled to a hearing to determine if he or she is entitled
to relief.
If it is determined that a prisoner is entitled to a hear-
ing, the court shall, under § 29-3001(2), “cause notice
thereof to be served on the county attorney.” Though the
State, through its county attorneys, can, and often does,
participate at earlier points in the process, the State is
only called upon to take action with respect to a motion
once it receives notice from the court. We decline to
conclude that the State has the obligation to raise issues
concerning a postconviction action at a time prior to that
mandated by statute.
Similar to State v. Amaya, 298 Neb. 70, 902 N.W.2d 675
(2017), under the circumstances of this case, the State did
not raise the affirmative defense of the statute of limitations
because the motion was dismissed by the district court fol-
lowing its preliminary review. As such, this is the State’s
first opportunity to raise the defense and, under such cir-
cumstances, does not constitute a waiver of the defense. By
presenting the issue now on appeal, Sands has an opportunity
to rebut the State’s statute of limitations defense. To that end,
Sands provides us with no legal basis to refute the State’s
claim that Sands’ motion was not timely filed as evidenced on
the face of the motion and the record and file before us. Under

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE v. SANDS
Cite as 33 Neb. App. 554
these circumstances, we find that the district court properly
dismissed Sands’ successive motion for postconviction relief
without a hearing, albeit on grounds different from those
articulated by the district court. See State v. Alarcon-Chavez,
295 Neb. 1014, 893 N.W.2d 706 (2017) (when record dem-
onstrates that decision of trial court is correct, although such
correctness is based on different grounds from those assigned
by trial court, appellate court will affirm).
CONCLUSION
Having determined that Sands’ successive motion for post-
conviction relief was time barred, we affirm the district court’s
denial of his motion without an evidentiary hearing.
Affirmed.