State v. Mata

whether the evaluation period in question was a “competency
proceeding.”
In reaching his conclusion, Judge Cassel noted that Tamayo’s
counsel stated, in part, that the purpose of the evaluation at
issue was to examine Tamayo “‘for competence to assist me in
his defense and to stand trial.’” I agree that this was a judicial
admission on the part of Tamayo. And when this admission is
considered with other evidence suggesting Tamayo was also
being evaluated for competence, it is clear to me that the dis-
trict court did not clearly err in reaching its conclusion that a
“competency proceeding” was held from April 8 to October
20, 2008.
I would reverse the judgment of the Court of Appeals and
instead affirm the judgment of the district court denying the
motion to discharge.
 State v. Tamayo, 8 Neb. App. 430, 447, 783 N.W.2d 240, 252 (200)
(Cassel, Judge, dissenting) (emphasis omitted).
State of NebraSka , appellee , v.
raymoNd mata , Jr ., appellaNt.
790 N.W.2d 76
Filed November 9, 200. 	No. S-0-2.
. Pleadings. The decision to grant or deny an amendment to a pleading rests in the
discretion of the trial court.
2. Postconviction: Right to Counsel. In the absence of a showing of an abuse of
discretion, the failure to provide court-appointed counsel in postconviction pro-
ceedings is not error.
3. ____: ____. Where the record shows that a justiciable issue of law or fact is pre-
sented in a postconviction action, an indigent defendant is entitled to the appoint-
ment of counsel.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
Appeal from the District Court for Scotts Bluff County: leo
dobrovolNy, Judge. Reversed and remanded with directions.
STATe v. mATA 	849
Cite as 280 Neb. 849
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

Brian J. Lockwood, Deputy Scotts Bluff County Public
Defender, for appellant.
Jon Bruning, Attorney General, and J. Kirk Brown for
appellee.
H eavicaN, 	c.J., 	WrigHt, 	coNNolly, 	gerrard, 	StepHaN,
mccormack, and miller-lermaN, JJ.
mccormack, J.
NATURe OF CASe
This case presents an appeal from the denial of a motion
for postconviction relief without an evidentiary hearing. The
defendant, Raymond mata, Jr., sought to show an infringement
of his constitutional rights in relation to his conviction of mur-
der and his sentence of death. On appeal, he does not assert
that the allegations in his motion were sufficient to warrant
an evidentiary hearing, but, rather, that the court should have
appointed counsel and allowed him to amend.
BACKGROUND
mata was found guilty of first degree premeditated murder,
first degree felony murder, and kidnapping in association with
the death of 3-year-old Adam Gomez. mata was sentenced
to life imprisonment for kidnapping and sentenced to death
for first degree premeditated murder. In State v. Mata, we
affirmed the convictions of first degree premeditated murder
and kidnapping, and we affirmed the sentence of life imprison-
ment for the kidnapping. Based on Ring v. Arizona,2 we vacated
his death sentence. We remanded the cause with directions for
a new penalty phase hearing and resentencing on the conviction
of first degree premeditated murder.
On remand, mata was again sentenced to death on the
conviction of first degree premeditated murder. He appealed,
 State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003), abrogated on other
grounds, State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
2 Ring v. Arizona, 536 U.S. 584, 22 S. Ct. 2428, 53 L. ed. 2d 556
(2002).
850 	280 NeBRASKA RePORTS

and in an opinion issued February 8, 2008, we affirmed the
imposition of the death sentence.3 However, we concluded that
electrocution, as a means of carrying out that sentence, was
cruel and unusual punishment in violation of the Nebraska
Constitution, article I, § 9. Accordingly, we issued an indefinite
stay of mata’s execution.
On July 2, 2009, mata filed a pro se verified motion for
postconviction relief and request for appointment of counsel.
The State filed its response on October 2. On October 20, the
district court held a preliminary hearing to determine whether
to grant the request for counsel and whether to grant an eviden-
tiary hearing. mata participated telephonically. mata explained
to the court that he believed the motion for an evidentiary hear-
ing was premature because he was not “ready.” mata wished
for the court to first consider whether to appoint him counsel.
He hoped that counsel could assist him in evaluating the record
and in amending his motion for postconviction relief before the
merits of the motion would be determined.
mata explained that he filed the motion for postconvic-
tion relief without first fully reviewing the record because he
needed to toll the -year statute of limitations for filing an
application for a writ of habeas corpus in federal court.4 He
claimed that our indefinite stay of his execution had placed him
in a legal “limbo” which prevented him from filing a habeas
action within a year from the final judgment. The motion for
postconviction relief had been prepared by mata’s trial coun-
sel, but the seven alleged grounds for relief included claims of
ineffective assistance at trial. mata emphasized at the hearing
that his main purpose was to obtain appointment of counsel to
assist him in further developing these and other claims. mata
stated he would like an opportunity to amend his motion, with
or without counsel.
After the State argued that mata’s petition failed to raise
a justiciable issue, mata reiterated that he “would like a
chance to go through the record preferably with counsel and
3 See State v. Mata, 275 Neb. , 745 N.W.2d 229 (2008).
4 See 28 U.S.C. § 2244(d)() (2006). See, also, Lawrence v. Florida, 549
U.S. 327, 27 S. Ct. 079, 66 L. ed. 2d 924 (2007).
STATe v. mATA 	85
Cite as 280 Neb. 849

have a chance to amend this.” The following colloquy then
took place:
[mata]: Okay. I have one question. What if you were to
decide not to give me legal counsel? Can I still — well,
do you think you can consider letting me amend it even if
I have to go through the record on my own?
THe COURT: You can make that request. I can’t tell
you whether I would grant the request here today.
[mata]: Okay.
THe COURT: That’s a request that you could make.
[mata]: Okay. Well, I would like to make that request
because I think there is a lot of stuff — well, I think once
I go — because I really don’t know much about it, but
there is [sic] people around here that I could probably
get, you know, to get to help me to go through the record
and — because I think there is a lot more in there, that
because those issues that were raised were just — I think
they were last-minute issues that they put together so we
could get the clock stopped because we wasted already
eight or nine months of it. So just keep that in mind. I
would appreciate it, your Honor.
THe COURT: Well . . . are you asking me for permis-
sion to amend this motion on an immediate basis? I mean,
is that something that you are asking to do now?
[mata]: Well, no. I was asking if for some reason if
you decided not to appoint counsel, would you let me go
through the record and amend it to see what constitutional
issues I could find that any of my constitutional issues
that, you know, that I could find in there.
THe COURT: If . . . you still have something pend-
ing in front of this Court, you can proceed on your own
without counsel if you wish to. So I think the answer to
your question is probably yes, if I did not appoint you an
attorney and there was [sic] still issues for me to decide as
a judge, you could act on your own behalf, yes.
[mata]: Okay. Well, see, honestly, I don’t know any-
thing about this process. I know what people are telling
me here and there and I really don’t know a whole lot
about it.
852 	280 NeBRASKA RePORTS

THe COURT: All right. Well . . . I have to examine
this record in order to make this decision —
[mata]: Okay.
Thereafter, in a single final order, the district court denied
both an evidentiary hearing on the postconviction motion and
mata’s request for appointment of counsel. The court did not
specifically determine whether the motion for postconviction
relief presented any justiciable issue which would entitle mata
to appointment of counsel.5 Instead, relying on the standard for
determining whether a motion for postconviction relief may be
denied without an evidentiary hearing,6 the court found that the
files and records of the case affirmatively showed that mata
was entitled to no relief, based on the allegations in his motion.
Presumably because there was no longer anything pending
before the district court, mata did not again ask to amend
his motion for postconviction relief. He instead appealed to
this court.
ASSIGNmeNTS OF eRROR
mata alleges that the district court erred by refusing to ()
appoint an attorney to assist him and (2) allow him to amend
his motion for postconviction relief.
STANDARD OF ReVIeW
[] The decision to grant or deny an amendment to a plead-
ing rests in the discretion of the trial court.7
ANALYSIS
[2,3] In the absence of a showing of an abuse of discretion,
the failure to provide court-appointed counsel in postconvic-
tion proceedings is not error.8 However, where the record
shows that a justiciable issue of law or fact is presented in a
5 See, e.g., State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 58
(2003); State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (998); State v.
Boppre, 252 Neb. 935, 567 N.W.2d 49 (997).
6 See, e.g., State v. McLeod, 274 Neb. 566, 74 N.W.2d 664 (2007); State v.
Hudson, 270 Neb. 752, 708 N.W.2d 602 (2005).
7 Otey v. State, 240 Neb. 83, 485 N.W.2d 53 (992).
8 State v. Keithley, 238 Neb. 966, 473 N.W.2d 29 (99).
STATe v. mATA 	853
Cite as 280 Neb. 849

postconviction action, an indigent defendant is entitled to the
appointment of counsel.9 In this case, mata argues that the
court erred in failing to grant him leave to amend his petition
to state a justiciable issue.
While the State asserts that mata withdrew his motion to
amend, we disagree with its reading of the record. It is clear
that mata wished to amend his motion for postconviction relief
and that based on his discussion with the court, he believed
the court would consider whether to allow him to amend after
determining his request for appointment of counsel. mata
stated: “I was asking if for some reason if you decided not to
appoint counsel, would you let me go through the record and
amend it to see what constitutional issues I could find that any
of my constitutional issues that, you know, that I could find
in there.” The court responded: “So I think the answer to your
question is probably yes . . . .”
mata’s ability to amend his petition is governed by Neb. Ct.
R. Pldg. § 6-5(a), which states that a party may amend “the
party’s pleading once as a matter of course before a respon-
sive pleading is served or, if the pleading is one to which
no responsive pleading is permitted, the party may amend it
within 30 days after it is served.” By the time of the hearing on
mata’s motion for postconviction relief, the period of amend-
ment as a matter of course had elapsed and mata could amend
his pleading only by leave of court or written consent of the
adverse party.0
We review the district court’s decision refusing to grant
leave to amend under such circumstances for abuse of discre-
tion. However, § 6-5(a) also states that “leave shall be
freely given when justice so requires.” Because Nebraska’s
9 State v. Wiley, 228 Neb. 608, 423 N.W.2d 477 (988).
0 See Neb. Ct. R. Pldg. § 6-5(a).
 See, e.g., Bjorgung v. Whitetail Resort, LP, 550 F.3d 263 (3d Cir. 2008);
Carroll v. Fort James Corp., 470 F.3d 7 (5th Cir. 2006); Porat v.
Lincoln Towers Community Ass’n, 464 F.3d 274 (2d Cir. 2006); Epstein
v. C.R. Bard, Inc., 460 F.3d 83 (st Cir. 2006); Kaba v. Stepp, 458 F.3d
678 (7th Cir. 2006); Inge v. Rock Financial Corp., 388 F.3d 930 (6th Cir.
2004); State v. Silvers, 260 Neb. 83, 620 N.W.2d 73 (2000).
854 	280 NeBRASKA RePORTS

current notice pleading rules are modeled after the Federal
Rules of Civil Procedure, we look to federal decisions for guid-
ance.2 Federal courts interpreting this provision have explained
that the liberal pleading philosophy of the federal rules limits
a district court’s discretion to deny leave to amend.3 A district
court’s denial of leave to amend pleadings is appropriate only
in those limited circumstances in which undue delay, bad faith
on the part of the moving party, futility of the amendment, or
unfair prejudice to the nonmoving party can be demonstrated.4
more specifically, federal decisions have held that it is an
abuse of discretion for the district court to dismiss a suit on the
basis of the original complaint without first considering and
ruling on a pending motion to amend.5
[4] In this case, mata attempted to explain the circumstances
which necessitated leave to amend, and no prejudice to the
State was established which would justify the denial of leave
to amend. Counsel appointed for purposes of this appeal argues
that mata has viable ineffective assistance of counsel and other
claims and that if he is not allowed to amend his motion, he
will be procedurally barred from ever bringing those claims
before being put to death. An abuse of discretion occurs when
a trial court’s decision is based upon reasons that are unten-
able or unreasonable or if its action is clearly against justice
or conscience, reason, and evidence.6 We agree that under the
circumstances of this case, it was an abuse of discretion for
the district court to deny mata leave to amend his motion for
postconviction relief. We therefore reverse the judgment of the
2 Kellogg v. Nebraska Dept. of Corr. Servs., 269 Neb. 40, 690 N.W.2d 574
(2005).
3 See, Bjorgung v. Whitetail Resort, LP, supra note ; Theme Promotions v.
News America Marketing FSI, 546 F.3d 99 (9th Cir. 2008).
4 Roberson v. Hayti Police Dept., 24 F.3d 992 (8th Cir. 200); Bailey v.
First Nat. Bank of Chadron, 6 Neb. App. 53, 74 N.W.2d 84 (2007),
citing Foman v. Davis, 37 U.S. 78, 83 S. Ct. 227, 9 L. ed. 2d 222
(962). See, also, Kills on Top v. State, 279 mont. 384, 928 P.2d 82
(996) (applying similar standard in postconviction action).
5 See, e.g., Ellison v. Ford Motor Co., 847 F.2d 297 (6th Cir. 988).
6 State v. Thorpe, ante p. , 783 N.W.2d 749 (200).
STATe v. mATA 	855
Cite as 280 Neb. 849

district court and remand the cause with directions to appoint
counsel for mata and grant him leave to amend.
CONCLUSION
For the foregoing reasons, we reverse, and remand with
directions to appoint mata counsel and grant him leave to
amend his motion for postconviction relief.
reverSed aNd remaNded WitH directioNS.
State of NebraSka ex rel . couNSel for diScipliNe of
tHe NebraSka Supreme court, relator , v.
kim d. erWiN-loNcke , reSpoNdeNt.
790 N.W.2d 72
Filed November 9, 200. 	No. S-0-07.
Original action. Judgment of disbarment.
H eavicaN, 	c.J., 	WrigHt, 	coNNolly, 	gerrard, 	StepHaN,
mccormack , and miller-lermaN, JJ.
per curiam.
INTRODUCTION
This case is before the court on the voluntary surrender
of license filed by respondent, Kim D. erwin-Loncke, on
November 2, 200. The court accepts respondent’s surrender of
her license and enters an order of disbarment.
STATemeNT OF FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on July 26, 2007, and has maintained an office
in Omaha, Nebraska. On August 2, 200, the Counsel for
Discipline of the Nebraska Supreme Court received an over-
draft notice with respect to the respondent’s trust account. In
addition, the record shows that on September 4, the Counsel
for Discipline received a grievance against respondent from a
health care provider claiming that respondent had failed to pay
a bill on behalf of an individual for whom respondent was act-
ing as a conservator. At the time respondent filed her voluntary
856 	280 NeBRASKA RePORTS