Filed 10/30/13 P. v. Maldonado CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO

THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137721
v.
ROBERT GARY MALDONADO,                                               (Del Norte County
                                                                     Super. Ct. No. CRF129079)
         Defendant and Appellant.

         Appellant, Robert Gary Maldonado, appeals from a judgment revoking probation
(on the basis of appellant’s admission he violated probation) and executing a previously
imposed and stayed state prison sentence. His court-appointed counsel has filed a brief
raising no issues and requesting this court to conduct an independent review of the record
pursuant to People v. Wende (1979) 25 Cal.3d 436.
         On May 14, 2013, this court granted appellant’s request to file a supplemental
brief on his own behalf raising any issues he believes the court should consider. On
June 20, 2013, we issued an order directing appointed counsel to provide appellant the
complete record on appeal and granted appellant an extension of 60 days within which to
file his supplemental brief. By letter dated June 25, 2013, defense counsel, Terrence
McQuigg, confirmed that he mailed the reporter’s and clerk’s transcripts to appellant at
the new address he provided: California Men’s Colony West, P.O. Box 8101, San Luis
Obispo, CA 93409-8101.

                                                             1
       On January 21, 2013, the trial court granted appellant’s request for a certificate of
probable cause. Accordingly, this appeal is authorized by Penal Code section 1237.51
and rule 8.304 of the California Rules of Court.
                        FACTS AND PROCEEDINGS BELOW
The Underlying Felony Offense2
       On January 30, 2012, appellant was cohabiting in a mobile home at 1235
Northcrest Drive, No. 5, in Crescent City with his girlfriend, Shannon Grimes. Around
1:00 p.m. that day he phoned the Del Norte Sherriff’s Office to report a burglary of the
mobile home. When Deputy Donaldson arrived, appellant told him Grimes had broken
into the home. The deputy, who had been informed that appellant was the suspect in a
domestic violence case at the mobile home, told appellant he detected a strong smell of
alcohol coming from him. Appellant stated he had drunk two “24 ounce Tilts” about two
hours earlier. After Deputy Griffin arrived at the scene, Donaldson went to another
address at which he had been informed Grimes was located.
       When he arrived, Donaldson noticed redness on Grimes neck. Grimes explained
she had been in the mobile home on Northcrest, where she lived with appellant, talking
with a friend, Baldwin, when appellant suddenly arrived home intoxicated and punched
her in the arm for no apparent reason. He then began yelling at her, knocked her down
and got on top of her, and placed her in a “choke hold.” After Baldwin pushed him off
her, Grimes was able to leave the trailer. Appellant ran after her, and when he caught
her put her in a choke hold a second time. When a witness, Patricia Lewis, shouted that
she was going to call the police, appellant let Grimes go and left. Donaldson
corroborated this information with Baldwin and Lewis and then returned to the mobile
home, where appellant had been detained.
       Appellant denied the altercation Grimes had described. According to him, Grimes
broke into the mobile home to steal $825 that belonged to him because they were

       1
        All statutory references are to the Penal Code unless otherwise indicated.
       2
        Our description of the facts of this offense are taken from the Presentence
Investigation Report filed with the court by the probation officer on August 1, 2012.
                                             2
supposed to split the rent and she was behind on her half. After appellant said Grimes
was a co-lessee of the mobile home, Donaldson told him she therefore could not illegally
break into her own home, and appellant could not lock her out without commencing an
eviction process. Donaldson then arrested appellant and transported him to the Del Norte
County Jail, where he was booked.
       Appellant subsequently pled guilty to corporal injury to a spouse or cohabitant
(§ 273.5) and admitted three special allegations of prior prison terms (§ 667.5, subd. (b)),
with the understanding he would receive a grant of probation with specified conditions.
Execution of sentence was suspended, with an indication of a state prison term of seven
years, appellant was placed on three years’ formal probation, with the requirement that he
complete a one-year “Batterer’s Intervention Program,” submit to drug testing on
demand, totally refrain from alcohol and marijuana, and receive an assessment for
alcohol and drug treatment.
The Violation of Probation
       On the night of September 11, 2012, Cash Hasley’s bike was stolen from his
Crescent City apartment house. The next day appellant told Hasley he knew who stole the
bike and he could buy it back for $60. At about 3:00 p.m. that afternoon, while Hasley
was being interviewed about the burglary and theft by Gill, appellant called Hasley to
discuss the sale of the bike and Hasley put Gill on the phone. After Gill identified
himself, appellant agreed to meet him forthwith in the nearby Home Depot parking lot.
Accompanied by Grimes, appellant showed up at the parking lot with the bike, which he
said he obtained from the thief after a fight. However, appellant then changed his story,
claiming he had purchased the bike, and presenting Gill with a “bill of sale” (a “ripped-up
piece of paper,” with “scribbly writing on it”) indicating he had paid $60 for it.
       Appellant called Vaughn Barker as a witness at the preliminary hearing. Barker,
who had several prior criminal offenses, including one for falsely identifying himself to a
peace officer, stated that he was present at about 2:20 p.m. on September 12 when Craig
Burgess—a friend he had met while they were both in the “tank” at the Del Norte County
Jail—showed up behind the Shop Mart store in Crescent City with a blue Schwinn

                                              3
mountain bike and asked appellant if he wanted to buy it for “60 bucks.” He did and,
after Burgess scribbled something on a piece of paper which could have been a bill of
sale, appellant left with the bike.
       On November 7, 2012, appellant admitted to violating the terms and conditions of
his probation, not only by committing the crime of receiving stolen property (§ 496) but
also by testing positive for methamphetamine, alcohol, and morphine. The terms of the
prosecution offer were to allow appellant to admit to the first probation violation petition
and dismiss the new case. Appellant would be sentenced, pursuant to the
recommendation of the probation department on the underlying case, and the new case
would be dismissed.
          A sentencing hearing was scheduled and continued several times at appellant’s
requests. The sentencing hearing was eventually held on December 13, 2012.
The Report of the Probation Department
       The probation report commences with a description of appellant’s “extensive and
violent” criminal history, which dates back to 1983. The report states that appellant “has
received four grants of probation, yet he has never completed a single grant of probation
successfully. In fact it was the defendant’s habitual noncompliance with his previous
grants of probation, which included the commission of new crimes while on probation,
that resulted in the defendant serving multiple prison commitments throughout the last 29
years. The defendant’s performance on parole was equally lackluster as he committed
nine parole violations that included the commission of new crimes while on parole, which
resulted in the defendant being sent back to prison multiple times to finish his prison
terms.”
       The report also stated that since being last placed on probation on August 2, 2012,
appellant “has continually used alcohol, methamphetamine, marijuana, and morphine, has
been terminated from the Batterer’s Intervention Program, has failed to complete any
community work service, and has ultimately failed [to] fulfill his obligations to the Court
and probation department.” According to the report, appellant’s failure to demonstrate
any serious effort to achieve sobriety is shown by the fact that “every single test he has

                                             4
provided the Probation department has been positive for drugs and/or alcohol, as well as
the fact that he stopped going [to] AA meetings after only one week of participation.”
       Concluding appellant “has repeatedly demonstrated through his actions, and
behavior, that he is a career criminal who has no interest in achieving sobriety,
successfully completing his grant of probation, or becoming a productive member of
society,” the probation department recommended “that no further leniency be granted to
this defendant, and that his previously suspended sentence now be imposed.”
The Sentencing Hearing
       At the commencement of the hearing, defense counsel advised the court that “my
client has expressed some concern over his admission to the charge of a 496. It’s his
understanding that a gentleman by the name of Craig Burgess had written a confession
letter to the underlying crime. [¶] I have tried to track that letter down through Mr.
Burgess’s counsels. Both of them, Mr. Leroy Davies, Mr. McElfresh, have indicated to
me that there is no such letter.”
       Defense counsel also advised the court that appellant “would like to withdraw his
plea, and he also would like new counsel.” Appellant’s request for new counsel appears
to have been based on his contention that his present attorney, Karen Olson, had
previously prosecuted him for an offense charged in 2006. The requests to withdraw the
plea and be assigned new counsel had been the subject of hearings held after admission
of the plea and before the sentencing hearing, at which time they were denied. The court
declined appellant’s request to reopen those issues.
       Appellant was sentenced to state prison for four years for violation of
section 273.5, willful infliction of corporal injury on a spouse or cohabitant, and three
separate one-year enhancements pursuant to section 667.5, subdivision (b), to be served
consecutively, for a total sentence of seven years.

                                              5
                                        DISCUSSION
       Where, as here, an appellant has pled guilty or no contest to an offense, the scope
of reviewable issues is restricted to matters based on constitutional, jurisdictional, or
other grounds going to the legality of the proceedings leading to the plea; guilt or
innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895–896.)
       The supplemental brief filed by appellant in propria persona on August 22, 2013,
focuses on his claim that his defense counsel had a “conflict of interest” due to the fact
that she prosecuted him six years earlier, in 2006, when she was a district attorney. This
issue was seemingly raised for the first time at the sentencing hearing, about a month
after appellant had admitted the probation violation, at which time he was represented by
Olson. The trial court declined to grant appellant’s requests to withdraw his plea and for
the appointment of new counsel. Such refusal was amply supported by the absence of a
genuine conflict of interest, appellant’s delay in raising the issue, and because, even
indulging the erroneous assumption that there were a genuine conflict, it could not have
been prejudicial due to the overwhelming evidence of the admitted probation violation.
The ruling is not arguably erroneous.
       Nothing in the record indicates appellant was mentally incompetent to stand trial
or to understand the admonitions he received from the court prior to entering his plea, and
to thereupon enter a knowing and voluntary plea.
       The admonitions given appellant at the time he entered his plea fully conformed
with the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969)
1 Cal.3d 122, and his waiver was knowing and voluntary.
       The court is satisfied that the police report referred to by defense counsel at the
time he stipulated there was a factual basis for the plea exists.
       Appellant was at all times represented by competent counsel who protected his
rights and interests.
       The sentence imposed is authorized by law.
       Our independent review has revealed no arguable issues that require further
briefing.

                                              6
                                   DISPOSITION
The judgment of conviction, which includes the sentence imposed, is affirmed.

                                           7
                                             _________________________
                                             Kline, P.J.

We concur:

_________________________
Haerle, P.J.

_________________________
Brick, J.*

      * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

                                         8


140 Cal.App.3d 1011 (1983)
189 Cal. Rptr. 824
C.I. ENGINEERS & CONSTRUCTORS, INC., Cross-complainant and Respondent,
v.
JOHNSON & TURNER PAINTING COMPANY, INC., Cross-defendant and Appellant.
Docket No. 62842.
Court of Appeals of California, Second District, Division Five.
March 17, 1983.
*1013 COUNSEL
Haight, Dickson, Brown & Bonesteel, George C. McCarthy, Roy G. Weatherup and Christopher M. Gilman for Cross-defendant and Appellant.
Coyle, Marrone & Robinson and J. Alan Frederick for Cross-complainant and Respondent.
OPINION
EAGLESON, J.[*]
C.I. Engineers & Constructors, Inc., defendant, cross-complainant and respondent (hereinafter referred to as cross-complainant or contractor), sought contract indemnity against Johnson & Turner Painting Company, Inc., cross-defendant and appellant (hereinafter referred to as cross-defendant or subcontractor). The trial court granted cross-complainant's motion for a summary judgment on the issue of liability under an indemnity clause found in a written construction contract entered into between cross-complainant and cross-defendant. Following a court trial on the issue of damages a money judgment was entered in favor of cross-complainant against cross-defendant, and this appeal follows. (The damages were those paid by cross-complainant to Davis for personal injury.)
The issue is whether in light of admitted facts the court correctly interpreted the written indemnity clause as one raising an issue of law only or whether the clause, and the right to indemnity thereunder, could be interpreted only after a determination of triable issues of fact, thus precluding summary judgment. We affirm.

FACTS
Davis, the injured party and trial court plaintiff, was a foreman for cross-defendant who was acting as a painting subcontractor on a construction job. Cross-complainant was the general contractor.
In support of a motion for summary judgment and claim for indemnity, cross-complainant submitted declarations, deposition excerpts, answers to interrogatories, requests for admissions which because they remained unanswered were deemed admitted, and a second set of requests for admissions and answers thereto. Collectively, they clearly established that Davis was negligent *1014 in respect of the incident in which he was injured, that his negligence was a proximate cause of his injury, and that at the time of the incident he was an employee of cross-defendant and acting in the course and scope of his employment.
It was also conceded below that cross-complainant was negligent, but no determination was made whether its negligence was active or passive. We have then a case of co-negligence of both the indemnitor (subcontractor) and indemnitee (contractor).
The written contract provision which is the basis of the claim reads:
"`B. INDEMNITY. All work covered by this Agreement done at the site of construction or in preparing or delivering materials to the site shall be at the risk of SUBCONTRACTOR alone. SUBCONTRACTOR agrees to save, indemnify and keep harmless CONTRACTOR against any and all liability, claims, judgments, or demands, including the obligations of CONTRACTOR on account of any similar agreement CONTRACTOR has with OWNER, including demands arising from injuries or death of persons (SUBCONTRACTOR'S employees included) and damage to property, arising directly or indirectly out of the obligations herein undertaken or out of the operations conducted by SUBCONTRACTOR, save and except claims or litigation arising through the sole negligence or sole willful misconduct of CONTRACTOR, and will make good to and reimburse CONTRACTOR for any expenditures, including reasonable attorneys' fees, CONTRACTOR may make by reason of such matters and, if requested by CONTRACTOR, will defend any such suits at the sole cost and expense of SUBCONTRACTOR.'"

DISCUSSION
(1a) The trial court found that this clause was a "Type I" provision which allows indemnity for damages arising out of any type of negligence, including active negligence of the indemnitee. If the clause is of this type, a qualitative determination that the negligence was active or passive is irrelevant.
Cross-defendant contends that the indemnity agreement was of a "Type II" or "general indemnity" variety precluding summary judgment because ultimate liability can be allocated only if the indemnitee cross-complainant (contractor) is factually found to be passively and not actively negligent, and since no such finding was made, summary judgment is improper.
The rubrics "Type I" and "Type II" stem from a classification model articulated by this court in MacDonald & Kruse, Inc. v. San Jose Steel Co., Inc. (1972) 29 Cal. App.3d 413 [105 Cal. Rptr. 725]. But since the legal principles *1015 governing written express indemnity reflect its contractual nature the inquiry should be focused on what the parties intended in the circumstances of their own agreement.
"`Past cases have held that an indemnity agreement may provide for indemnification against an indemnitee's own negligence, but such an agreement must be clear and explicit and is strictly construed against the indemnitee. [Citation.] If an indemnity clause does not address itself to the issue of an indemnitee's negligence, it is referred to as a "general" indemnity clause. [Citations.] While such clauses may be construed to provide indemnity for a loss resulting in part from an indemnitee's passive negligence, they will not be interpreted to provide indemnity if an indemnitee has been actively negligent. [Citation.] Provisions purporting to hold an owner harmless "in any suit at law" [citation], "from all claims for damages to persons" [citation], and "from any cause whatsoever" [citation], without expressly mentioning an indemnitee's negligence, have been deemed to be "general" clauses.'" (Guy F. Atkinson Co. v. Schatz (1980) 102 Cal. App.3d 351, 356-357 [161 Cal. Rptr. 436].)
The indemnity clause here does address itself to the issue of indemnitee's negligence and is not therefore a "general" indemnity clause. Cross-complainant contractor sought indemnity against any and all liability, claims, judgments or demands, which was further refined to include "demands arising from injuries or death of persons (SUBCONTRACTOR'S employees included)... arising directly or indirectly out of the obligations herein undertaken or out of the operations conducted by SUBCONTRACTOR," (obviously the job site activities of Davis, subcontractor's agent, acting in the course and scope of his employment at the time of his injury), "save and except claims or litigation arising through the sole negligence or sole willful misconduct of CONTRACTOR...." (Italics added.) If we assume that the all encompassing phrase "any and all" is unclear or not explicit it becomes unambiguous when highlighted against the contractual limitation later alluded to in the indemnity clause, that is, that the contractor was not to be indemnified for claims or litigation arising through its sole negligence or sole wilful misconduct.
It is true that Civil Code section 2782 renders void as against public policy any provision in a construction contract which seeks to provide indemnity against the "sole negligence or willful misconduct of the promisee," but it does not follow, as suggested by appellant, that the inclusion of that phrase in the indemnity clause is simply an effort to comply with the statute.
(2) "`"[T]he laws which subsist at the time and place of the making of a contract ... enter into and form a part of it, as if they were expressly referred to or incorporated in its terms."'" (United States Trust Co. v. New Jersey *1016 (1976) 431 U.S. 1, 19-20 [52 L.Ed.2d 92, 108, 97 S.Ct. 1505]; Home Bldg. & L. Assn. v. Blaisdell (1934) 290 U.S. 398, 429-430 [78 L.Ed. 413, 423-424, 54 S.Ct. 231, 88 A.L.R. 1481].) (1b) In order to be afforded any meaning at all, the inclusion of this phrase in the indemnity clause must necessarily quantify the scope of cross-defendant subcontractor's responsibility, that is, to indemnify against any and all liability arising out of job related activity except that occasioned by the sole negligence or sole wilful misconduct of cross-complainant.
Put differently, is there a legally significant semantic distinction between saying "I expect to be indemnified against any and all claims arising out of job related injuries, including those arising from my negligence" and "I expect to be indemnified against any and all claims arising out of job related injuries, except those attributable to my sole negligence?" We think not.
The appellate court considered the qualitative contours of each parties' negligence in Guy F. Atkinson Co. v. Schatz, supra, 102 Cal. App.3d at pages 358-359: "But even if respondent [subcontractor] could be said to be negligent on these facts, as appellant [contractor] contends, its negligence consisted at most in the fact that its two employees on the job performed their work in an area exposed to a dangerous condition created by appellant. We find no reported California case which has upheld indemnification in such a situation. To read the agreement as providing for indemnity in such a situation would come very close to providing indemnity for the `sole negligence' of the indemnitee in situations where the indemnitee's negligence consists of creating a hazardous condition of the job." In Atkinson there had been a court trial and factual findings.[1] In our case, because of the summary judgment ruling, there was no trial because the operative facts were uncontroverted. What we have here, as a matter of law, are a negligent cross-complainant indemnitee and a conegligent cross-defendant indemnitor.
(3) Appellant contends that the admitted negligence of Davis cannot be imputed to his employer, and therefor, the subcontractor employer, not otherwise negligent, is not responsible under the indemnity clause. He cites Kemerer v. Challenge Milk Co. (1980) 105 Cal. App.3d 334 [164 Cal. Rptr. 397] for this proposition. In Kemerer plaintiff sued a defendant for personal injury. At trial the jury found defendant 70 percent at fault and plaintiff 30 percent at fault in causing her injury. Because her injury was job related, plaintiff-in-intervention, plaintiff's employer's compensation carrier, filed a complaint for reimbursement by way of subrogation. Plaintiff was awarded $25,000 in addition to her previously received compensation benefits. This was reduced by $7,500 because of her 30 percent comparative negligence, resulting in a net recovery *1017 of $17,500. The interveners were awarded $18,860.50, the full amount paid in compensation benefits to plaintiff.
Defendants appealed contending that the court erred in not permitting the imputation of plaintiff employee's negligence to the otherwise nonnegligent employer. In rejecting this argument, the court reasoned, at page 338: "Defendant's contention is untenable because by imputing plaintiff-employee's negligence to her employer, the damages assessed against the third party tortfeasor would be reduced twice contrary to the principle of comparative fault. Defendants would first reduce the total award by plaintiff-employee's comparative fault. Secondly, by using the employee's negligence imputed to her employer, they would reduce the amount of recovery by plaintiffs-in-intervention."
Kemerer has no application to the facts at bench. Here, the legal obligation of the indemnifying subcontractor, if any, is predicated upon express contract indemnity and not upon the application of the comparative fault doctrine which springs from common law tort principles. (Li v. Yellow Cab Co. (1979) 13 Cal.3d 804 [119 Cal. Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393].)
In Vinnell Co. v. Pacific Elec. Ry. Co. (1959) 52 Cal.2d 411, 414 [340 P.2d 604], a written indemnity clause read: "Contractor hereby releases and agrees to indemnify and save Railroad harmless from and against any and all injuries to and deaths of persons, claims, demands, cost, loss, damage and liability, however same may be caused, resulting directly or indirectly from the performance of any or all work to be done upon the property and beneath the tracks of Railroad and upon the premises adjacent thereto under said agreement between District and Contractor, also from all injuries to and deaths of persons, claims, demands, cost, loss, damage and liability, howsoever same may be caused either directly or indirectly, made or suffered by said Contractor, Contractor's agents, employees and subcontractors, and the agents and employees of such subcontractors, while engaged in the performance of said work."
The question was whether such an indemnity clause operates to exculpate the defendant railroad from the consequences of its own negligence where the clause does not expressly state that damage caused by the defendant's negligence is intended to be included in the coverage of the clause. The court held: "It would appear that `to be sufficient as an exculpatory provision against one's own negligence, the party seeking to rely thereon must select words or terms clearly and explicitly expressing that this was the intent of the parties.' [Citation.] The language of the present clause, prepared on behalf of the defendant railroad, falls short of so expressing the defendant's intention to exculpate itself.... `The defendant itself wrote the provision into the contract for its own benefit. It could have plainly stated, if such was the understanding of the parties, that the plaintiff agreed to relieve it in the matter from all liability for its *1018 own negligence. As it did not do so, we resolve all doubt, as we should, in favor of the plaintiff, and hold that it was not the intent of the parties to give to the contract as written the effect claimed by the company.'" (Vinnell Co. v. Pacific Elec. Ry. Co., supra, 52 Cal.2d at pp. 414, 415.)
To require that an express indemnity clause be cast in the rote form suggested by Vinnell is to compel contracting parties to lie upon a procrustean bed of linguistic formalism that inhibits the clear meaning of plain English.
(1c) We hold that a contractor who seeks indemnity against any and all liability, claims, judgments or demands, including demands arising from injuries or death of the subcontractor indemnitor's employees, arising directly or indirectly out of the indemnitor's obligations undertaken and that arise out of the contract, save and except claims or litigation arising through the sole negligence or sole wilful misconduct of contractor indemnitee is in sum and substance the same idea as would be conveyed if the indemnitee contracted to be indemnified against any and all liability including its own acts of negligence (except of course its sole negligence or sole wilful misconduct prohibited by Civ. Code, § 2782).
In John E. Branagh & Sons v. Witcosky (1966) 242 Cal. App.2d 835 [51 Cal. Rptr. 844] the parties litigated the meaning of an indemnity clause almost identical to the one in the case at bench. However, the sole contention on appeal (id., at p. 837) was that the clause was against public policy and therefore unenforceable. No contention was made or argument addressed to the question whether the indemnity provision was sufficiently clear to encompass the right to indemnity where there was conegligence of both indemnitor and indemnitee. Thus, the case is not authority for the court's determination herein.
Under the admitted facts the court found that this was a case of conegligence. In view of our holding that the indemnity clause allows recovery by cross-complainant under these facts, no triable issue of fact remains respecting the passive or active nature of cross-complainant's negligence, and the summary judgment was properly granted.
The judgment on the cross-complaint is affirmed.
Feinerman, P.J., and Hastings, J., concurred.
On April 14, 1983, the opinion was modified to read as printed above.
NOTES
[*]   Assigned by the Chairperson of the Judicial Council.
[1]  The appellate court noted that the trial court declined to make a requested finding that the two employees were actively negligent.


Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2019 09:07 AM CDT

                                                         - 133 -
                                  Nebraska Supreme Court A dvance Sheets
                                          304 Nebraska R eports
                                                   STATE v. KOCH
                                                  Cite as 304 Neb. 133

                        State of Nebraska, appellee and cross-appellant, v.
                          Edward D. Koch, appellant and cross-appellee.
                                                    ___ N.W.2d ___

                                        Filed September 27, 2019.   No. S-18-971.

                 1. 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.
                 2. Appeal and Error. When reviewing a question of law, an appellate court
                    resolves the question independently of the lower court’s conclusion.
                 3. Postconviction: Final Orders: Appeal and Error. Within a postcon-
                    viction proceeding, an order granting an evidentiary hearing on some
                    issues and denying a hearing on others is a final, appealable order as
                    to the claims denied without a hearing. It is appealable because an
                    order overruling a motion for postconviction relief as to a claim is a
                    “final judgment” as to such claim under Neb. Rev. Stat. § 29-3002
                    (Reissue 2016).
                 4. Postconviction: Pleadings: Time. Neb. Rev. Stat. § 29-3001(4) (Reissue
                    2016) of the Nebraska Postconviction Act contains a 1-year time limit
                    for filing a verified motion for postconviction relief, which runs from
                    one of four triggering events or August 27, 2011, whichever is later.
                 5. Postconviction: Limitations of Actions: Words and Phrases: Appeal
                    and Error. The issuance of a mandate by a Nebraska appellate court is
                    a definitive determination of the “conclusion of a direct appeal,” and the
                    “date the judgment of conviction became final,” for purposes of Neb.
                    Rev. Stat. § 29-3001(4)(a) (Reissue 2016).

                 Appeal from the District Court for Cass County: Michael A.
               Smith, Judge. Affirmed.
                    Cameron Kroeger, of Berry Law Firm, for appellant.
                 Douglas J. Peterson, Attorney General, Erin E. Tangeman,
               and Maureen Larsen, Senior Certified Law Student, for appellee.
                                - 134 -
             Nebraska Supreme Court A dvance Sheets
                     304 Nebraska R eports
                           STATE v. KOCH
                          Cite as 304 Neb. 133

  Miller-Lerman, Cassel, Stacy, and Papik, JJ., and Bishop,
Judge.
   Stacy, J.
   Edward D. Koch appeals from an order of the Cass County
District Court dismissing his motion for postconviction relief
after an evidentiary hearing. The State cross-appeals, arguing
the district court erred in granting an evidentiary hearing on a
postconviction claim that was time barred. We affirm the dis-
missal of the postconviction motion.
                       I. BACKGROUND
   In 2014, Koch was charged with two counts of manslaughter
in violation of Neb. Rev. Stat. § 28-305 (Reissue 2008). He
eventually pled no contest to both counts as charged, and he
was sentenced to consecutive terms of 15 to 20 years in prison
for each conviction.
   Koch filed a direct appeal, represented by the same attorney.
The Nebraska Court of Appeals affirmed Koch’s conviction
and sentence in a memorandum opinion filed May 24, 2016.1
The Court of Appeals issued its mandate to the Cass County
District Court on June 28.
   The record shows the mandate was filed by the clerk of the
district court on July 21, 2016, and a few days later, on July
25, the district court entered judgment in accordance with the
mandate. An amended judgment on the mandate was entered
July 28 to correct a typographical error.
   On July 19, 2017, Koch filed a verified motion for post-
conviction relief. The motion, which was prepared and filed
by newly retained counsel, alleged that Koch’s trial counsel
had provided ineffective assistance in four respects. The State
moved to deny postconviction relief without an evidentiary
hearing, arguing, among other things, the motion was time
barred. In response, Koch argued that his motion was timely

1
    State v. Koch, No. A-15-959, 2016 WL 3083135 (Neb. App. May 24,
    2016) (selected for posting to court website).
                                   - 135 -
              Nebraska Supreme Court A dvance Sheets
                      304 Nebraska R eports
                              STATE v. KOCH
                             Cite as 304 Neb. 133

under Neb. Rev. Stat. § 29-3001(4)(a) (Reissue 2016), because
it was filed within 1 year of the date on which the Court of
Appeals’ mandate had been filed in the district court.
   In an order entered November 2, 2017, the district court
agreed with Koch on the issue of timeliness. It noted that under
§ 29-3001(4)(a), a postconviction motion must be filed within
1 year of “‘the conclusion of a direct appeal.’” The district
court reasoned “the issuance of an appellate opinion is not
necessarily the final step in the appellate process, and that issu-
ance and receipt of the mandate is also a part of that process.”
Applying this reasoning, the district court found Koch’s direct
appeal concluded on July 21, 2016, the date on which the
Court of Appeals’ mandate was filed in the district court, and
thus concluded Koch’s postconviction motion was timely filed
within 1 year of that date.
   The district court then found Koch was entitled to an
evidentiary hearing on one of his four claims of ineffective
assist
      ance of counsel. It found the other three claims were
either procedurally barred or insufficiently pled, and dismissed
them. Neither Koch nor the State appealed the November 2,
2017, order.
   An evidentiary hearing was held on the remaining claim,
and the district court found Koch had failed to show his trial
counsel performed deficiently. In an order entered September
18, 2018, the court therefore dismissed Koch’s motion for post-
conviction relief.
   Koch filed a timely appeal, and the State cross-appealed. We
moved the appeal to our docket on our own motion.2

               II. ASSIGNMENTS OF ERROR
   Koch assigns, restated, that the district court erred in (1)
finding he was not entitled to an evidentiary hearing on three
of his four postconviction claims and (2) denying his remain-
ing postconviction claim after an evidentiary hearing.

2
    See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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  In its cross-appeal, the State assigns, restated, that the district
court erred in granting an evidentiary hearing because Koch’s
postconviction motion was time barred under § 29-3001(4)(a).
                III. STANDARD OF REVIEW
   [1,2] If the facts in a case are undisputed, the issue as
to when the statute of limitations begins to run is a ques-
tion of law.3 When reviewing a question of law, an appellate
court resolves the question independently of the lower court’s
conclusion.4
                         IV. ANALYSIS
   On cross-appeal, the State argues the district court erred in
granting an evidentiary hearing on one of Koch’s ineffective
assistance claims, rather than dismissing Koch’s postconvic-
tion motion as untimely. Because we find this issue disposi-
tive, we address it first. Before doing so, however, we pause
to address Koch’s argument that the State’s cross-appeal is not
properly before us.
                      1. State’s Cross-A ppeal
                        Properly Before Us
   Koch argues the State’s cross-appeal should not be con-
sidered for two reasons. First, he argues the timeliness ruling
being challenged on cross-appeal was part of the district court’s
order of November 2, 2017, and the State did not timely appeal
from that order. Second, Koch argues the State did not timely
file its appellate brief raising the cross-appeal. We address each
argument in turn and reject them both.
             (a) Timeliness of State’s Cross-Appeal
   [3] It is well established that, within a postconviction pro-
ceeding, an order granting an evidentiary hearing on some
issues and denying a hearing on others is a final, appealable

3
    State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018).
4
    State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018), cert. denied ___
    U.S. ___, 139 S. Ct. 2716, ___ L. Ed. 2d ___ (2019).
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order as to the claims denied without a hearing.5 Such an order
is appealable because as to the denied claim, it is a “final judg-
ment” under Neb. Rev. Stat. § 29-3002 (Reissue 2016).6
   As noted, the district court’s order of November 2, 2017,
dismissed three of the four postconviction claims raised by
Koch. Neither party appealed, and Koch is thus correct that
the November 2 order has become final as it regards the three
dismissed claims. But the November 2 order was not a final,
appealable order as to the remaining claim on which an evi-
dentiary hearing was ordered. As to that claim, no final order
was entered until September 18, 2018, when the district court
denied postconviction relief following an evidentiary hearing.
Koch timely appealed from the September 18 order, and in its
appellate brief, the State presented a cross-appeal7 limited to
the timeliness of the claim on which the evidentiary hearing
was held. There is no merit to Koch’s argument that the State’s
cross-appeal is not properly before us because no appeal was
taken from the November 2 order.
                  (b) Timeliness of State’s Brief
   Next, Koch urges us not to consider the State’s cross-appeal
because the State “failed to timely file its brief” on appeal.8
We need not discuss the circumstances under which an appel-
late court might accept and consider a party’s untimely brief,
because here, the State’s brief and cross-appeal were not
untimely.
   The State requested, and was granted, an extension of time
to file its appellate brief, and it thereafter filed its brief, which
asserted a cross-appeal,9 within the time permitted by the court.
The State’s cross-appeal is properly before this court, and
Koch’s arguments to the contrary have no merit.

5
    Id.
6
    See id.
7
    See Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2014).
8
    Reply brief for appellant at 7.
9
    See Neb. Ct. R. App. P. § 2-101(E) (rev. 2015).
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                    2. Koch’s Postconviction
                        Motion Untimely
   In its cross-appeal, the State argues it was error for the
district court to grant an evidentiary hearing on Koch’s claim
because his postconviction motion was time barred under
§ 29-3001(4)(a). We agree.
   [4] Section 29-3001(4) of the Nebraska Postconviction Act10
contains a 1-year time limit for filing a verified motion for
postconviction relief, which runs from one of four triggering
events or August 27, 2011, whichever is later.11 Here, the appli-
cable triggering event is set out in § 29-3001(4)(a): “The date
the judgment of conviction became final by the conclusion of
a direct appeal or the expiration of the time for filing a direct
appeal.” As such, the question of timeliness in this case turns
on whether Koch filed his postconviction motion within 1 year
of the date his judgment of conviction became final by the con-
clusion of his direct appeal.
   Koch argues his direct appeal was not concluded until the
district court entered judgment on the mandate issued by the
Court of Appeals. The State argues Koch’s direct appeal was
concluded once the Court of Appeals issued its mandate. The
State is correct.
   [5] In State v. Huggins,12 we held “the issuance of a mandate
by a Nebraska appellate court is a definitive determination of
the ‘conclusion of a direct appeal,’ and the ‘date the judgment
of conviction became final,’ for purposes of § 29-3001(4)(a).”
State v. Huggins observed that when a criminal conviction
is appealed, this court has often indicated the finality of the
judgment is tied to the issuance of a final mandate,13 and that

10
     Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016 & Cum. Supp. 2018).
11
     See State v. Edwards, 301 Neb. 579, 919 N.W.2d 530 (2018).
12
     State v. Huggins, 291 Neb. 443, 450, 866 N.W.2d 80, 85 (2015).
13
     Huggins, supra note 12, citing State v. Davis, 277 Neb. 161, 762 N.W.2d
     287 (2009); State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003); State
     v. White, 256 Neb. 536, 590 N.W.2d 863 (1999); and State v. Urbano, 256
     Neb. 194, 589 N.W.2d 144 (1999).
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“[u]nder Nebraska law and procedure, the issuance of a man-
date by an appellate court is a clear signal that a direct appeal
has been concluded.”14 Since our decision in Huggins, both this
court and the Court of Appeals have applied the rule that 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.15
   Here, it is undisputed that the Court of Appeals issued its
mandate on June 28, 2016, and under our case law, that is
the date on which Koch’s judgment of conviction became
final by the conclusion of his direct appeal for purposes of
§ 29-3001(4)(a). Koch filed his postconviction motion on
July 19, 2017, more than 1 year after the date the mandate
was issued by the appellate court. As such, his postconviction
motion was time barred under § 29-3001(4)(a).
                      V. CONCLUSION
   We do not reach Koch’s assignments of error on appeal
because we find merit in the State’s cross-appeal. We conclude
Koch’s postconviction motion was filed outside the 1-year
limitations period under § 29-3001(4)(a) and was time barred.
We therefore affirm the district court’s order of September 18,
2018, dismissing Koch’s postconviction motion, albeit on dif-
ferent grounds.
                                                     A ffirmed.
   Heavican, C.J., and Funke and Freudenberg, JJ., not
participating.

14
     Huggins, supra note 12, 291 Neb. at 449, 866 N.W.2d at 85.
15
     See, State v. Shannon, 293 Neb. 303, 876 N.W.2d 907 (2016); State v.
     Liner, 26 Neb. App. 303, 917 N.W.2d 194 (2018).