State v. Barnes , 303 Neb. 167 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    06/28/2019 12:06 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    303 Nebraska R eports
    STATE v. BARNES
    Cite as 
    303 Neb. 167
    State of Nebraska, appellee, v.
    R ichard C. Barnes, appellant.
    ___ N.W.2d ___
    Filed May 17, 2019.     No. S-18-875.
    1. Judgments: Appeal and Error. When dispositive issues on appeal
    present questions of law, an appellate court has an obligation to reach
    an independent conclusion irrespective of the decision made by the
    court below.
    2. Criminal Law: Judgments: Sentences: Appeal and Error. In a
    criminal case, the judgment from which the appellant may appeal is
    the sentence.
    3. Judgments: Collateral Attack. When a judgment is attacked in a
    way other than by proceeding in the original action to have it vacated,
    reversed, or modified, or by a proceeding in equity to prevent its
    enforcement, the attack is a collateral attack.
    4. ____: ____. Absent an explicit statutory or common-law authority per-
    mitting collateral attack upon a criminal judgment under other circum-
    stances, only a void judgment may be collaterally attacked.
    5. Sentences. A sentence outside of the period authorized for a valid crime
    is erroneous only; it is not a void sentence.
    6. ____. Failing to give credit for time served, while erroneous, does not
    render the sentence void.
    7. Criminal Law: Final Orders: Sentences: Collateral Attack. 
    Neb. Rev. Stat. § 83-1
    ,106(1) (Reissue 2014) does not set forth a right to col-
    laterally attack the final judgment in a criminal case on the ground that
    credit for time served was not given as mandated by the statute.
    Appeal from the District Court for Pierce County: James G.
    Kube, Judge. Affirmed.
    Richard C. Barnes, pro se.
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    Nebraska Supreme Court A dvance Sheets
    303 Nebraska R eports
    STATE v. BARNES
    Cite as 
    303 Neb. 167
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    NATURE OF CASE
    The defendant, who was sentenced in 1994, sought in 2018
    to have his sentence amended to reflect credit for time served
    by filing a “Motion/Request for Jail Credit.” The district court
    denied the motion, and the defendant appeals. We affirm.
    BACKGROUND
    In 1994, pursuant to a voluntary guilty plea, Richard C.
    Barnes was convicted on one count of first degree murder
    and one count of use of a weapon to commit a felony. He
    was sentenced to life imprisonment on the murder conviction
    and from 62⁄3 years’ to 20 years’ imprisonment on the use of a
    weapon conviction. The court did not give Barnes credit for
    time served.
    Barnes did not file a direct appeal. In 2004, Barnes filed
    an amended motion seeking postconviction relief. He argued
    that defense counsel was ineffective by failing to file a direct
    appeal after Barnes requested that he do so. Barnes also argued
    that he had been denied due process and equal protection of
    the law, because the sentencing court failed to give him credit
    for time served against his sentence on the use of a weapon
    conviction. After an evidentiary hearing, Barnes’ motion for
    postconviction relief was denied.
    In State v. Barnes,1 we affirmed the order denying post-
    conviction relief. We held that the court did not clearly err
    in finding that Barnes did not ask his trial counsel to file a
    direct appeal. We thus affirmed the district court’s conclusion
    that defense counsel’s performance in failing to file a direct
    1
    State v. Barnes, 
    272 Neb. 749
    , 
    724 N.W.2d 807
     (2006).
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    STATE v. BARNES
    Cite as 
    303 Neb. 167
    appeal was not deficient. Regarding Barnes’ challenges to
    the sentencing order that failed to give Barnes credit for time
    served, we held that those challenges were procedurally barred
    because they could have been raised on direct appeal.
    In 2018, Barnes, proceeding pro se, filed a “Motion/Request
    for Jail Credit Pursuant to N.R.S. sec: 83-1,106(1). State v.
    Esquinel, 
    244 Neb. 308
     (1993).” The district court denied the
    motion, reasoning that it had no authority to amend the 1994
    sentencing order. Barnes appeals.
    ASSIGNMENT OF ERROR
    Barnes assigns that the “lower District Court erred in failing
    at the conclusion of the sentencing hearing by the failure of
    the district court to calculate the amount of credit to be given
    for time served.”
    STANDARD OF REVIEW
    [1] When dispositive issues on appeal present questions
    of law, an appellate court has an obligation to reach an inde-
    pendent conclusion irrespective of the decision made by the
    court below.2
    ANALYSIS
    Barnes argues that we should recognize the trial court plainly
    erred in failing to grant him credit for time served and that we
    should, as in the case of State v. Groff,3 remand the cause to
    the district court for a determination of credit for time served.
    State v. Groff, however, involved the direct appeal from the
    defendant’s convictions and sentences. This case involves a
    collateral attack.
    [2-4] In a criminal case, the judgment from which the appel-
    lant may appeal is the sentence.4 The sentence includes credit
    for time served under 
    Neb. Rev. Stat. § 83-1
    ,106(1) (Reissue
    2
    State v. Jerke, 
    302 Neb. 372
    , 
    923 N.W.2d 78
     (2019).
    3
    State v. Groff, 
    247 Neb. 586
    , 
    529 N.W.2d 50
     (1995).
    4
    State v. Ratumaimuri, 
    299 Neb. 887
    , 
    911 N.W.2d 270
     (2018).
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    STATE v. BARNES
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    303 Neb. 167
    2014).5 When a judgment is attacked in a way other than by
    proceeding in the original action to have it vacated, reversed,
    or modified, or by a proceeding in equity to prevent its enforce-
    ment, the attack is a collateral attack.6 Absent an explicit statu-
    tory or common-law procedure permitting otherwise, only a
    void judgment may be collaterally attacked.7
    [5,6] A sentence outside of the period authorized for a valid
    crime is erroneous only; it is not a void sentence.8 Thus, failing
    to give credit for time served, while erroneous, does not render
    the sentence void.9
    [7] Barnes fails to present statutory or common-law author-
    ity for his 2018 motion collaterally attacking the erroneous,
    but not void, sentence rendered in 1994. Barnes purported
    to bring his motion under the authority of § 83-1,106(1) and
    State v. Esquivel.10 Section 83-1,106(1) provides that “[c]redit
    against the maximum term and any minimum term shall be
    given to an offender for time spent in custody as a result of
    the criminal charge for which a prison sentence is imposed or
    as a result of the conduct on which such a charge is based.”
    Section 83-1,106(1) does not set forth a right to collaterally
    attack the final judgment in a criminal case on the ground
    that credit for time served was not given as mandated by the
    statute. While we held in State v. Esquivel that a judge is
    5
    See, State v. Barnes, supra note 1; State v. Groff, 
    supra note 3
    .
    6
    State v. Ratumaimuri, 
    supra note 4
    .
    7
    See Sanders v. Frakes, 
    295 Neb. 374
    , 
    888 N.W.2d 514
     (2016). See, also,
    State v. Jerke, 
    supra note 2
    ; State v. Robertson, 
    294 Neb. 29
    , 
    881 N.W.2d 864
     (2016); State v. Erpelding, 
    292 Neb. 351
    , 
    874 N.W.2d 265
     (2015);
    State v. Gonzalez, 
    285 Neb. 940
    , 
    830 N.W.2d 504
     (2013); State v. Smith,
    
    269 Neb. 773
    , 
    696 N.W.2d 871
     (2005).
    8
    See Meyer v. Frakes, 
    294 Neb. 668
    , 
    884 N.W.2d 131
     (2016). See, also,
    e.g., Hickman v. Fenton, 
    120 Neb. 66
    , 
    231 N.W. 510
     (1930); In re Fanton,
    
    55 Neb. 703
    , 
    76 N.W. 447
     (1898).
    9
    See State v. Barnes, supra note 1.
    10
    State v. Esquivel, 
    244 Neb. 308
    , 
    505 N.W.2d 736
     (1993).
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    STATE v. BARNES
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    303 Neb. 167
    required to separately determine, state, and grant the amount
    of credit on the defendant’s sentence to which the defendant
    is entitled under § 83-1,106(1), that case, like State v. Groff,
    was decided on direct appeal and does not provide authority
    for collaterally attacking a sentence that fails to grant credit
    for time served.
    There is no authority for Barnes’ collateral attack on the
    1994 judgment through a motion for jail credit. Thus, the dis-
    trict court did not err in denying Barnes’ motion.
    CONCLUSION
    For the foregoing reasons, we affirm the order of the dis-
    trict court.
    A ffirmed.