Dugan v. State , 297 Neb. 444 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    08/18/2017 01:08 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    DUGAN v. STATE
    Cite as 
    297 Neb. 444
    Michael M arvin Dugan, appellant, v.
    State of Nebraska et al., appellees.
    ___ N.W.2d ___
    Filed August 11, 2017.   No. S-16-421.
    1.	 Actions: Habeas Corpus: Collateral Attack: Appeal and Error. As
    only a void judgment is subject to attack in a habeas corpus action, an
    appellate court is limited in such a case to reviewing a question of law,
    namely, Is the judgment in question void?
    2.	 Judgments: Appeal and Error. To the extent questions of law are
    involved, an appellate court is obligated to reach conclusions indepen-
    dent of the decisions reached by the court below.
    3.	 Habeas Corpus: Judgments: Convictions: Collateral Attack. Habeas
    corpus is a proper means of collaterally attacking the validity of an
    allegedly void judgment of conviction.
    4.	 Judgments: Jurisdiction: Final Orders: Appeal and Error. An appeal
    is not perfected and an appellate court acquires no jurisdiction unless the
    appellant has satisfied the statutory requirements for appellate jurisdic-
    tion by appealing from a final order or a judgment.
    5.	 Final Orders: Appeal and Error. An order is final for purposes of
    appeal under Neb. Rev. Stat. § 25-1902 (Reissue 2016) if it affects a
    substantial right and (1) determines the action and prevents a judgment,
    (2) is made during a special proceeding, or (3) is made on summary
    application in an action after judgment is rendered.
    6.	 Criminal Law: Pretrial Procedure: Appeal and Error. Generally, for
    a pretrial order in criminal cases to be immediately appealable, it must
    involve a right not to be tried as opposed to a right not to be convicted.
    7.	 Final Orders: Pleadings. How a motion should be regarded for pur-
    poses of determining whether its denial is a final order depends upon the
    substance of the motion and not its title.
    8.	 Arrests: Extradition and Detainer: Trial. The unlawfulness of the
    means of arrest or extradition from another state does not impair the
    power of a court to try an accused.
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    DUGAN v. STATE
    Cite as 
    297 Neb. 444
    Appeal from the District Court for Lancaster County: Steven
    D. Burns, Judge. Affirmed.
    Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
    Douglas J. Peterson, Attorney General, and Kimberly A.
    Klein for appellees.
    Heavican, C.J., Wright, Miller-Lerman, Stacy, K elch, and
    Funke, JJ.
    Wright, J.
    NATURE OF CASE
    Trial proceeded while the defendant’s appeal from the
    denial of his motion for absolute discharge was pending with
    the Nebraska Court of Appeals. The motion was based on
    the allegations that the defendant’s arrest warrant was defec-
    tive and that his extradition was procedurally improper. After
    the defendant was convicted and sentenced, the appeal from
    the denial of the motion for absolute discharge was volun-
    tarily dismissed. The conviction and sentence were affirmed
    on direct appeal. In his action for habeas corpus relief, the
    defendant now claims that the trial court lacked jurisdiction
    to continue with his trial while his appeal from the denial of
    the motion for absolute discharge was pending. He therefore
    asserts that his conviction and sentence are void.
    BACKGROUND
    Underlying Charges
    Michael Marvin Dugan was arrested in Wyoming under
    what the sheriff’s department believed to be a valid Nebraska
    warrant, but the warrant was not issued until after Dugan
    was taken into custody. Dugan waived extradition and was
    returned to Nebraska. In July 2006, Dugan was charged in the
    district court for Cheyenne County (the trial court) with one
    count of theft by unlawful taking.
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    DUGAN v. STATE
    Cite as 
    297 Neb. 444
    Excessive Bail A ppeal
    Dugan moved to reduce his bail pending trial, alleging it
    was excessive. The motion was overruled. On May 25, 2007,
    Dugan appealed the denial of his motion to reduce his bail to
    the Court of Appeals.
    On June 21, 2007, the Court of Appeals dismissed the
    appeal for lack of jurisdiction, explaining that under State v.
    Kula,1 the order appealed from was not final. The mandate of
    dismissal issued on July 27 and was filed with the trial court
    on August 2.2
    Federal H abeas Action
    On June 26, 2007, Dugan filed an application for a writ
    of habeas corpus in the U.S. District Court for the District
    of Nebraska. The application alleged that his arrest warrant
    was defective and that he was extradited without proper pro-
    cedure. Dugan further alleged that his bail was excessive and
    that the trial court had erred in refusing to stay the criminal
    proceedings pending his appeal of the allegedly excessive
    bail. Dugan asked the federal district court to stay his trial
    and determine the legality of his restraint, as well as to fix a
    reasonable bail.
    A bsolute Discharge Motion
    and A ppeal
    While the federal habeas action was still pending, Dugan
    filed with the trial court a motion for absolute discharge
    for violation of his constitutional rights. Dugan alleged
    that his arrest warrant was defective and that his extradi-
    tion was procedurally improper. The trial court denied the
    motion, and on October 3, 2007, Dugan appealed to the Court
    of Appeals.
    1
    State v. Kula, 
    254 Neb. 962
    , 
    579 N.W.2d 541
    (1998).
    2
    See State v. Dugan, 
    15 Neb. Ct. App. lxxxix
    (No. A-07-584, June 21, 2007).
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    DUGAN v. STATE
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    297 Neb. 444
    Trial Verdict
    Trial proceeded while Dugan’s federal habeas action and his
    appeal to the Court of Appeals from the denial of his motion
    for absolute discharge were pending. Dugan was found guilty
    on October 5, 2007, and was sentenced as a habitual criminal
    on December 14. He was committed to the Department of
    Correctional Services on December 17.
    Voluntary Dismissal of A bsolute
    Discharge A ppeal
    On January 10, 2008, Dugan filed a stipulation jointly with
    the State to dismiss his appeal to the Court of Appeals of the
    district court’s denial of his motion for absolute discharge, for
    the reason that it was interlocutory. The mandate of dismissal
    issued on January 16.
    Direct A ppeal
    On direct appeal from his conviction and sentence, Dugan
    presented 23 assignments of error. They included allegations
    that he was illegally arrested and improperly extradited. The
    Court of Appeals affirmed the conviction and sentence. With
    regard to the arrest and extradition, the Court of Appeals
    stated that considerations as to the method of obtaining juris-
    diction over a criminal defendant were not relevant to the
    power of a court to try an accused. We denied Dugan’s petition
    for further review.
    State H abeas Action
    After his direct appeal was unsuccessful, Dugan filed an
    application in the district court for Lancaster County for a writ
    of habeas corpus. Dugan alleged that his conviction and sen-
    tence were void because his trial had occurred while the court
    was divested of jurisdiction due to the pendency of his appeals
    from the denial of his motion for discharge and from the denial
    of his motion to reduce excessive bail.
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    DUGAN v. STATE
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    The court dismissed with prejudice Dugan’s application for
    a writ of habeas corpus relief. As to the court’s jurisdiction
    during the pendency of the bail appeal, the court reasoned
    that because the Court of Appeals never acquired jurisdic-
    tion over the interlocutory appeal of the nonfinal order, the
    trial court never lost jurisdiction. As to the court’s jurisdic-
    tion during the pendency of the absolute discharge appeal,
    the court similarly said that the arrest and extradition issues
    presented in the absolute discharge motion did not affect a
    substantial right. Therefore, the order was not final and the
    interlocutory appeal therefrom did not deprive the trial court
    of jurisdiction.
    Dugan appeals the dismissal of his habeas action.
    ASSIGNMENTS OF ERROR
    Dugan assigns that the district court erred in denying
    habeas corpus relief because (1) his sentence is void because
    the trial court tried, convicted, and sentenced him during the
    pendency of an appeal that divested the trial court of jurisdic-
    tion and (2) the Court of Appeals erred in citing the wrongly
    decided case State v. Kula and failed to properly exercise its
    jurisdiction to hear Dugan’s appeal from the trial court’s order
    denying his motion to reduce excessive bail.
    STANDARD OF REVIEW
    [1] As only a void judgment is subject to attack in a habeas
    corpus action, an appellate court is limited in such a case to
    reviewing a question of law, namely, Is the judgment in ques-
    tion void?3
    [2] To the extent questions of law are involved, an appel-
    late court is obligated to reach conclusions independent of the
    decisions reached by the court below.4
    3
    Garza v. Kenney, 
    264 Neb. 146
    , 
    646 N.W.2d 579
    (2002).
    4
    
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    Nebraska Supreme Court A dvance Sheets
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    DUGAN v. STATE
    Cite as 
    297 Neb. 444
    ANALYSIS
    Before we moved the case to our docket, the Court of
    Appeals summarily rejected Dugan’s second assignment of
    error, that he was entitled to habeas corpus relief because the
    trial court was divested of jurisdiction during the pendency of
    his appeal from the motion to reduce bail. We also summarily
    reject Dugan’s second assignment of error. We next address
    Dugan’s assignment of error that he was entitled to habeas
    corpus relief because the trial court lacked jurisdiction during
    the pendency of his appeal from the denial of his motion for
    absolute discharge.
    [3] Habeas corpus is a proper means of collaterally attack-
    ing the validity of an allegedly void judgment of conviction.5
    Nebraska case law generally holds that once an appeal has
    been perfected, the trial court is divested of its jurisdiction
    to hear a case involving the same matter between the same
    parties.6 And with the exception of limited acts of continuing
    jurisdiction not applicable here, all proceedings in the district
    court while a perfected appeal is pending are void for lack
    of jurisdiction.7
    [4] But an appeal is not perfected and an appellate court
    acquires no jurisdiction unless the appellant has satisfied the
    statutory requirements for appellate jurisdiction by appeal-
    ing from a final order or a judgment.8 In a criminal case, the
    5
    See, Bradley v. Hopkins, 
    246 Neb. 646
    , 
    522 N.W.2d 394
    (1994); Neb. Rev.
    Stat. § 29-2801 (Reissue 2008).
    6
    In re Interest of Becka P. et al., 
    296 Neb. 365
    , 
    894 N.W.2d 247
    (2017).
    7
    See, State v. Rieger, 
    257 Neb. 826
    , 
    600 N.W.2d 831
    (1999); State v.
    Moore, 
    186 Neb. 71
    , 
    180 N.W.2d 888
    (1970); Jenkins v. Campbell, 
    76 Neb. 138
    , 
    107 N.W. 221
    (1906). Compare, e.g., Spady v. Spady, 
    284 Neb. 885
    , 
    824 N.W.2d 366
    (2012).
    8
    See Heckman v. Marchio, 
    296 Neb. 458
    , 
    894 N.W.2d 296
    (2017).
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    DUGAN v. STATE
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    j­udgment is the sentence.9 The question here is whether the
    trial court’s denial of Dugan’s motion for absolute discharge
    was a final order.
    [5] An order is final for purposes of appeal under Neb. Rev.
    Stat. § 25-1902 (Reissue 2016) if it affects a substantial right
    and (1) determines the action and prevents a judgment, (2) is
    made during a special proceeding, or (3) is made on summary
    application in an action after judgment is rendered.10
    Numerous factors determine when an order affects a sub-
    stantial right for purposes of appeal.11 Broadly, these factors
    relate to the importance of the right and the importance of the
    effect on the right by the order at issue.12 It is not enough that
    the right itself be substantial; the effect of the order on that
    right must also be substantial.13
    We have said that an order affects a substantial right if it
    affects the subject matter of the litigation, such as diminishing
    a claim or defense that was available to the appellant prior to
    the order from which he or she is appealing.14 We have also
    said that in order for the order to have a substantial effect on
    the substantial right, it is fundamental that the right is sig-
    nificantly undermined or irrevocably lost by postponing appel-
    late review.15
    9
    State v. Nelson, 
    276 Neb. 997
    , 
    759 N.W.2d 260
    (2009). See, also, State v.
    Hess, 
    261 Neb. 368
    , 
    622 N.W.2d 891
    (2001).
    10
    Ginger Cove Common Area Co. v. Wiekhorst, 
    296 Neb. 416
    , 
    893 N.W.2d 467
    (2017).
    11
    In re Interest of Noah B. et al., 
    295 Neb. 764
    , 
    891 N.W.2d 109
    (2017).
    12
    
    Id. 13 Id.
    14
    See State v. Bluett, 
    295 Neb. 369
    , 
    889 N.W.2d 83
    (2016).
    15
    See 
    id. See, also,
    e.g., In re Interest of Sandrino T., 
    295 Neb. 270
    , 
    888 N.W.2d 371
    (2016).
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    DUGAN v. STATE
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    Though Dugan characterized his motion as a motion for
    absolute discharge, motions for absolute discharge are made
    on speedy trial grounds.16 Section Neb. Rev. Stat. § 29-1208
    (Reissue 2008) mandates:
    If a defendant is not brought to trial before the run-
    ning of the time for trial as provided for in [the speedy
    trial act] . . . he or she shall be entitled to his or her
    absolute discharge from the offense charged and for
    any other offense required by law to be joined with
    that offense.
    We have held that to the extent Nebraska’s speedy trial
    statutes17 confer a right to a speedy trial and authorize a spe-
    cial application to obtain judicial enforcement of that right,
    a ruling on a motion for absolute discharge based upon an
    accused criminal’s nonfrivolous claim that his or her speedy
    trial rights were violated is a ruling affecting a substan-
    tial right made during a special proceeding and is therefore
    final and appealable.18 We have reasoned that the ruling on
    16
    See, e.g., State v. Hettle, 
    288 Neb. 288
    , 
    848 N.W.2d 582
    (2014); State
    v. Brooks, 
    285 Neb. 640
    , 
    828 N.W.2d 496
    (2013); State v. Williams, 
    277 Neb. 133
    , 
    761 N.W.2d 514
    (2009); State v. Feldhacker, 
    267 Neb. 145
    ,
    
    672 N.W.2d 627
    (2004); State v. Knudtson, 
    262 Neb. 917
    , 
    636 N.W.2d 379
    (2001); State v. Gibbs, 
    253 Neb. 241
    , 
    570 N.W.2d 326
    (1997); State
    v. Sumstine, 
    239 Neb. 707
    , 
    478 N.W.2d 240
    (1991); State v. Alvarez, 
    189 Neb. 281
    , 
    202 N.W.2d 604
    (1972); State v. Johnson, 
    22 Neb. Ct. App. 747
    ,
    
    860 N.W.2d 222
    (2015); State v. Vela-Montes, 
    19 Neb. Ct. App. 378
    , 
    807 N.W.2d 544
    (2011); State v. Shipler, 
    17 Neb. Ct. App. 66
    , 
    758 N.W.2d 41
          (2008); State v. Vasquez, 
    16 Neb. Ct. App. 406
    , 
    744 N.W.2d 500
    (2008); In re
    Interest of Britny S., 
    11 Neb. Ct. App. 704
    , 
    659 N.W.2d 831
    (2003); State v.
    Castillo, 
    11 Neb. Ct. App. 622
    , 
    657 N.W.2d 650
    (2003); State v. Washington,
    
    11 Neb. Ct. App. 598
    , 
    658 N.W.2d 302
    (2003); State v. Hayes, 
    10 Neb. Ct. App. 833
    , 
    639 N.W.2d 418
    (2002); State v. Dailey, 
    10 Neb. Ct. App. 793
    , 
    639 N.W.2d 141
    (2002).
    17
    Neb. Rev. Stat. §§ 29-1201 to 29-1209 (Reissue 2008).
    18
    See, State v. Williams, supra note 16; State v. Jacques, 
    253 Neb. 247
    , 
    570 N.W.2d 331
    (1997); State v. Gibbs, supra note 16.
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    a motion to discharge affects a substantial right, because
    the rights conferred on an accused criminal by §§ 29-1207
    and 29-1208 would be significantly undermined if appellate
    review of nonfrivolous speedy trial claims were postponed
    until after conviction and sentence. We have compared this to
    the manner in which rights of an accused criminal would be
    undermined if appellate review of the denial of a plea in bar
    in double jeopardy claims were postponed until after convic-
    tion and sentence.19
    [6] We have explained that both involve a right not to be
    tried.20 This is in line with federal decisions that generally hold
    in criminal cases that in order for a pretrial order to be imme-
    diately appealable, it must involve a right not to be tried as
    opposed to a right not to be convicted.21
    We have also noted that an interlocutory appeal based
    on a claimed denial of statutory speedy trial rights involves
    a relatively simple mathematical computation of whether
    the 6-month speedy trial clock, as extended by statutorily
    excludable periods, has expired prior to the commencement
    of trial.22
    [7] Dugan’s motion for absolute discharge based on the
    alleged unlawfulness of his arrest and extradition bears no
    resemblance to a motion for absolute discharge based on the
    statutory right to a speedy trial. How a motion should be
    regarded for purposes of determining whether its denial is a
    final order depends upon the substance of the motion and not
    its title.23
    19
    
    Id. 20 See
    State v. Williams, supra note 16.
    21
    See, e.g., Flanagan v. United States, 
    465 U.S. 259
    , 
    104 S. Ct. 1051
    , 79 L.
    Ed. 2d 288 (1984); U.S. v. Saccoccia, 
    18 F.3d 795
    (9th Cir. 1994).
    22
    See State v. Williams, supra note 16.
    23
    See State v. Loyd, 
    269 Neb. 762
    , 
    696 N.W.2d 860
    (2005).
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    In State v. Loyd,24 we held that the denial of the defendant’s
    motion to quash based on a statute of limitations defense,
    which the defendant had styled as a “‘motion to discharge,’”
    was not a final order. We explained that the denial of that
    motion did not diminish a defense previously available to him,
    because he could continue to challenge through his not guilty
    plea the sufficiency of the evidence to prove that the charges
    were filed within the period specified by the applicable statute
    of limitations.25
    [8] Similarly, we will not treat this motion as one for abso-
    lute discharge simply because of its title. And, as the Court of
    Appeals discussed in its opinion on direct appeal, the allega-
    tions in Dugan’s motion could not legally support absolute
    discharge. The unlawfulness of the means of arrest or extradi-
    tion from another state does not impair the power of a court
    to try an accused.26 The allegations of unlawful arrest and
    extradition do not involve a right not to be tried.
    Rather, the illegality of an arrest gives rise only to “col-
    lateral” rights and remedies in the underlying criminal action,
    such as the exclusionary rule.27 Those collateral rights and
    remedies are effectively vindicated on appeal from the judg-
    ment.28 Other rights at issue in an allegedly unlawful arrest
    24
    
    Id. at 770,
    696 N.W.2d at 868.
    25
    See State v. Loyd, supra note 23. See, also, State v. Nuss, 
    235 Neb. 107
    ,
    
    454 N.W.2d 482
    (1990).
    26
    See, State v. Tingle, 
    239 Neb. 558
    , 
    477 N.W.2d 544
    (1991); State v. Smith,
    
    207 Neb. 263
    , 
    298 N.W.2d 162
    (1980); State v. Knudsen, 
    201 Neb. 584
    ,
    
    270 N.W.2d 926
    (1978); State v. Costello, 
    199 Neb. 43
    , 
    256 N.W.2d 97
          (1977); Maddox v. Sigler, 
    181 Neb. 690
    , 
    150 N.W.2d 251
    (1967); Jackson
    v. Olson, 
    146 Neb. 885
    , 
    22 N.W.2d 124
    (1946). See, also, Pettibone v.
    Nichols, 
    203 U.S. 192
    , 
    27 S. Ct. 111
    , 
    51 L. Ed. 148
    (1906); Mahon v.
    Justice, 
    127 U.S. 700
    , 
    8 S. Ct. 1204
    , 
    32 L. Ed. 283
    (1888).
    27
    State v. Masat, 
    239 Neb. 849
    , 852, 
    479 N.W.2d 131
    , 133 (1992).
    28
    See cases cited supra note 26.
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    or extradition may be vindicated through a civil rights action
    under 42 U.S.C. § 1983 (2012).29
    Simply put, the trial court’s ruling pertaining to the allega-
    tions of unlawful arrest and extradition in Dugan’s motion
    for absolute discharge did not affect the subject matter of the
    underlying criminal litigation. As such, the district court’s
    order did not affect a substantial right. The order, therefore,
    was not final, and Dugan’s interlocutory appeal therefrom
    did not deprive the trial court of jurisdiction to proceed with
    Dugan’s trial, conviction, and sentencing.
    The district court correctly denied Dugan’s application for
    a writ of habeas corpus relief. We find no merit to Dugan’s
    contention that the underlying criminal judgment against him
    was void. Because the trial court’s denial of his motion for
    absolute discharge was not a final order, the trial court was
    not divested of jurisdiction when Dugan filed this interlocu-
    tory appeal.
    CONCLUSION
    For the foregoing reasons, the judgment of the district court
    is affirmed.
    A ffirmed.
    Cassel, J., participating on briefs.
    29
    See, Annot., 45 A.L.R. Fed. 871 (1979); Annot., 1 A.L.R. Fed. 519 (1969).