State v. Thalmann , 302 Neb. 110 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/08/2019 08:06 AM CST
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. THALMANN
Cite as 302 Neb. 110State of Nebraska, appellee, v.
Donald R. Thalmann, appellant.
___ N.W.2d ___
Filed January 25, 2019. No. S-18-111.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
that does not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court to reach a
conclusion independent of the lower court’s decision.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
3. Final Orders: Appeal and Error. Numerous factors have been set
forth defining when an order affects a substantial right. Broadly, these
factors relate to the importance of the right and the importance of the
effect on the right by the order at issue. It is not enough that the right
itself be substantial; the effect of the order on that right must also
be substantial.
4. Words and Phrases. A substantial right is an essential legal right, not
merely a technical right.
5. Final Orders: Appeal and Error. 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.
Appeal from the District Court for Lancaster County: Jodi L.
Nelson, Judge. Appeal dismissed.
Joseph D. Nigro, Lancaster County Public Defender, and
Matthew F. Meyerle for appellant.
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STATE v. THALMANN
Cite as 302 Neb. 110Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
Donald R. Thalmann was serving a sentence of probation
following a conviction for possession of a controlled sub-
stance. After several positive drug and alcohol screens, his
probation officer sought the imposition of a custodial sanc-
tion. The district court imposed a 15-day custodial sanction.
Thalmann appeals. We dismiss Thalmann’s appeal.
BACKGROUND
Thalmann was convicted of possession of a controlled sub-
stance, a Class IV felony, and sentenced to a term of 3
years’ probation. Just 2 months into that term of probation,
Thalmann’s probation officer sought the imposition of a cus-
todial sanction. A hearing was held on the motion for a custo-
dial sanction.
At that hearing, the State offered the testimony of Thalmann’s
probation officer and various exhibits in support of the request
for a custodial sanction. The district court granted the motion
and imposed a custodial sanction of 15 days’ imprisonment.
ASSIGNMENTS OF ERROR
On appeal, Thalmann assigns that the district court erred in
(1) considering exhibits 2 and 7 through 9, because receipt of
those exhibits violated Thalmann’s due process rights, and (2)
finding there was sufficient evidence to support a finding that
Thalmann violated the terms of his probation.
STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law,
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302 Nebraska R eports
STATE v. THALMANN
Cite as 302 Neb. 110which requires the appellate court to reach a conclusion inde-
pendent of the lower court’s decision.1
ANALYSIS
[2] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether
it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.2 After reviewing the
record, we conclude that we lack appellate jurisdiction because
Thalmann has not appealed from a final order.
Neb. Rev. Stat. § 25-1911 (Reissue 2016) gives appellate
courts jurisdiction to review “[a] judgment rendered or final
order made by the district court . . . for errors appearing on
the record.” For purposes of appellate jurisdiction, “[a] judg-
ment is the final determination of the rights of the parties in
an action.”3 “Any proceeding in a court by which a party pros-
ecutes another for enforcement, protection, or determination
of a right or the redress or prevention of a wrong involving
and requiring the pleadings, process, and procedure provided
by the code and ending in a final judgment is an action.”4 In
a criminal case, the judgment from which the appellant may
appeal is the sentence.5 Here, the sentence was the placement
of Thalmann on probation.
Because the order from which Thalmann attempts to appeal
was not a judgment, we must consider whether it was a final
order. Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the
three types of final orders which may be reviewed on appeal
are (1) an order affecting a substantial right in an action that,
1
Simms v. Friel, ante p. 1, ___ N.W.2d ___ (2019).
2
Last Pass Aviation v. Western Co-op Co., 296 Neb. 165, 892 N.W.2d 108(2017).
3
Neb. Rev. Stat. § 25-1301(1) (Reissue 2016).
4
Rehn v. Bingaman, 157 Neb. 467, 479, 59 N.W.2d 614, 620 (1953).
5
State v. Ratumaimuri, 299 Neb. 887, 911 N.W.2d 270 (2018).
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STATE v. THALMANN
Cite as 302 Neb. 110in effect, determines the action and prevents a judgment; (2)
an order affecting a substantial right made during a special
proceeding; and (3) an order affecting a substantial right
made on summary application in an action after a judgment
is rendered. We have not previously opined on the finality of
an order imposing a custodial sanction. Because such a sanc-
tion is common to all three categories of a final order under
§ 25-1902, we turn first to whether this order affects a sub-
stantial right.
[3] Numerous factors have been set forth defining when an
order affects a substantial right. Broadly, these factors relate
to the importance of the right and the importance of the effect
on the right by the order at issue.6 It is not enough that the
right itself be substantial; the effect of the order on that right
must also be substantial.7
[4,5] Regarding the importance of the right affected, we
often state that a substantial right is an essential legal right,
not merely a technical right.8 It is a right of “‘substance.’”9
We have elaborated further 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 appel-
lant prior to the order from which he or she is appealing.’”10
Whether the effect of an order is substantial depends on
“‘whether it affects with finality the rights of the parties in
the subject matter.’”11 This aspect of “‘affecting a substan-
tial right’” also depends on whether the right could other-
wise be effectively vindicated.12 An order affects a substantial
6
State v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (2015).
7
Id.8
Id.9
Id. at 913, 870 N.W.2d at 138.
10
Id. at 914, 870 N.W.2d at 138.
11
Id.
12
Id.
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STATE v. THALMANN
Cite as 302 Neb. 110right when the right would be “‘significantly undermined’”
or “‘irrevocably lost’” by postponing appellate review.13 The
duration of the order is relevant to whether its effect on the
substantial right is substantial.14
This case presents two distinct rights that are affected by
the order imposing a custodial sanction of 15 days’ imprison-
ment. The first is Thalmann’s liberty interest. The second is
Thalmann’s right to not have his probation revoked, a pos-
sible consequence because, under Neb. Rev. Stat. § 29-2267(3)
(Reissue 2016), revocation proceedings may be instituted
against him “in response to a substance abuse or noncriminal
violation if the probationer has served ninety days of cumula-
tive custodial sanctions during the current probation term.”
The second right—the possibility of the revocation of his
probation—is not a substantial right. The imposition of 15
days toward the 90 days after which Thalmann’s revocation
proceeding might be instituted is speculative. Thalmann might
not have further days of custodial sanction imposed, the State
might not choose to institute revocation proceedings, or the
court might deny any request to revoke probation. This right is
not an essential right, but is a mere technical right.
Moreover, this right would not be significantly undermined
or irrevocably lost if it is not reviewed at this time, because
that right is not at risk as a result of this order. Should proceed-
ings to revoke Thalmann’s probation be instituted at a later
date, the merits of this custodial sanction could be addressed in
an appeal from those proceedings.
Having concluded that the second right is not substantial, we
turn to the first right—Thalmann’s liberty interest. We likewise
conclude that on these facts, such is not a substantial right.
First, this order does not affect Thalmann’s custodial sta-
tus under Nebraska law. When Thalmann was sentenced to
13
Id.14
State v. Jackson, supra note 6.
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STATE v. THALMANN
Cite as 302 Neb. 110probation, he was in custody for purposes of Nebraska law.15
Even after the entry of the district court’s order, Thalmann
remains on probation. The imposition of the custodial sanction
does not change his status as being in custody—it simply mod-
ifies the nature of that custody. During his postrelease supervi-
sion, Thalmann was always subject to a custodial sanction.
Moreover, the custodial sanction imposed in this case was
just 15 days—a relatively brief modification in the nature of
his custody. Orders of a temporary nature are often not final,
because the temporary nature of the order prevents it from sub-
stantially affecting an individual’s rights.16
Because we conclude that the order imposing a custodial
sanction did not affect a substantial right, Thalmann does not
appeal from a final order. Accordingly, we must dismiss his
appeal for lack of jurisdiction.
CONCLUSION
The order imposing a custodial sanction does not affect
a substantial right and is not final. Accordingly, Thalmann’s
appeal is dismissed.
A ppeal dismissed.
15
Cf. State v. Styskal, 242 Neb. 26, 493 N.W.2d 313 (1992).
16
See, e.g., In re Interest of Zachary B., 299 Neb. 187, 907 N.W.2d 311(2018); State v. Jackson, supra note 6; In re Interest of Danaisha W. et al.,
287 Neb. 27, 840 N.W.2d 533 (2013); In re Guardianship of Sophia M.,
271 Neb. 133, 710 N.W.2d 312 (2006); In re Interest of T.T., 18 Neb. App.
176, 779 N.W.2d 602 (2009).