State v. Washington , 301 Neb. 420 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/16/2018 09:11 AM CST
    - 420 -
    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. WASHINGTON
    Cite as 
    301 Neb. 420
    State of Nebraska, appellee, v.
    R ashad Washington, appellant.
    ___ N.W.2d ___
    Filed October 26, 2018.     Nos. S-17-1002, S-17-1026.
    1.	 Judgments: Appeal and Error. The construction of a mandate issued
    by an appellate court presents a question of law on which an appellate
    court is obligated to reach a conclusion independent of the determination
    reached by the court below.
    2.	 Courts: Appeal and Error. The order of an appellate court is con-
    clusive on the parties, and no judgment or order different from, or in
    addition to, that directed by the appellate court can be entered by the
    trial court.
    Appeals from the District Court for Douglas County: Peter
    C. Bataillon, Judge. Affirmed.
    Brian S. Munnelly for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    H eavican,             C.J.,    M iller-Lerman,           Stacy,     Funke,   and
    Papik, JJ.
    Heavican, C.J.
    INTRODUCTION
    Rashad Washington appeals from the district court’s denial
    of his motion to vacate and the subsequent reinstatement of
    sentences originally ordered on April 18, 2011. Washington
    appeals. We affirm.
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. WASHINGTON
    Cite as 
    301 Neb. 420
    BACKGROUND
    This case is procedurally complex. Following a jury trial,
    Washington was convicted of nine counts for first degree
    assault; second degree assault; possession of a firearm by a
    prohibited person; discharging a firearm in certain cities, vil-
    lages, and counties; three counts of use of a weapon to commit
    a felony; possession of a firearm by a prohibited person; and
    possession of a stolen firearm. These charges result from sepa-
    rate incidents occurring on March 17 and 27, 2010.
    On April 18, 2011, the district court sentenced Washington
    to a combined total of 70 to 110 years’ imprisonment. The
    district court then informed Washington, incorrectly, that he
    would be eligible for parole in 35 years, less the 387 days
    already served, and released in 55 years, less the 387 days
    already served. Two days later, on April 20, the district court
    attempted to resentence Washington to reflect the court’s intent
    that Washington would be eligible for parole in a certain num-
    ber of years or be released in a certain number of years.
    Washington appealed, but on June 19, 2011, in case No.
    A-11-402, his appeal was dismissed by the Nebraska Court of
    Appeals for lack of jurisdiction, because a poverty affidavit
    had not been filed.
    The State filed a petition to docket error proceedings,
    which was granted. In its petition, the State argued that the
    April 20, 2011, attempt to resentence Washington was of
    no effect. The Court of Appeals agreed and on February 27,
    2012, in case No. A-11-416, held that the April 18 sentence
    remained in effect, but the court remanded the matter for a
    new advisement on good time calculations. The district court
    held a hearing to that effect on May 1, 2012, with a written
    order following on May 3.
    By this time, Washington was represented by new counsel.
    That counsel filed a notice of appeal on Washington’s behalf,
    arguing insufficiency of the evidence, excessiveness of the
    sentences imposed, and ineffectiveness of counsel at the April
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. WASHINGTON
    Cite as 
    301 Neb. 420
    18, 2011, sentencing hearing.1 The Court of Appeals declined
    to reach the assigned errors, but found plain error in the
    sentences imposed based upon this court’s decision in State
    v. Castillas.2
    The Court of Appeals relied upon our statement in Castillas
    that “‘[m]andatory minimum sentences cannot be served con-
    currently. A defendant convicted of multiple counts each car-
    rying a mandatory minimum sentence must serve the sentence
    on each count consecutively,’” to conclude that the district
    court’s imposition of concurrent sentences for the second
    degree assault and discharging a firearm convictions were
    error.3 Accordingly, the Court of Appeals remanded the mat-
    ter for resentencing on those convictions, with recalculated
    good time advisements. Washington was so resentenced on
    September 30, 2013, with a written order filed on October 1.
    In January 2014, Washington filed various motions seeking
    postconviction relief in the form of a new direct appeal and the
    appointment of counsel for that appeal. Those motions were
    granted, an evidentiary hearing was held, and a new direct
    appeal granted.
    In an unpublished memorandum opinion dated December
    29, 2016, in consolidated cases Nos. A-15-317 and A-15-323,
    the Court of Appeals affirmed Washington’s convictions,
    but based on this court’s clarification of Castillas,4 reversed
    and vacated the sentences imposed by the district court on
    September 30, 2013. The Court of Appeals further ordered
    that the district court reinstate the sentences imposed on April
    18, 2011.
    1
    State v. Washington, No. A-12-470, 
    2013 WL 2326983
    (Neb. App. May
    28, 2013) (selected for posting to court website).
    2
    State v. Castillas, 
    285 Neb. 174
    , 
    826 N.W.2d 255
    (2013), disapproved in
    part, State v. Lantz, 
    290 Neb. 757
    , 
    861 N.W.2d 728
    (2015).
    3
    State v. Washington, supra note 1, 
    2013 WL 2326983
    at *3.
    4
    See State v. Lantz, supra note 2.
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. WASHINGTON
    Cite as 
    301 Neb. 420
    The Court of Appeals also found that all but two of
    Washington’s ineffective assistance of counsel claims were
    without merit, except for Washington’s claim that counsel
    failed to preserve a constitutional challenge to Neb. Rev. Stat.
    § 28-1212.04 (Reissue 2016) and that counsel failed to fully
    discuss and advise Washington concerning each count of the
    information and amended information. As to those two claims,
    the Court of Appeals found an insufficient record. Washington’s
    motion for rehearing to the Court of Appeals and petition for
    further review to this court were both denied.
    Upon remand, Washington filed a motion to vacate his
    conviction for discharge of a firearm in certain cities, vil-
    lages, and counties under § 28-1212.04, arguing the statute
    is unconstitutional on its face. Washington requested that the
    motion to vacate be taken up before the court reinstated the
    sentences as directed by the mandate. The district court con-
    cluded that it lacked jurisdiction to do anything other than
    reinstate the sentences imposed on April 18. Accordingly,
    the district court denied the motion to vacate and reinstated
    the April 18 sentences. Washington appeals the denial of his
    motion to vacate.
    ASSIGNMENTS OF ERROR
    On appeal, Washington assigns that (1) § 28-1212.04
    is facially unconstitutional, as violative of the prohibition
    against local and special laws as stated in Neb. Const. art. III,
    § 18, and the Equal Protection Clause of the 14th Amendment
    to the U.S. Constitution, and (2) the district court’s fail-
    ure to consider the merits of the federal equal protection
    challenge on the basis of state procedural grounds violated
    the Supremacy Clause of article VI, clause 2, of the U.S.
    Constitution.
    STANDARD OF REVIEW
    [1] The construction of a mandate issued by an appellate
    court presents a question of law on which an appellate court
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    STATE v. WASHINGTON
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    is obligated to reach a conclusion independent of the deter­
    mination reached by the court below.5
    ANALYSIS
    The issue presented by this appeal is whether the district
    court was obligated to consider the constitutional claim raised
    by Washington in his motion to vacate, when that motion was
    filed after remand from a decision of the Court of Appeals
    which ordered the district court to resentence Washington in a
    particular way. The district court declined to reach the motion,
    concluding that the mandate from the Court of Appeals allowed
    it only to resentence Washington. But Washington contends that
    the federal constitutional challenge trumps the state procedural
    rules under the Supremacy Clause of the U.S. Constitution,
    requiring the district court to address his claim.
    We have reviewed the cases upon which Washington relies
    and find them inapplicable here. Washington primarily relies
    upon cases which involve the collateral review of a statute
    already found to be unconstitutional and simply hold that
    the sentence imposed for such a violation is void.6 But the
    statute which Washington argues is unconstitutional has not
    yet been found to be unconstitutional, and the cases he relies
    upon do not opine on the underlying procedure that should be
    followed in making such a determination. We are therefore
    unpersuaded by Washington’s assertion that the lower court
    was obligated under the Supremacy Clause to address his con-
    stitutional claims.
    [2] This court has held that when a cause is remanded with
    specific directions, the court to which the mandate is directed
    has no power to do anything but to obey the mandate. The
    5
    State v. Payne, 
    298 Neb. 373
    , 
    904 N.W.2d 275
    (2017).
    6
    See, Montgomery v. Louisiana, ___ U.S. ___, 
    136 S. Ct. 718
    , 
    193 L. Ed. 2d
    599 (2016); MacDonald v. Moose, 
    710 F.3d 154
    (4th Cir. 2013); State
    v. Nollen, 
    296 Neb. 94
    , 
    892 N.W.2d 81
    (2017); State v. Castaneda, 
    287 Neb. 289
    , 
    842 N.W.2d 740
    (2014).
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    STATE v. WASHINGTON
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    301 Neb. 420
    order of an appellate court is conclusive on the parties, and no
    judgment or order different from, or in addition to, that directed
    by the appellate court can be entered by the trial court.7 Thus,
    pursuant to the mandate of the Court of Appeals, the district
    court had the power only to resentence Washington. There is
    no merit to Washington’s assertions to the contrary.
    CONCLUSION
    The district court did not err by not addressing Washington’s
    constitutional challenge. We affirm.
    A ffirmed.
    Cassel and Freudenberg, JJ., not participating.
    7
    State v. Molina, 
    271 Neb. 488
    , 
    713 N.W.2d 412
    (2006); State v. Gales, 
    269 Neb. 443
    , 
    694 N.W.2d 124
    (2005); State v. Hochstein and Anderson, 
    262 Neb. 311
    , 
    632 N.W.2d 273
    (2001).
    

Document Info

Docket Number: S-17-1002, S-17-1026

Citation Numbers: 301 Neb. 420

Filed Date: 10/26/2018

Precedential Status: Precedential

Modified Date: 11/16/2018