State v. Jackson ( 2015 )

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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. JACKSON
Cite as 291 Neb. 908State of Nebraska, appellee, v.
K ena G. Jackson, appellant.
___ N.W.2d ___
Filed October 2, 2015. No. S-14-677.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
2. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
3. 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.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction over an appeal, there must be a final order or final
judgment entered by the court from which the appeal is taken.
5. Criminal Law: Final Orders: Sentences: Words and Phrases. The
final judgment in a criminal case means sentence, and the sentence is
the judgment.
6. Final Orders: Appeal and Error. The general rule prohibiting immedi-
ate appeals from interlocutory orders seeks to avoid piecemeal appeals
arising out of one set of operative facts, chaos in trial procedure, and
a succession of appeals in the same case to secure advisory opinion to
govern further actions of the trial court.
7. Judgments. As a general matter, an order on summary application in an
action after judgment under Neb. Rev. Stat. § 25-1902 (Reissue 2008) is
an order ruling on a postjudgment motion in an action.
8. Words and Phrases. A substantial right is an essential legal right, not
merely a technical right.
9. 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.
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Cite as 291 Neb. 90810. Final Orders. Whether the effect of an order is substantial depends
on whether it affects with finality the rights of the parties in the sub-
ject matter.
11. Final Orders: Appeal and Error. An order affects a substantial right
when the right would be “significantly undermined” or “irrevocably
lost” by postponing appellate review.
12. Habeas Corpus. The certified copy of the judgment of a court of record
constitutes the authority of the warden to retain the prisoner.
13. Arrests: Warrants: Appeal and Error. An order for an arrest and com-
mitment warrant is not a final, appealable order.
Appeal from the District Court for Lancaster County: Jodi
Nelson, Judge. Appeal dismissed.
Jerry L. Soucie for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
McCormack, J.
NATURE OF CASE
A parolee appeals from the district court’s arrest and com-
mitment warrant that was issued ex parte after the Nebraska
Department of Correctional Services (the Department) alerted
the court that it had erroneously discharged him before his
mandatory release date. The parolee attacks the subject matter
jurisdiction of the district court to issue the order for an arrest
and commitment warrant. Alternatively, the parolee asserts
that the lack of notice and a hearing violated procedural due
proc­ess and his right to counsel. We dismiss the appeal for
lack of a final, appealable order.
BACKGROUND
Kena G. Jackson was convicted of possession of a con-
trolled substance with enhancement pursuant to the habitual
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STATE v. JACKSON
Cite as 291 Neb. 908criminal statute.1 On June 9, 2004, Jackson was sentenced by
the district court to 10 to 15 years’ imprisonment, with 196
days credit for time served.
The Department erroneously discharged Jackson from cus-
tody on November 11, 2013. With the 196 days’ credit, Jackson
had served only 3,650 days at the time of his discharge. This
would correspond to his 10-year mandatory minimum sen-
tence under the habitual criminal statutes. However, Jackson’s
discharge date should have been calculated upon serving 121⁄2
years of his sentence.2 Jackson’s parole eligibility date was
calculated upon serving 10 years of his sentence.3
On June 26, 2014, the State filed a motion in the district
court, under the same docket number as the original conviction
and sentence, asking that the court issue a warrant for Jackson’s
arrest and commitment, so that he could serve the remainder
of the June 9, 2004, sentence. The State filed an accompany-
ing affidavit in which the director of the Department averred
that by deducting good time credit from Jackson’s mandatory
minimum sentence, the Department had erroneously released
Jackson before his mandatory discharge date. Thus, at the
time Jackson was erroneously released, he still had 2 years 6
months to serve on his sentence before mandatory discharge.
Jackson was not notified of the State’s motion, and no hearing
was held on the motion.
The court issued an order on June 26, 2014, finding that
Jackson had not served the entirety of his sentence and that
he had been prematurely and erroneously released. The court
ordered that an arrest and commitment warrant be issued. The
court concurrently issued the arrest and commitment warrant.
Upon his return to custody, the Department released Jackson
on parole. The Department has indicated that other similarly
1
See Neb. Rev. Stat. § 29-2221 (Reissue 1995).
2
See Neb. Rev. Stat. §§ 83-1,107 and 83-1,110 (Reissue 2014). See, also,
e.g., State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), disapproved
on other grounds, State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
3
See id.- 911 -
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STATE v. JACKSON
Cite as 291 Neb. 908released inmates have not always been brought back into cus-
tody through an arrest and commitment warrant.
Jackson appeals the court’s order for an arrest and commit-
ment warrant.
ASSIGNMENTS OF ERROR
Jackson asserts (1) that the district court lacked subject mat-
ter jurisdiction to order his arrest and commitment and (2) that
issuing the arrest and commitment warrant without notice or
a hearing was “in violation of the Due Process Clause of the
Fourteenth Amendment and Sixth Amendment to the United
States Constitution.”
STANDARD OF REVIEW
[1,2] A jurisdictional issue that does not involve a factual
dispute presents a question of law.4 We independently review
questions of law decided by a lower court.5
ANALYSIS
[3,4] 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.6 For an appellate court to
acquire jurisdiction over an appeal, there must be a final order
or final judgment entered by the court from which the appeal
is taken.7
[5] The “final judgment in a criminal case means sentence
and the sentence is the judgment.”8 Accordingly, the order for
an arrest and commitment warrant in this case occurred after
the final judgment. It could only be directly appealed if it con-
stituted a final order.
4
Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).
5
Id.6
Id.; In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312(2006).
7
Id.8
State v. Adamson, 194 Neb. 592, 593, 233 N.W.2d 925, 926 (1975).
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Cite as 291 Neb. 908There are three types of final orders that may be reviewed
on appeal under the provisions of Neb. Rev. Stat. § 25-1902(Reissue 2008): (1) an order which affects a substantial right
in an action and which in 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 judgment is rendered. In addition, the collateral order
doctrine provides that an interlocutory order is immediately
appealable if it (1) finally decides an important matter, (2) that
is separate and distinct from the merits, and (3) is effectively
unreviewable at the end of the litigation.9
[6] These are the limited exceptions to the general rule
that interlocutory orders are not immediately appealable. The
general rule prohibiting immediate appeals from interlocutory
orders seeks to avoid piecemeal appeals arising out of one set
of operative facts, chaos in trial procedure, and a succession of
appeals in the same case to secure advisory opinion to govern
further actions of the trial court.10
Jackson asserts that the order for an arrest and commitment
warrant was final, because it affected a substantial right and
was made on summary application in an action after judgment
is rendered.
[7] We agree with Jackson that the order for an arrest and
commitment warrant was an order on summary application
in an action after judgment. As a general matter, an order on
“‘summary application in an action after judgment’” under
§ 25-1902 is an order ruling on a postjudgment motion in
an action.11 In State v. Perry,12 we held that the trial court’s
amended commitment order, changing the defendant’s sentence
9
See Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 430 (1997).
10
See, State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997); In re Estate
of Peters, 259 Neb. 154, 609 N.W.2d 23 (2000).
11
Heathman v. Kenney, 263 Neb. 966, 969, 644 N.W.2d 558, 561 (2002).
12
State v. Perry, 268 Neb. 179, 681 N.W.2d 729 (2004).
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Cite as 291 Neb. 908from 40 to 42 years’ imprisonment to 200 months’ to 42 years’
imprisonment and issued upon the court’s own motion 2 years
after the original sentence, was made on summary application
in an action after judgment was rendered. And in Heathman
v. Kenney,13 we held that an order denying the defendant’s
request for reimbursement of photocopying expenses, made
after a final judgment of dismissal of the underlying writ of
habeas corpus and while the defendant’s appeal from the dis-
missal was pending, was made upon a summary application in
an action after judgment.
Similarly here, the State’s motion for an arrest and com-
mitment warrant related to a prior final judgment, the June 9,
2004, sentencing order. The court’s order granting the motion
was a postjudgment ruling in the underlying criminal action. It
was an order in an action after judgment is rendered.
But we disagree with Jackson’s contention that the order for
an arrest and commitment warrant affected a substantial right.
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.14 It is not enough that the right itself
be substantial; the effect of the order on that right must also
be substantial.15
[8,9] Regarding the importance of the right affected, we
often state that a substantial right is an essential legal right,
not merely a technical right.16 It is a right of “substance.”17 We
13
Heathman v. Kenney, supra note 11.
14
See John P. Lenich, What’s So Special About Special Proceedings? Making
Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 (2001).
15
See id. See, also, e.g., In re Interest of R.G., 238 Neb. 405, 470 N.W.2d
780 (1991), disapproved on other grounds, O’Connor v. Kaufman, 255
Neb. 120, 582 N.W.2d 350 (1998); Egan v. Bunner, 155 Neb. 611, 52
N.W.2d 820 (1952); Ribble v. Furmin, 69 Neb. 38, 94 N.W. 967 (1903).
16
See Hernandez v. Blankenship, 257 Neb. 235, 596 N.W.2d 292 (1999).
17
See, Clarke v. Nebraska Nat. Bank, 49 Neb. 800, 803, 69 N.W. 104, 106
(1896); Lenich, supra note 14.
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Cite as 291 Neb. 908have elaborated further that an order affects a substantial right
if it “affects the subject matter of the litigation, such as dimin-
ishing a claim or defense that was available to the appellant
prior to the order from which he or she is appealing.”18
Thus, in State v. Schlund,19 we held that an order disqualify-
ing the public defender did not affect a substantial right. We
explained that while there is a right to effective counsel, there
is no right to counsel of one’s choice. Moreover, the motion to
disqualify counsel affected a “peripheral matter,” rather than
the subject matter of the case.20
Likewise, we held in In re Estate of Peters21 that even
though an order reopening a formally closed probate estate
and reappointing a personal representative required the heirs
to defend distributions that were approved 2 years earlier, the
order was not dispositive of the heirs’ rights to those distribu-
tions. The heirs did not yet suffer a diminishment of any claim
or defense as a result of the order. Therefore, the order did not
affect a substantial right.
[10,11] Whether the effect of an order is substantial depends
on “whether it affects with finality the rights of the parties in
the subject matter.”22 This aspect of “affecting a substantial
right” also depends on whether the right could otherwise be
effectively vindicated.23 An order affects a substantial right
when the right would be “significantly undermined”24 or “irrev­
ocably lost”25 by postponing appellate review. The duration of
18
Jarrett v. Eichler, 244 Neb. 310, 314, 506 N.W.2d 682, 685 (1993). See,
also, State v. Schlund, 249 Neb. 173, 542 N.W.2d 421 (1996).
19
State v. Schlund, supra note 18.
20
Id. at 176, 542 N.W.2d at 423.
21
In re Estate of Peters, supra note 10.
22
Id. at 159, 609 N.W.2d at 27.
23
See, e.g., In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010);
State v. Vela, 272 Neb. 287, 721 N.W.2d 631 (2006).
24
State v. Gibbs, 253 Neb. 241, 245, 570 N.W.2d 326, 330 (1997).
25
State v. Vela, supra note 23, 272 Neb. at 290, 721 N.W.2d at 635.
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Cite as 291 Neb. 908the order is relevant to whether its effect on the substantial
right is substantial.26
Thus, in State v. Cisneros27 the Nebraska Court of Appeals
held that an order denying the defendant’s request to with-
draw his pleas of no contest did not affect a substantial right.
The order clearly affected the defendant’s important rights
to a presumption of innocence and to a trial by jury. But the
Court of Appeals reasoned that the withdrawal of the pleas,
even if allowed, would not have resulted in the defendant’s
immediate release from custody. Therefore, the rights at issue
could effectively be vindicated in an appeal after a conviction
and sentence.28
And in In re Interest of T.T.,29 the Court of Appeals held
that a temporary gag order against a parent in juvenile pro-
ceedings was not a final, appealable order. The order was only
intended to operate for 5 days. The court observed that the
object of the order was of sufficient importance; the right of
free speech is “‘constitutional bedrock.’”30 But the Court of
Appeals concluded that the timeframe over which the order
could reasonably be expected to operate was not sufficient to
be directly appealable.31
In Nebraska, an arrest, with or without a judicially ordered
warrant, is not immediately appealable in other contexts.32
Even the denial of a motion to quash, based on the alleged
illegality of the arrest, is not immediately appealable.33
26
See In re Interest of T.T., 18 Neb. App. 176, 779 N.W.2d 602 (2009).
27
State v. Cisneros, 14 Neb. App. 112, 704 N.W.2d 550 (2005).
28
Id.29
In re Interest of T.T., supra note 26.
30
Id. at 184, 779 N.W.2d at 612.
31
In re Interest of TT., supra note 26.
32
See, e.g., State v. Royer, 276 Neb. 173, 753 N.W.2d 333 (2008); State v.
Sinsel, 249 Neb. 369, 543 N.W.2d 457 (1996). See, also, United States v.
One Parcel of Real Property, 767 F.2d 1495 (11th Cir. 1985).
33
See State v. Sinsel, supra note 32.
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Cite as 291 Neb. 908Likewise, an order of commitment is not considered an
appealable order in its more typical context.34
In other jurisdictions, attempts to appeal directly from orders
for arrest or commitment are exceedingly rare. But when pre-
sented, courts in other jurisdictions likewise hold, either directly
or indirectly, that such orders are not immediately appealable
absent specific statutory authorization.35 And although there
are many cases considering the consequences of mistaken and
erroneous release, none involve immediate appeals from orders
pertaining to the act of bringing the inmate back into a depart-
ment of corrections’ custody.
[12] Jackson acknowledges that he is currently serving
parole under the legal custody of the Department by virtue
of the June 9, 2004, sentencing order. We have said, “The
certified copy of the judgment of a court of record . . . con-
stitutes the authority of the warden to retain the [prisoner].”36
When a judgment includes a statement of the nature of the
imprisonment imposed and the duration thereof, it fulfills
all purposes contemplated by the relevant statute, Neb. Rev.
Stat. § 29-2401 (Reissue 2008), and constitutes the author-
ity for the Department’s exercise of custody over the con-
victed person.37
In Hawk v. O’Grady,38 we applied these principles to
affirm the denial of habeas corpus relief for a petitioner who
alleged that the district court acted in excess of its powers
when it ordered federal officers to return the petitioner to
the custody of Douglas County upon the completion of his
federal sentence. We explained that even if the petitioner’s
34
See, e.g., State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001); In re
Interest of J.A., 244 Neb. 919, 510 N.W.2d 68 (1994).
35
See, United States v. One Parcel of Real Property, supra note 32; State v.
Royer, supra note 32; Nnoli v. Nnoli, 389 Md. 315, 884 A.2d 1215 (2005).
36
Dunham v. O’Grady, 137 Neb. 649, 651, 290 N.W. 723, 724 (1940).
37
Id.38
Hawk v. O’Grady, 137 Neb. 639, 290 N.W. 911 (1940).
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Cite as 291 Neb. 908allegations were true, they would not entitle him to habeas
relief. We said that despite any possible error in the direc-
tions concerning his delivery into custody, the petitioner was
serving time in State custody pursuant to a valid conviction
and sentence.39
We have also repeatedly said that “‘where the judgment
and sentence is imprisonment for a certain term, and from any
cause the time elapses without the imprisonment being endured,
it will still be a valid, subsisting, unexecuted judgment.’”40
The June 9, 2004, order did not lose its presumed valid-
ity and effect simply because the Department mistakenly
released Jackson, and any attack on the enforceability of the
June 9 order was beyond the scope of the proceedings for an
arrest and commitment warrant. The court was merely acting,
through the arrest and commitment warrant, as an enforcer of
its prior order.
The district court enforced the June 9, 2004, order after
observing through a straightforward mathematical calculation
that Jackson had not yet served the entirety of his sentence.
The court was not deciding any important right or issue affect-
ing the subject matter of the underlying criminal action or of
any rights allegedly derived from the mistaken release. The
court did not diminish any claim or defense that was available
to Jackson prior to the order for an arrest and commitment
warrant. This is distinguishable from the final order in State v.
Perry, wherein the court had amended one of the defendant’s
sentences from 40 to 42 years’ imprisonment to 200 months’
to 42 years’ imprisonment.41
Because the Department’s continuing exercise of custody
is pursuant to the June 9, 2004, order, setting aside the order
for an arrest and commitment warrant would not result in
39
Id.40
Riggs v. Sutton, 113 Neb. 556, 560, 203 N.W. 999, 1000 (1925) (emphasis
supplied). See, also, Tyler v. Houston, 273 Neb. 100, 728 N.W.2d 549(2007).
41
State v. Perry, supra note 12.
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Cite as 291 Neb. 908Jackson’s release from the Department’s custody, even if we
were to entertain Jackson’s appeal and find it meritorious. And
the court’s order for an arrest and commitment warrant was
by its nature an order of limited duration. The warrant was
issued pursuant to the order, and its sole purpose was com-
pleted when Jackson was brought back into the Department’s
custody.
Any rights of substance that Jackson might claim stem from
his mistaken release can be effectively vindicated through a
petition for a writ of habeas corpus relief. This is distinguish-
able from the final order in Heathman v. Kenney denying
the defendant’s request for reimbursement of photocopying
expenses,42 because there was no apparent future opportunity
to litigate that question. Jackson’s objective is his absolute
discharge from the Department’s custody. Habeas is especially
crafted for persons who believe they are confined without
legal authority.43
The scope of the proceedings inherent to the consideration
of a motion for an arrest and commitment warrant are necessar-
ily more limited in comparison to an action for habeas corpus
relief. This is due to both the scope of the issue presented and
the need for expediency when a mistakenly released inmate is
at large. We reject Jackson’s apparent contention that motions
for arrest and commitment warrants should be turned into
ad hoc habeas actions in which both parties fully litigate the
enforceability of the unserved sentencing order before a war-
rant to arrest can issue.
Were we to address appeals from orders for arrest and com-
mitment warrants, our review would be limited to the ques-
tions presented to and decided by the district court,44 as well
as any inherent due process or jurisdictional questions relat-
ing to the motion. All other questions unrelated to the act of
42
Heathman v. Kenney, supra note 11.
43
See Neb. Rev. Stat. § 29-2801 (Reissue 2008).
44
See State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
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Cite as 291 Neb. 908issuing an arrest and commitment warrant would have to be
litigated elsewhere. To recognize an order for an arrest and
commitment warrant as a final order would thus create piece-
meal appeals arising out of one set of operative facts. Further,
since not all mistakenly released inmates are brought back into
custody through an order for an arrest and commitment war-
rant, recognizing such orders as final would create chaos in
trial procedure.
[15] For all these reasons, we conclude that the order for
an arrest and commitment warrant is not a final, appealable
order. But most fundamentally, the temporary order did not
affect the underlying authority of the Department’s continuing
exercise of custody over Jackson, and the order did not dimin-
ish any claim or defense that was available to Jackson before
it was issued.
CONCLUSION
A habeas action provides an “adequate and unimpaired
opportunit[y]” to “test the validity and sufficiency” of Jackson’s
claims stemming from the mistaken release.45 Until such an
action succeeds in altering the June 9, 2004, sentence or its
enforceability, the June 9 sentence remains the authority under
which the Department currently has Jackson in custody. The
district court’s order for an arrest and commitment warrant was
simply a temporary order of enforcement. Therefore, the order
for an arrest and commitment warrant was not a final order and
we have no jurisdiction over the present appeal.
A ppeal dismissed.
Stephan, J., not participating in the decision.
45
Rehn v. Bingaman, 157 Neb. 467, 481, 59 N.W.2d 614, 621 (1953).