State v. Payne , 298 Neb. 373 ( 2017 )


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  • Nebraska Supreme Court Online Library
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    03/02/2018 08:13 AM CST
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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    STATE v. PAYNE
    Cite as 
    298 Neb. 373
    State of Nebraska, appellee, v.
    Christopher M. Payne, appellant.
    ___ N.W.2d ___
    Filed December 8, 2017.   No. S-16-1233.
    1.	 Judgments: Jurisdiction. A jurisdictional issue that does not involve a
    factual dispute presents a question of law.
    2.	 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.
    3.	 Jurisdiction: Appeal and Error. Before reaching the legal issues pre-
    sented for review, it is the power and duty of an appellate court to deter-
    mine whether it has jurisdiction over the matter before it, irrespective of
    whether the issue is raised by the parties.
    4.	 Postconviction: Final Orders. In a postconviction proceeding, an order
    granting an evidentiary hearing on some issues and denying a hearing on
    others is a final order as to the claims denied without a hearing.
    5.	 Judgments: Appeal and Error. Where the mandate makes the opinion
    of an appellate court a part thereof by reference, the opinion should be
    examined in conjunction with the mandate to determine the nature and
    terms of the judgment to be entered or the action to be taken thereon.
    6.	 Courts: Judgments: Appeal and Error. A district court has an unquali-
    fied duty to follow the mandate issued by an appellate court and must
    enter judgment in conformity with the opinion and judgment of the
    appellate court.
    7.	 ____: ____: ____. A lower court may not modify a judgment directed
    by an appellate court; nor may it engraft any provision on it or take any
    provision from it.
    8.	 Judgments: Appeal and Error. No judgment or order different from, or
    in addition to, the appellate mandate can have any effect.
    9.	 Courts: Judgments: Jurisdiction: Appeal and Error. Because a trial
    court is without power to affect rights and duties outside the scope of
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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    STATE v. PAYNE
    Cite as 
    298 Neb. 373
    the remand from an appellate court, any order attempting to do so is
    entered without jurisdiction and is void.
    Appeal from the District Court for Sarpy County: William
    B. Zastera, Judge. Order vacated, and cause remanded with
    directions.
    Gregory A. Pivovar for appellant.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Stacy, J.
    This is Christopher M. Payne’s second appeal from post-
    conviction proceedings before the district court for Sarpy
    County. In his first appeal, we reversed the district court’s
    order denying postconviction relief and remanded the cause
    for an evidentiary hearing on Payne’s claim that his no contest
    plea was the result of his trial counsels’ ineffective assistance.1
    On remand, the district court interpreted our opinion to require
    an evidentiary hearing on a different issue, and Payne timely
    appeals from that order.
    We conclude the district court misinterpreted the directions
    on remand and consequently entered an order that exceeded
    the scope of our mandate and was therefore void. We vacate
    the district court’s order and remand the cause with directions.
    FACTS
    In 2005, Payne was charged with first degree sexual assault
    of a child, incest, and sexual assault of a child. Pursuant to
    a plea agreement, he pled no contest to first degree sexual
    assault of a child and was sentenced to imprisonment for a
    term of 40 to 50 years. Payne did not file a direct appeal. His
    1
    State v. Payne, 
    289 Neb. 467
    , 
    855 N.W.2d 783
    (2014).
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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    STATE v. PAYNE
    Cite as 
    298 Neb. 373
    trial counsel had not withdrawn and was still engaged as coun-
    sel during the time an appeal could have been filed.
    Postconviction Motion
    On August 24, 2012, Payne filed a verified motion for post-
    conviction relief, and he thereafter filed amended and second
    amended motions. In his operative motion, Payne alleged his
    trial attorneys were ineffective in (1) failing to preserve his
    speedy trial rights by filing a motion to discharge; (2) failing
    to move for discharge following a preindictment delay; (3)
    failing to adequately investigate possible defenses, specifically,
    not hiring an expert witness; (4) failing to file a plea in abate-
    ment or motion to quash to challenge the State’s failure to pro-
    vide sufficient evidence as to venue and corpus delecti; and (5)
    advising him to plead guilty or no contest despite the fact that
    a law enforcement witness testified falsely. Read as a whole,
    Payne’s postconviction motion asserted that if his trial counsel
    had not been ineffective in one or more of the five asserted
    ways, he would have insisted on going to trial and would not
    have entered his no contest plea.
    The district court denied Payne’s postconviction motion
    without conducting an evidentiary hearing, finding his allega-
    tions of ineffective assistance of trial counsel were procedur-
    ally barred because he had not filed a direct appeal. Payne
    timely appealed.
    First A ppeal
    This court reversed that denial and remanded the cause
    for further proceedings. In doing so, we generally addressed
    two issues: procedural bar and waiver. We concluded Payne’s
    ineffective assistance of counsel claims were not procedurally
    barred, because Payne was still represented by trial counsel at
    the time a direct appeal could have been filed. We explained
    that because trial counsel represented Payne during the entire
    appeal period, Payne’s first opportunity to raise ineffective
    assistance of trial counsel was in a motion for postconviction
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    STATE v. PAYNE
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    298 Neb. 373
    relief, and consequently, his claims that trial counsel provided
    ineffective assistance were not procedurally barred.2
    We also addressed whether Payne had waived any of the
    claims asserted in his postconviction motion by entering his
    plea of no contest. Generally, a voluntary guilty plea or plea
    of no contest waives all defenses to a criminal charge.3 Thus,
    when a defendant pleads guilty or no contest, he or she is lim-
    ited to challenging whether the plea was understandingly and
    voluntarily made and whether it was the result of ineffective
    assistance of counsel.4 In a postconviction proceeding brought
    by a defendant convicted because of a guilty plea or a plea of
    no contest, a court will consider an allegation that the plea was
    the result of ineffective assistance of counsel.5
    In addressing the waiver issue, we noted that because Payne
    pled no contest, he “waived all of his claims except his
    claim that counsel was ineffective in advising him to plead
    no contest.”6 We then reversed the denial of his motion and
    remanded the cause for further proceedings on Payne’s claims
    that his no contest plea was the result of his trial counsels’
    ineffective assistance.7 The mandate issued accordingly and
    directed that judgment be entered “in conformity with the judg-
    ment and opinion of this court.”
    Proceedings on R emand
    On remand, the district court set the matter for evidentiary
    hearing. Payne’s postconviction counsel then filed a motion
    asking the trial court to determine the “nature and parameters”
    2
    See, State v. Armendariz, 
    289 Neb. 896
    , 
    857 N.W.2d 775
    (2015); State v.
    Robinson, 
    285 Neb. 394
    , 
    827 N.W.2d 292
    (2013).
    3
    See, State v. Lee, 
    290 Neb. 601
    , 
    861 N.W.2d 393
    (2015); State v. Amaya,
    
    276 Neb. 818
    , 
    758 N.W.2d 22
    (2008).
    4
    See State v. Bazer, 
    276 Neb. 7
    , 
    751 N.W.2d 619
    (2008).
    5
    Id.
    6
    State v. Payne, supra note 
    1, 289 Neb. at 470
    , 855 N.W.2d at 786.
    7
    State v. Payne, supra note 1.
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    of the issues to be addressed at the evidentiary hearing.
    Payne’s motion generally requested an evidentiary hearing on
    all five of his claims that his plea of no contest was the result
    of his trial counsels’ ineffective assistance.
    The district court issued an order finding that, based on its
    review of this court’s opinion, the “sole” issue for evidentiary
    hearing was whether Payne’s trial counsel was ineffective for
    failing to file a direct appeal. The court reasoned:
    After review of the [Supreme Court’s opinion], the
    Court is of the opinion the issue that first must be
    decided is whether the failure of trial Counsel to file a
    Direct Appeal is grounds to determine that Counsel was
    incompetent and failed to meet the standard of care as
    an attorney.
    This being said, it is the opinion of this Court this is
    the sole issue to be determined at the hearing.
    Payne timely appealed from the district court’s order. We
    moved the appeal to our docket on our own motion.8
    ASSIGNMENTS OF ERROR
    Payne assigns, restated and renumbered, that the trial court
    erred in (1) finding the evidentiary hearing was limited to the
    issue of whether trial counsel was ineffective in failing to file
    a direct appeal and (2) failing to hold an evidentiary hearing
    on the issue of whether Payne’s no contest plea was the result
    of his trial counsels’ ineffective assistance.
    STANDARD OF REVIEW
    [1] A jurisdictional issue that does not involve a factual dis-
    pute presents a question of law.9
    [2] The construction of a mandate issued by an appellate
    court presents a question of law, on which an appellate court
    8
    See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
    9
    Karo v. NAU Country Ins. Co., 
    297 Neb. 798
    , 
    901 N.W.2d 689
    (2017).
    See, State v. Harris, 
    292 Neb. 186
    , 
    871 N.W.2d 762
    (2015); State v.
    Meints, 
    291 Neb. 869
    , 
    869 N.W.2d 343
    (2015).
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    STATE v. PAYNE
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    298 Neb. 373
    is obligated to reach a conclusion independent of the determi-
    nation reached by the court below.10
    ANALYSIS
    [3] Before reaching the legal issues presented for review,
    it is the power and duty of an appellate court to determine
    whether it has jurisdiction over the matter before it, irrespec-
    tive of whether the issue is raised by the parties.11
    [4] We have consistently held that an order granting an evi-
    dentiary hearing on some issues and denying a hearing on oth-
    ers is a final order as to the claims denied without a hearing.12
    Because Payne has appealed the district court’s order limiting
    the evidentiary hearing to a single issue and implicitly denying
    an evidentiary hearing on all other issues, we conclude he has
    appealed from a final, appealable order.
    [5] Payne appeals from the district court’s order interpreting
    the scope of this court’s mandate following the first appeal.
    The construction of a mandate issued by an appellate court
    presents a question of law.13 Where, as here, the mandate
    makes the opinion of the court a part thereof by reference, the
    opinion should be examined in conjunction with the mandate to
    determine the nature and terms of the judgment to be entered
    or the action to be taken thereon.14
    [6-9] A district court has an unqualified duty to follow the
    mandate issued by an appellate court and must enter judgment
    in conformity with the opinion and judgment of the appellate
    court.15 A lower court may not modify a judgment directed
    10
    Klingelhoefer v. Monif, 
    286 Neb. 675
    , 
    839 N.W.2d 247
    (2013).
    
    11 Cl. Ch. v
    . First Nat. Bank of Omaha, 
    296 Neb. 632
    , 
    895 N.W.2d 284
          (2017).
    12
    State v. Alfredson, 
    287 Neb. 477
    , 
    842 N.W.2d 815
    (2014); State v. Yos-
    Chiguil, 
    281 Neb. 618
    , 
    798 N.W.2d 832
    (2011).
    13
    Klingelhoefer v. Monif, supra note 10.
    14
    Pursley v. Pursley, 
    261 Neb. 478
    , 
    623 N.W.2d 651
    (2001).
    15
    Klingelhoefer v. Monif, supra note 10.
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    by an appellate court; nor may it engraft any provision on it
    or take any provision from it.16 No judgment or order different
    from, or in addition to, the appellate mandate can have any
    effect.17 Because a trial court is without power to affect rights
    and duties outside the scope of the remand from an appellate
    court, any order attempting to do so is entered without juris-
    diction and is void.18
    We conclude the order entered by the district court on
    remand is void, because it attempted to affect rights and duties
    outside the scope of remand. The district court interpreted our
    mandate to require an evidentiary hearing on whether Payne’s
    trial counsel provided ineffective assistance by failing to file a
    direct appeal. But Payne never alleged such a claim, and our
    opinion did not direct the district court to hold an evidentiary
    hearing on such a claim. To the contrary, our opinion in State
    v. Payne19 held that the failure to file a direct appeal did not
    procedurally bar the “only remaining issue” that Payne’s no
    contest plea was the result of his trial counsels’ ineffective
    assistance, and the cause was remanded for an evidentiary
    hearing on that issue.
    In a postconviction proceeding brought by a defendant
    convicted because of a guilty plea or a plea of no contest, a
    court will consider an allegation that the plea was the result
    of ineffective assistance of counsel.20 Thus, Payne argues that
    on remand, he was entitled to an evidentiary hearing on his
    claims that his no contest plea was the result of his trial coun-
    sels’ ineffective assistance. We observe that Payne’s operative
    postconviction motion alleged five ways that the ineffective
    assistance of his trial counsel resulted in his accepting the plea
    offer instead of insisting on a trial. The State, both in its brief
    16
    See 
    id. 17 Id.
    18
    See State v. Shelly, 
    279 Neb. 728
    , 
    782 N.W.2d 12
    (2010).
    19
    State v. Payne, supra note 
    1, 289 Neb. at 471
    , 855 N.W.2d at 786.
    20
    
    Id., citing State
    v. Bazer, supra note 4.
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    and at oral argument before this court, generally agreed that
    under the mandate from Payne, Payne is entitled to an eviden-
    tiary hearing on each of those five claims.
    By limiting the evidentiary hearing to whether trial coun-
    sel was ineffective in not filing a direct appeal, the district
    court’s order following remand exceeded the scope of our
    mandate. Because the district court was without power to
    affect rights and duties outside the scope of the remand, the
    district court’s order exceeded its jurisdiction, was void, and
    must be vacated.21
    CONCLUSION
    For these reasons, we vacate the district court’s order
    regarding the scope of the evidentiary hearing and we remand
    the cause with directions that an evidentiary hearing be held
    on Payne’s claims that his no contest plea was the result of his
    trial counsels’ ineffective assistance.
    Order vacated, and cause remanded
    with directions.
    Wright, J., not participating in the decision.
    21
    See, State v. Shelly, supra note 18; Pursley v. Pursley, supra note 14.