State v. McAleese , 311 Neb. 243 ( 2022 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/20/2022 09:07 AM CDT
    - 243 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. McALEESE
    Cite as 
    311 Neb. 243
    State of Nebraska, appellee, v.
    Andrew McAleese, appellant.
    ___ N.W.2d ___
    Filed March 25, 2022.    No. S-21-255.
    1. Jurisdiction: Appeal and Error. Determination of a jurisdictional
    issue which does not involve a factual dispute is a matter of law which
    requires an appellate court to reach its conclusions independent from a
    trial court.
    2. ____: ____. Subject matter jurisdiction is a question of law for the court,
    which requires an appellate court to reach a conclusion independent of
    the lower court’s decision.
    3. Criminal Law: Statutes. Where a criminal procedure is not authorized
    by statute, it is unavailable to a defendant in a criminal proceeding.
    4. Criminal Law: Jurisdiction. When an unauthorized motion is filed in a
    criminal case, the court lacks subject matter jurisdiction to adjudicate it.
    5. Judgments: Jurisdiction: Collateral Attack. When a collateral attack
    on a criminal judgment is not raised in a recognized proceeding, the
    court lacks jurisdiction over the claim.
    6. Criminal Law: Judgments: Jurisdiction. A criminal judgment is void
    when the court rendering it lacks jurisdiction or a legal basis to impose
    judgment.
    Appeal from the District Court for Adams County, Terri
    S. Harder, Judge, on appeal thereto from the County Court
    for Adams County, Michael P. Burns, Judge. Judgment of
    District Court affirmed.
    Shon T. Lieske, of Lieske, Lieske & Ensz, P.C., L.L.O., for
    appellant.
    Douglas J. Peterson, Attorney General, and Jordan Osborne
    for appellee.
    - 244 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. McALEESE
    Cite as 
    311 Neb. 243
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Stacy, J.
    Nearly 9 years after the county court sentenced him for driv-
    ing under the influence, third offense, Andrew McAleese filed
    a motion seeking to vacate and correct his sentence to add an
    ignition interlock provision. The county court concluded it had
    no legal authority to consider such a motion, and it denied the
    motion on that basis. McAleese appealed, and the district court
    affirmed. McAleese appeals again, and we granted the State’s
    petition to bypass. We likewise affirm.
    BACKGROUND
    In 2008, McAleese was convicted in the county court for
    Adams County of driving under the influence of alcohol, third
    offense, a Class W misdemeanor. McAleese was sentenced to a
    60-month term of probation, which included a 30-day jail term,
    a $600 fine, and a 2-year license revocation.
    In September 2010, McAleese’s probation was revoked, and
    he was resentenced to a jail term of 120 days, a $600 fine,
    and a 15-year license revocation. McAleese was ordered not
    to drive a motor vehicle during the 15-year period of revoca-
    tion, and the court impounded his operator’s license during
    that period.
    Although neither party brought it to the attention of the sen-
    tencing court at the time, the parties agree that in addition to
    the statutory penalty for driving under the influence, 1 the statu-
    tory scheme governing the crime of driving under the influence
    also requires a sentencing court to issue an order pursuant to
    
    Neb. Rev. Stat. § 60-6
    ,197.01 (Reissue 2021). 2 The version of
    § 60-6,197.01 in effect when McAleese was arrested required
    1
    See, generally, 
    Neb. Rev. Stat. § 60-6
    ,196(2) (Reissue 2021) (providing
    anyone who is convicted of driving under the influence shall be “punished
    as provided in sections 60-6,197.02 to 60-6,197.08”).
    2
    See, generally, 
    Neb. Rev. Stat. § 60-6
    ,197.03(4) (Reissue 2021).
    - 245 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. McALEESE
    Cite as 
    311 Neb. 243
    the court to impose one of two restrictions on all motor vehi-
    cles owned by the convicted person; it could either (1) order
    the motor vehicles immobilized for a period not less than 5
    days nor more than 8 months or (2) order “installation of an
    ignition interlock device . . . if [the defendant] was sentenced
    to an operator’s license revocation of at least one year and has
    completed at least one year of such revocation.” 3
    It is undisputed that neither the 2010 sentencing order, nor
    any other order in our record, imposed either of the statutory
    restrictions on motor vehicles owned by McAleese. No appeal
    was taken, and the conviction and sentence became final 30
    days later. 4
    Nine years later, McAleese filed what he titled as a “Motion
    to Re-Open the Case [and] Vacate the Previous Sentencing
    Order and to Resentence the Defendant to Authorize an
    Ignition Inter­lock Device During Revocation.” The motion
    asserted that the 2010 sentencing order failed to include an
    order pursuant to § 60-6,197.01, and it requested that the crim-
    inal case be reopened so the sentencing order could be vacated
    and “corrected to order [McAleese] to obtain [and] install an
    ignition interlock device in his vehicle . . . for the remainder
    of his revocation period.”
    The county court denied the postjudgment motion. It
    acknowledged that the 2010 sentencing order was “flawed”
    in that it failed to include an order pursuant to § 60-6,197.01.
    But the court observed that the 2010 sentence had not been
    3
    See §§ 60-6,197.01(1)(a) and (b) and 60-6,197.03(4) (Cum. Supp. 2006).
    See, also, 
    Neb. Rev. Stat. § 60-6
    ,197.02(4) (Cum. Supp. 2010) (“[a] person
    arrested for a violation of section 60-6,196 or 60-6,197 before May 14,
    2009, but sentenced . . . after May 14, 2009, shall be sentenced according
    to the provisions of section 60-6,197.03 in effect on the date of arrest”).
    4
    See, State v. Beyer, 
    260 Neb. 670
    , 
    619 N.W.2d 213
     (2000) (holding
    when no appeal taken from criminal judgment, it becomes final for all
    purposes); Caradori v. Hamilton, 
    193 Neb. 500
    , 
    227 N.W.2d 850
     (1975)
    (same). See, also, State v. Jonsson, 
    192 Neb. 730
    , 
    224 N.W.2d 181
     (1974)
    (holding judgment and sentence become final 30 days after entered if no
    appeal filed).
    - 246 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. McALEESE
    Cite as 
    311 Neb. 243
    appealed, and “now, more than nine years later, any recognized
    flaws are well past that point in time that may have allowed
    the authority of this court to rectify the same.” Concluding
    that it had no “legal authority” to reopen the case or grant the
    requested relief by correcting the sentence, the court denied
    the motion.
    McAleese appealed. The district court, sitting as an appel-
    late court, agreed the 2010 sentencing order was erroneous in
    that it failed to include an order pursuant to § 60-6,197.01. But
    the district court also agreed with the county court’s recogni-
    tion that it lacked jurisdiction to vacate and correct McAleese’s
    sentence, which had long ago become a final judgment. The
    district court therefore affirmed the county court’s order deny-
    ing the motion based on a lack of jurisdiction.
    McAleese filed a timely appeal, and we granted the State’s
    petition to bypass.
    ASSIGNMENT OF ERROR
    McAleese assigns that the district court erred in affirming
    the county court’s denial of his motion to vacate and correct
    his sentence.
    STANDARD OF REVIEW
    [1,2] Determination of a jurisdictional issue which does not
    involve a factual dispute is a matter of law which requires an
    appellate court to reach its conclusions independent from a trial
    court. 5 Subject matter jurisdiction is a question of law for the
    court, which requires an appellate court to reach a conclusion
    independent of the lower court’s decision. 6
    ANALYSIS
    The court’s failure to issue an order pursuant to § 60-6,197.01
    when imposing the 2010 sentence is something McAleese
    5
    State v. Coble, 
    299 Neb. 434
    , 
    908 N.W.2d 646
     (2018). See State v. Greer,
    
    309 Neb. 667
    , 
    962 N.W.2d 217
     (2021).
    6
    State v. Chojolan, 
    288 Neb. 760
    , 
    851 N.W.2d 661
     (2014).
    - 247 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. McALEESE
    Cite as 
    311 Neb. 243
    could have brought to the attention of the county court at the
    time of sentencing or could have assigned as error on direct
    appeal. 7 He did neither. Instead, 9 years after his criminal
    judgment became final, McAleese filed a motion asking the
    sentencing court to reopen his criminal case, vacate his sen-
    tence, and impose a “corrected” sentence. McAleese directs us
    to no statutory authority for such a motion, and we are aware
    of none.
    [3-5] We have long recognized the general rule that where
    a criminal procedure is not authorized by statute, it is unavail-
    able to a defendant in a criminal proceeding. 8 And we have
    said that when an unauthorized motion is filed in a criminal
    case, the court lacks subject matter jurisdiction to adjudicate
    it. 9 Similarly, we have said that when a collateral attack on
    7
    See, e.g., State v. Sikes, 
    286 Neb. 38
    , 
    834 N.W.2d 609
     (2013) (defendant
    convicted of driving under influence, third offense, assigns error to sen­
    tencing order that required ignition interlock device and continuous alcohol
    monitor during 15-year license revocation); State v. Hense, 
    276 Neb. 313
    ,
    
    753 N.W.2d 832
     (2008) (State files error proceeding to challenge sen­
    tencing court’s failure to impose 15-year license revocation as required by
    statute when sentencing one convicted of operating vehicle during period
    of revocation).
    8
    See, State v. Melton, 
    308 Neb. 159
    , 
    953 N.W.2d 246
     (2021) (holding post­
    judgment motion to modify nonprobationary sentence is not authorized
    by criminal procedure statutes and thus is not available in criminal pro­
    ceeding); State v. Dunster, 
    270 Neb. 773
    , 
    707 N.W.2d 412
     (2005) (holding
    court lacked jurisdiction over postjudgment motion to vacate death sen­
    tence because motion not statutorily authorized and same relief could be
    requested in legislatively authorized procedure such as postconviction
    motion); State v. Louthan, 
    257 Neb. 174
    , 186, 
    595 N.W.2d 917
    , 925
    (1999) (holding Legislature “has not enacted a procedure for asserting
    second-tier challenges to prior plea-based [driving under the influence]
    convictions, and thus, unless such a procedure is constitutionally mandated,
    it ‘is unauthorized and, therefore, unavailable under Nebraska criminal
    procedure’”); State v. Miller, 
    240 Neb. 297
    , 
    481 N.W.2d 580
     (1992)
    (holding motions for judgment notwithstanding the verdict allowed in civil
    proceedings, but unauthorized in criminal proceedings).
    9
    See, Melton, 
    supra note 8
    ; Dunster, 
    supra note 8
    ; Miller, 
    supra note 8
    .
    - 248 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. McALEESE
    Cite as 
    311 Neb. 243
    a criminal judgment is not raised in a recognized proceeding,
    the court lacks jurisdiction over the claim. 10
    Here, the county court concluded that it lacked “legal author-
    ity” to reopen the criminal case or vacate and correct the sen-
    tence, and on that basis, it denied the motion. On appeal, the
    district court agreed that the county court lacked jurisdiction to
    vacate and correct McAleese’s sentence, which had long ago
    become a final judgment, and therefore, it affirmed the county
    court’s order denying the motion. We likewise conclude the
    county court lacked subject matter jurisdiction to adjudicate
    the motion filed by McAleese, as there is no recognized crimi-
    nal procedure which authorizes a sentencing court to reopen a
    criminal case after the judgment has become final in order to
    vacate and correct an alleged sentencing error.
    Whether McAleese’s motion is viewed as an unauthorized
    motion to modify a sentence 11 or as an unauthorized collateral
    attack on his criminal judgment, 12 the sentencing court had no
    subject matter jurisdiction to adjudicate the motion, and the
    district court did not err in affirming the county court’s order
    based on a lack of jurisdiction.
    For the sake of completeness, we note that McAleese con-
    tends that his 2010 sentence was “void, at least in part, due to
    its failure to comply with . . . § 60-6,197.01.” 13 We soundly
    reject this characterization.
    [6] It is well-established that a criminal judgment is void
    when the court rendering it lacks jurisdiction or a legal basis
    10
    State v. Rodriguez, 
    288 Neb. 714
    , 
    850 N.W.2d 788
     (2014). See Dunster,
    
    supra note 8
    .
    11
    See, e.g., State v. Irish, 
    298 Neb. 61
    , 
    902 N.W.2d 669
     (2017) (holding
    district court correctly determined it lacked jurisdiction to consider defend­
    ant’s postjudgment motion seeking to reduce license revocation period in
    sentencing order).
    12
    See State v. Barnes, 
    303 Neb. 167
    , 
    927 N.W.2d 64
     (2019) (affirming
    denial of 2018 motion requesting jail credit on 1994 sentence, because
    district court had no statutory authority to consider collateral attack on
    sen­tence which was erroneous but not void).
    13
    Brief for appellant at 15.
    - 249 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. McALEESE
    Cite as 
    311 Neb. 243
    to impose judgment. 14 Here, there is no dispute that in 2010,
    the sentencing court had jurisdiction over McAleese and had
    subject matter jurisdiction over the crime for which he was
    sentenced. The alleged sentencing error raised by McAleese
    does not pertain in any respect to the court’s jurisdiction to
    impose the sentence. Instead, it involves only the court’s
    failure to issue an order pursuant to § 60-6,197.01 when it
    imposed the sentence. This alleged error or irregularity is not
    one which rendered the judgment and sentence void, 15 and
    McAleese’s claim to the contrary is meritless.
    14
    See Sanders v. Frakes, 
    295 Neb. 374
    , 
    888 N.W.2d 514
     (2016). See, also,
    Gray v. Kenney, 
    290 Neb. 888
    , 
    863 N.W.2d 127
     (2015); Peterson v.
    Houston, 
    284 Neb. 861
    , 
    824 N.W.2d 26
     (2012); Rehbein v. Clarke, 
    257 Neb. 406
    , 
    598 N.W.2d 39
     (1999); In re Carbino, 
    117 Neb. 107
    , 
    219 N.W. 846
     (1928); Keller v. Davis, 
    69 Neb. 494
    , 
    95 N.W. 1028
     (1903); In re
    Ream, 
    54 Neb. 667
    , 
    75 N.W. 24
     (1898).
    15
    See, Barnes, 
    supra note 12
    , 
    303 Neb. at 170
    , 927 N.W.2d at 67 (explaining
    “[a] sentence outside of the period authorized for a valid crime is errone­
    ous only; it is not a void sentence” and “failing to give credit for time
    served, while erroneous, does not render the sentence void”); State v.
    Ratumaimuri, 
    299 Neb. 887
    , 
    911 N.W.2d 270
     (2018) (finding incorrect
    determination that Sex Offender Registration Act applies is error that
    does not void application of act); Meyer v. Frakes, 
    294 Neb. 668
    , 676,
    
    884 N.W.2d 131
    , 138 (2016) (holding “failure by the court to impose
    a sentence inside of the mandatory statutory limits for a valid crime is
    erroneous only; it is not a void sentence subject to collateral attack”);
    State v. Woodruff, 
    205 Neb. 638
    , 641, 
    288 N.W.2d 754
    , 757 (1980) (“[a]
    sentence to imprisonment which exceeds the maximum statutory period is
    merely erroneous and not void”); Hickman v. Fenton, 
    120 Neb. 66
    , 
    231 N.W. 510
     (1930) (sentence for less than minimum prescribed by statute is
    erroneous, but not void); McElhaney v. Fenton, 
    115 Neb. 299
    , 
    212 N.W. 612
     (1927) (sentence in excess of statutory period was erroneous, but
    not void); In re Fanton, 
    55 Neb. 703
    , 
    76 N.W. 447
     (1898) (same). See,
    also, State v. Gunther, 
    271 Neb. 874
    , 
    716 N.W.2d 691
     (2006) (sentence
    imposed pursuant to unconstitutional statute is erroneous, but not void);
    State v. Conover, 
    270 Neb. 446
    , 
    703 N.W.2d 898
     (2005) (same); State
    v. Rouse, 
    206 Neb. 371
    , 381, 
    293 Neb. 83
    , 89 (1980) (explaining that
    “[a]n indeterminate sentence imposed for a crime, where not authorized by
    statute, is erroneous but not void”); State v. Alford, 
    6 Neb. App. 969
    , 
    578 N.W.2d 885
     (1998) (same).
    - 250 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. McALEESE
    Cite as 
    311 Neb. 243
    CONCLUSION
    The district court correctly concluded that 9 years after the
    judgment and conviction became final, the county court lacked
    jurisdiction to adjudicate McAleese’s motion to vacate and
    correct his sentence. We therefore affirm the judgment of the
    district court.
    Affirmed.