State v. Kelley , 305 Neb. 409 ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    06/05/2020 01:08 AM CDT
    - 409 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. KELLEY
    Cite as 
    305 Neb. 409
    State of Nebraska, appellee, v.
    William T. Kelley, appellant.
    ___ N.W.2d ___
    Filed March 27, 2020.    No. S-19-227.
    1. Judgments: Jurisdiction: Appeal and Error. Determination of a juris-
    dictional issue which does not involve a factual dispute is a matter of
    law, which requires an appellate court to reach its conclusions indepen-
    dent from those of a trial court.
    2. Jurisdiction: Appeal and Error. Before reaching the merits of the
    issues presented for review, it is an appellate court’s duty to determine
    whether it has jurisdiction to decide them.
    3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
    to acquire jurisdiction of an appeal, there must be a final order or final
    judgment entered by the court from which the appeal is taken.
    4. Criminal Law: Judgments: Sentences: Appeal and Error. In a crimi-
    nal case, the judgment from which the appellant may appeal is the
    sentence.
    5. Double Jeopardy: Pleadings: Final Orders. Under Neb. Rev. Stat.
    § 25-1902 (Reissue 2016), a plea in bar is a “special proceeding,” and
    an order overruling a nonfrivolous double jeopardy claim affects a sub-
    stantial right.
    6. Double Jeopardy. The Double Jeopardy Clause protects against three
    distinct abuses: (1) a second prosecution for the same offense after
    acquittal, (2) a second prosecution for the same offense after conviction,
    and (3) multiple punishments for the same offense.
    7. Double Jeopardy: Juries: Evidence: Pleas. In Nebraska, jeopardy
    attaches (1) in a case tried to a jury, when the jury is impaneled and
    sworn; (2) when a judge, hearing a case without a jury, begins to hear
    evidence as to the guilt of the defendant; or (3) at the time the trial court
    accepts the defendant’s guilty plea.
    Appeal from the District Court for Gage County: Vicky L.
    Johnson, Judge. Appeal dismissed.
    - 410 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. KELLEY
    Cite as 
    305 Neb. 409
    Timothy S. Noerrlinger for appellant.
    Douglas J. Peterson, Attorney General, and Melissa R.
    Vincent for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Papik, J.
    William T. Kelley appeals the denial of his plea in bar,
    in which he claimed that charges that he committed sexual
    assaults should be barred because the State agreed not to pros-
    ecute him for those charges in a prior plea agreement. Kelley’s
    plea in bar did not, however, present a colorable double jeop-
    ardy claim. Accordingly, we lack appellate jurisdiction and
    have no choice but to dismiss the appeal.
    BACKGROUND
    In August 2018, Kelley was charged by information with
    one count of first degree sexual assault and one count of
    third degree sexual assault of a child. Kelley was alleged to
    have committed the first degree sexual assault between June
    1, 2007, and January 11, 2008. Kelley was alleged to have
    committed the third degree sexual assault of a child between
    September 1, 2007, and January 12, 2008. The victim of both
    crimes was alleged to be T.K.
    Kelley filed a plea in bar. In the plea in bar, he asserted
    that in March 2009, he entered guilty pleas to multiple crimi-
    nal charges in two different criminal cases. Kelley claimed
    that he pleaded guilty to those charges as part of an agree-
    ment in which the State agreed not to bring any charges
    alleging that he sexually assaulted T.K. Kelley contended
    that by filing criminal charges it had previously agreed not
    to bring, the State was violating rights guaranteed to him by
    the Double Jeopardy Clauses of the federal and the Nebraska
    Constitutions.
    The district court held a hearing on Kelley’s plea in bar.
    The evidence introduced at the hearing showed that in 2009,
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. KELLEY
    Cite as 
    305 Neb. 409
    after Kelley had been charged with multiple crimes in two
    different criminal cases, Kelley and the State entered into a
    written plea agreement. Pursuant to that agreement, Kelley
    pleaded guilty to various offenses, the court accepted his
    pleas, and he was found guilty and sentenced accordingly.
    The written plea agreement did not include a promise by the
    State not to prosecute Kelley for alleged assaults on T.K. It
    also included a clause that stated, “[t]he parties to this plea
    agreement state and acknowledge that this document contains
    all of the promises, agreements, and understandings between
    the parties.”
    Despite the absence of any indication in the written plea
    agreement that the State was agreeing not to charge Kelley
    with any charges pertaining to T.K., Kelley claimed that was,
    in fact, part of the agreement. In support of that argument,
    Kelley called his attorney in the prior criminal cases as a wit-
    ness. That attorney testified that an agreement not to prosecute
    Kelley for alleged assaults on T.K. was part of the agreement
    he reached with the prosecutor and that Kelley’s counsel
    had inadvertently omitted it from the written plea agreement.
    Kelley also testified and asserted that the “only reason” he
    agreed to the plea agreement was the State’s agreement not to
    prosecute him for assaults on T.K. The prosecutor in the prior
    criminal cases, however, testified that an agreement not to
    prosecute Kelley for alleged assaults on T.K. was not part of
    the agreement.
    The district court overruled the plea in bar. Kelley appealed.
    ASSIGNMENTS OF ERROR
    Kelley assigns two errors on appeal. He contends that the
    district court erred by overruling his plea in bar. He also asserts
    that he received ineffective assistance of counsel.
    STANDARD OF REVIEW
    [1] 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 those
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. KELLEY
    Cite as 
    305 Neb. 409
    of a trial court. Griffith v. Nebraska Dept. of Corr. Servs., 
    304 Neb. 287
    , 
    934 N.W.2d 169
    (2019).
    ANALYSIS
    [2] Before reaching the merits of the issues presented for
    review, it is our duty to determine whether we have jurisdic-
    tion to decide them. See Green v. Seiffert, 
    304 Neb. 212
    , 
    933 N.W.2d 590
    (2019). As we will explain, after exercising that
    duty here, we find that we do not have jurisdiction.
    [3,4] For an appellate court to acquire jurisdiction of an
    appeal, there must be a final order or final judgment entered
    by the court from which the appeal is taken. State v. Paulsen,
    
    304 Neb. 21
    , 
    932 N.W.2d 849
    (2019). In a criminal case, the
    judgment from which the appellant may appeal is the sentence.
    Id. Kelley has
    not been sentenced in this case, so we may only
    exercise jurisdiction if he has appealed from a final order.
    Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the four types
    of final orders which may be reviewed on appeal are (1) an
    order affecting a substantial right in an action that, in effect,
    determines the action and prevents a judgment; (2) an order
    affecting a substantial right made during a special proceeding;
    (3) an order affecting a substantial right made on summary
    application in an action after judgment is rendered; and (4)
    an order denying a motion for summary judgment when such
    motion is based on the assertion of sovereign immunity or the
    immunity of a government official.
    [5] Kelley contends that our precedent recognizes that an
    order overruling a plea in bar is a final order. We have held
    that a plea in bar is a “special proceeding,” for purposes
    of § 25-1902, and that an order overruling a nonfrivolous
    double jeopardy claim affects a substantial right. See State v.
    Williams, 
    278 Neb. 841
    , 
    774 N.W.2d 384
    (2009). Based on
    this reasoning, we have reviewed several cases in which the
    trial court overruled a plea in bar, but the defendant presented
    a colorable double jeopardy claim. See, e.g., State v. Huff,
    
    279 Neb. 68
    , 70, 
    776 N.W.2d 498
    , 501 (2009) (“[appellant’s]
    plea in bar raises a colorable double jeopardy claim, and we
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. KELLEY
    Cite as 
    305 Neb. 409
    therefore have jurisdiction over this interlocutory appeal”).
    See, also, State v. Bedolla, 
    298 Neb. 736
    , 
    905 N.W.2d 629
    (2018); State v. Combs, 
    297 Neb. 422
    , 
    900 N.W.2d 473
    (2017);
    
    Williams, supra
    .
    In this case, however, we find that Kelley has not presented
    such a claim. Kelley does assert that the State could not, con-
    sistent with the Double Jeopardy Clauses of the federal and
    Nebraska Constitutions, charge him with sexually assaulting
    T.K. He claims that is the case because the State agreed in the
    plea agreement not to do so. He has never, however, explained
    why the State’s alleged breach of the plea agreement amounts
    to a violation of double jeopardy.
    [6] Not only has Kelley not made an argument that the
    Double Jeopardy Clauses preclude the State from charging
    him with sexually assaulting T.K., we cannot conceive of a
    colorable one. And that is true even if we assume that the
    State agreed in the plea agreement not to bring charges against
    Kelley alleging that he sexually assaulted T.K. The Double
    Jeopardy Clause protects against three distinct abuses: (1) a
    second prosecution for the same offense after acquittal, (2)
    a second prosecution for the same offense after conviction,
    and (3) multiple punishments for the same offense. State v.
    Manjikian, 
    303 Neb. 100
    , 
    927 N.W.2d 48
    (2019). Nothing in
    our record indicates that Kelley has previously been acquitted,
    convicted, or punished for sexually assaulting T.K.
    [7] Neither is there anything in our record indicating that
    Kelley will be twice placed in jeopardy for sexually assault-
    ing T.K. In Nebraska, jeopardy attaches (1) in a case tried to a
    jury, when the jury is impaneled and sworn; (2) when a judge,
    hearing a case without a jury, begins to hear evidence as to the
    guilt of the defendant; or (3) at the time the trial court accepts
    the defendant’s guilty plea.
    Id. As far
    as our record discloses,
    prior to the filing of the information in this case, Kelley had
    not ever been charged with sexually assaulting T.K. and pro-
    ceedings had certainly not progressed to the point that jeopardy
    had attached with respect to such charges.
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. KELLEY
    Cite as 
    305 Neb. 409
    The fact that Kelley has assigned as error on appeal that he
    received ineffective assistance of counsel does not change our
    analysis. Kelley argues that his counsel in the prior criminal
    cases provided ineffective assistance by failing to include lan-
    guage in the written plea agreement that the State would not
    bring charges against Kelley alleging that he sexually assaulted
    T.K. We question whether a party can assert that counsel in a
    prior criminal case was ineffective in the context of a plea in
    bar, but even if that is set to the side and even if we assume
    that Kelley’s ineffective assistance of counsel allegation has
    merit, we see no basis to say that rights guaranteed to Kelley
    by the Double Jeopardy Clauses have been violated.
    Our decision today should not be read to hold that a defend­
    ant has no remedy if the State pursues charges it previously
    agreed not to bring as part of a plea agreement. Indeed, we
    have previously noted that “when the State breaches a plea
    agreement, the defendant generally has the option of either
    having the agreement specifically enforced or withdrawing his
    or her plea.” State v. Smith, 
    295 Neb. 957
    , 972, 
    892 N.W.2d 52
    ,
    63 (2017). But as Kelley’s counsel acknowledged in oral argu-
    ment, the only remedy he has pursued is a plea in bar based
    on an alleged double jeopardy violation. Because Kelley has
    not asserted a colorable double jeopardy claim, however, we
    lack jurisdiction to decide anything else and are obligated to
    dismiss the appeal.
    CONCLUSION
    Because Kelley has not presented a colorable double jeop-
    ardy claim, the order overruling his plea in bar was not a final,
    appealable order. Accordingly, we dismiss the appeal for lack
    of jurisdiction.
    Appeal dismissed.
    Freudenberg, J., not participating.