State v. Fredrickson , 305 Neb. 165 ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/15/2020 12:08 AM CDT
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. FREDRICKSON
    Cite as 
    305 Neb. 165
    State of Nebraska, appellant, v.
    Richard A. Fredrickson, appellee.
    ___ N.W.2d ___
    Filed February 28, 2020.   No. S-19-743.
    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 a trial court.
    2. Criminal Law: Right to Counsel: Appeal and Error. A trial court’s
    determination of a defendant’s indigency, requiring court-appointed
    counsel for a defendant in a criminal case, will be upheld on appeal,
    unless the trial court has abused its discretion in such determination.
    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. ____: ____. Appellate jurisdiction is the power and authority conferred
    upon a superior court to reexamine and redetermine causes tried in infe-
    rior courts.
    5. Constitutional Law: Jurisdiction. The Nebraska Constitution confers
    the Nebraska Supreme Court with only “such appellate jurisdiction as
    may be provided by law.”
    6. Courts: Jurisdiction: Legislature: Appeal and Error. In order to have
    jurisdiction over an appeal, appellate jurisdiction must be specifically
    provided by the Legislature.
    7. Jurisdiction: Appeal and Error. An appellate court acquires no juris-
    diction unless the appellant has satisfied the statutory requirements for
    appellate jurisdiction.
    8. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
    to acquire jurisdiction of an appeal, the party must be appealing from a
    final order or a judgment.
    9. Criminal Law: Judgments: Sentences: Appeal and Error. In a
    criminal case, the judgment from which the appellant may appeal is
    the sentence.
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    STATE v. FREDRICKSON
    Cite as 
    305 Neb. 165
    10. Judgments: Words and Phrases. Every direction of the court made or
    entered in writing and not included in a judgment is an order.
    11. Final Orders: Appeal and Error. In order to be a final order which
    an appellate court may review, the lower court’s order must (1) affect
    a substantial right and determine the action and prevent a judgment,
    (2) affect a substantial right and be made during a special proceeding,
    (3) affect a substantial right and be made on summary application in an
    action after a judgment is rendered, or (4) deny a motion for summary
    judgment which was based on the assertion of sovereign immunity or
    the immunity of a government official.
    12. ____: ____. Whether an order affects a substantial right focuses on
    whether the right at issue is substantial and whether the court’s order has
    a substantial impact on that right.
    13. Final Orders. Whether an order affects a substantial right depends
    on whether it affects with finality the rights of the parties in the sub-
    ject matter.
    14. ____. Whether an order affects a substantial right depends on whether
    the right could otherwise effectively be vindicated.
    15. 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.
    Appeal from the District Court for Washington County:
    John E. Samson, Judge. Appeal dismissed.
    Desirae M. Solomon, Deputy Washington County Attorney,
    for appellant.
    David V. Drew, of Drew Law Firm, P.C., L.L.O., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Funke, J.
    The State of Nebraska, through the Washington County
    Attorney’s office, appeals the district court’s order finding
    Richard A. Fredrickson indigent and entitled to court-appointed
    appellate counsel at the expense of Washington County (the
    County). The State argues the court abused its discretion
    because Fredrickson failed to adequately provide his financial
    situation to the lower court, acquired undisclosed additional
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    305 Nebraska Reports
    STATE v. FREDRICKSON
    Cite as 
    305 Neb. 165
    funds during the pendency of the underlying action, and had
    sufficient assets to pay for his legal counsel. Fredrickson,
    in turn, argues that this court lacks jurisdiction to consider
    the State’s appeal and that the district court did not abuse
    its discretion. Because the court’s order finding Fredrickson
    indigent and appointing counsel was neither a judgment nor
    a final, appealable order, we lack jurisdiction and dismiss the
    State’s appeal.
    BACKGROUND
    Fredrickson was charged by amended information with pos-
    session of a deadly weapon, robbery, and use of a deadly
    weapon to commit a felony for events occurring on April
    11, 2018.
    At his initial hearing before the county court on April 16,
    2018, Fredrickson was advised of his rights, including his
    right to counsel. In its journal entry and order, the county court
    stated that Fredrickson was to file a poverty affidavit, that
    Fredrickson was “adjudged indigent,” and that counsel was
    appointed to represent Fredrickson at the County’s expense.
    On the same date, the county court entered a separate order
    restating its appointment of counsel. Fredrickson never filed
    the poverty affidavit, and the case was moved to the dis-
    trict court.
    In district court, Fredrickson entered a no contest plea to
    robbery in exchange for the State’s dismissing the remaining
    counts. The State then filed a motion to determine Fredrickson’s
    indigent status, noting Fredrickson’s failure to file the poverty
    affidavit and alleging Fredrickson may have sufficient funds
    to compensate the County for legal work performed. The State
    also filed a motion to dispose of property, requesting the sale
    of Fredrickson’s impounded vehicle allegedly used in the
    commission of the robbery. The State asked that any funds
    acquired from such sale be directed by the court to reimburse
    the County for Fredrickson’s representation.
    Immediately prior to sentencing, a hearing was held on the
    State’s two motions. At the hearing, counsel for Fredrickson
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    STATE v. FREDRICKSON
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    alleged that although Fredrickson had failed to turn in the affi-
    davit, he had filled one out. The court instructed Fredrickson to
    complete a new form with his then-current financial informa-
    tion. Under this affidavit, Fredrickson averred that his vehicle
    was worth $9,000, which was the price he had originally paid
    for it, and that he had a bank account with a $13,000 balance.
    The affidavit also indicated that Fredrickson was obligated to
    pay child support in the amount of $100 per month for each of
    his two children. According to Fredrickson, his savings were
    being managed by his “power of attorney person” for the con-
    tinued payment of child support.
    After Fredrickson provided the completed financial affidavit,
    the court took up the State’s motion for the sale of Fredrickson’s
    vehicle. Fredrickson did not object to the vehicle’s sale, and the
    court ordered that any money derived from the sale of the vehi-
    cle be applied to court costs and as restitution to the County
    for any of Fredrickson’s court-appointed attorney fees. The
    court further ordered that any money received from the sale of
    the vehicle in excess of the attorney fees be paid to the person
    holding Fredrickson’s power of attorney and used for payment
    of child support. In the event the sale of the vehicle produced
    insufficient funds to cover the court costs and attorney fees, the
    court denied the State’s request for further reimbursement from
    Fredrickson’s savings and other available assets.
    After the hearing on the State’s motions, the court proceeded
    to sentence Fredrickson to a term of incarceration. At sentenc-
    ing, Fredrickson continued to be represented by his court-
    appointed counsel.
    Fredrickson subsequently appealed his conviction and sen-
    tence and filed a motion for appointment of appellate counsel.
    Along with his motion, Fredrickson filed a new financial affi-
    davit in which he claimed he had $10,000 to $14,000 in a bank
    account which was to be used “solely for payments of child
    support to maintain current status.” The affidavit stated this
    child support was $200 per month. The State filed an objection
    to Fredrickson’s alleged indigent status.
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    STATE v. FREDRICKSON
    Cite as 
    305 Neb. 165
    A hearing was held on Fredrickson’s motion for appoint-
    ment of appellate counsel and the State’s objection. During
    the hearing, the State submitted a real estate transfer statement
    concerning a property in which Fredrickson was indicated
    to have a one-half interest and which sold for $180,000 in
    July 2018.
    Fredrickson conceded that the property, which he owned
    with his father, was sold and that he received about $80,000
    from the sale. Fredrickson explained that he was incarcer-
    ated during and since the sale of the property so the per-
    son holding his power of attorney had made expenditures
    from the sale’s funds for “any financial things that I would
    have had to have taken care of, anything like that, children,
    holidays, whatever, has been taken care of out of that.”
    Fredrickson testified that the $10,000 to $14,000 listed on
    his financial affidavit was what was left of the $80,000 after
    those expenses. Fredrickson also clarified that his child sup-
    port obligation may have changed since the filing of his
    affidavit and is at least $100 per month and at most $200
    per month.
    On July 12, 2019, the district court entered an order finding
    Fredrickson was entitled to court-appointed appellate counsel
    according to the information contained within his financial
    affidavit. As such, the court appointed to Fredrickson appel-
    late counsel at the County’s expense. The court explained that
    Fredrickson was advised, in the event the financial affidavit
    contained incorrect information, he may be ordered to reim-
    burse the County for his appellate attorney fees. On July 30,
    the State filed a notice of appeal of the July 12 order.
    ASSIGNMENTS OF ERROR
    The State assigns, restated, that the district court abused
    its discretion in declining to apply Fredrickson’s savings and
    other available assets to reimburse the County for any court-
    appointed appellate attorney fees in excess of the amount
    received from the sale of Fredrickson’s impounded vehicle.
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    STATE v. FREDRICKSON
    Cite as 
    305 Neb. 165
    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 a
    trial court.1
    [2] A trial court’s determination of a defendant’s indigency,
    requiring court-appointed counsel for a defendant in a criminal
    case, will be upheld on appeal, unless the trial court has abused
    its discretion in such determination.2
    ANALYSIS
    [3-7] 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.3 Appellate jurisdiction
    is the power and authority conferred upon a superior court
    to reexamine and redetermine causes tried in inferior courts.4
    The Nebraska Constitution confers the Nebraska Supreme
    Court with only “such appellate jurisdiction as may be pro-
    vided by law.”5 In order to have jurisdiction over an appeal,
    appellate jurisdiction must be specifically provided by the
    Legislature.6 An appellate court acquires no jurisdiction unless
    the appellant has satisfied the statutory requirements for appel-
    late jurisdiction.7
    [8-10] For an appellate court to acquire jurisdiction of an
    appeal, the party must be appealing from a final order or a
    judgment.8 A judgment is the final determination of the rights
    1
    State v. Coble, 
    299 Neb. 434
    , 
    908 N.W.2d 646
    (2018).
    2
    State v. Richter, 
    225 Neb. 837
    , 
    408 N.W.2d 717
    (1987).
    3
    Coble, supra note 1.
    4
    Webb v. Nebraska Dept. of Health & Human Servs., 
    301 Neb. 810
    , 
    920 N.W.2d 268
    (2018).
    5
    Neb. Const. art. V, § 2.
    6
    See Webb, supra note 4.
    7
    Id. 8 Id.
    See Neb. Rev. Stat. § 25-1911 (Reissue 2016).
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    STATE v. FREDRICKSON
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    305 Neb. 165
    of the parties in an action.9 In this case, the State is appeal-
    ing the district court’s finding that Fredrickson was indigent
    and entitled to appellate counsel for his appeal of his crimi-
    nal conviction and sentence. In a criminal case, the judgment
    from which the appellant may appeal is the sentence,10 and
    every direction of the court made or entered in writing and
    not included in a judgment is an order.11 Thus, the indigency
    finding and appointment of appellate counsel is not a judg-
    ment but is, instead, an order. We thus turn to the question of
    whether this order was a final order sufficient to confer appel-
    late jurisdiction.
    [11] In order to be a final order which an appellate court
    may review, the lower court’s order must (1) affect a substan-
    tial right and determine the action and prevent a judgment,
    (2) affect a substantial right and be made during a special
    proceeding, (3) affect a substantial right and be made on sum-
    mary application in an action after a judgment is rendered, or
    (4) deny a motion for summary judgment which was based
    on the assertion of sovereign immunity or the immunity of a
    government official.12 Because the order at issue here was not
    on a motion for summary judgment and all three remaining
    categories of final orders under § 25-1902 affect a substan-
    tial right in the action, it is unnecessary to evaluate the three
    categories individually unless the order affects a substan-
    tial right.13
    [12-15] Numerous factors determine whether an order affects
    a substantial right for purposes of appeal.14 The inquiry focuses
    9
    Neb. Rev. Stat. § 25-1301 (Cum. Supp. 2018).
    10
    State v. Ratumaimuri, 
    299 Neb. 887
    , 
    911 N.W.2d 270
    (2018).
    11
    See Webb, supra note 4.
    12
    See Neb. Rev. Stat. § 25-1902 (Supp. 2019).
    13
    See Mutual of Omaha Bank v. Watson, 
    301 Neb. 833
    , 
    920 N.W.2d 284
         (2018).
    14
    In re Grand Jury of Douglas Cty., 
    302 Neb. 128
    , 
    922 N.W.2d 226
    (2019);
    Deines v. Essex Corp., 
    293 Neb. 577
    , 
    879 N.W.2d 30
    (2016).
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    STATE v. FREDRICKSON
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    on whether the right at issue is substantial and whether the
    court’s order has a substantial impact on that right.15 Whether
    an order affects a substantial right depends on whether it affects
    with finality the rights of the parties in the subject matter.16 It
    also depends on whether the right could otherwise effectively
    be vindicated.17 An order affects a substantial right when the
    right would be significantly undermined or irrevocably lost by
    postponing appellate review.18
    The County filed a notice of appeal on July 30, 2019, as
    though it were taking an ordinary appeal under § 29-1902 and
    Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018), and we must
    therefore analyze jurisdiction according to the ordinary prin-
    ciples of appellate jurisdiction just recited.
    The order finding Fredrickson indigent and entitled to
    appellate counsel did not affect a substantial right. First, while
    the order stated Fredrickson was entitled to the appointment of
    appellate counsel at the County’s expense, it did not obligate
    the County to pay any specific amount or set a deadline for
    payment. Such determinations are to be the subject of future
    proceedings addressing the question of reasonable attorney
    fees. At that point, the State is entitled to object and seek
    appellate review because the determination of attorney fees
    and expenses of court-appointed counsel are the final deter-
    mination of the County’s right to avoid expending its funds
    on a defendant’s representation.19 The current order stating
    the County may be obligated to pay some unknown amount
    at some unknown future date does not substantially impact
    the County.
    15
    In re Grand Jury of Douglas Cty., supra note 14.
    16
    Id. 17 Id.
    18
    Id. 19 See
    In re Claim of Rehm and Faesser, 
    226 Neb. 107
    , 
    410 N.W.2d 92
         (1987).
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    STATE v. FREDRICKSON
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    305 Neb. 165
    Further, the current order does not affect a substantial right
    of the State because it is not the final determination obligat-
    ing the payment of Fredrickson’s appellate attorney fees. As
    explained above, the State has the ability to contest requested
    fees as they come before the court for approval. Additionally,
    the State can challenge the finding of Fredrickson’s indi-
    gency through Neb. Rev. Stat. § 29-3908 (Reissue 2016),
    which provides:
    Whenever any court finds subsequent to its appoint-
    ment of . . . counsel to represent a felony defendant that
    its initial determination of indigency was incorrect or that
    during the course of representation by appointed counsel
    the felony defendant has become no longer indigent, the
    court may order such felony defendant to reimburse the
    county for all or part of the reasonable cost of providing
    such representation.
    Thus, even though the order appointing appellate counsel
    specified that it is at the County’s expense, the State is able
    to seek reconsideration and can challenge the underlying find-
    ing of indigency and recoup any subsequently expended funds
    from the defendant.
    Prior to the appointment of appellate counsel, which is
    the order at issue here, the State utilized this statutory right
    to ask the district court to review its indigency finding from
    the appointment of trial counsel in its motion to determine
    defendant’s indigent status. Although the court did not modify
    its previous indigency determination, it did order that the
    State could sell Fredrickson’s vehicle and apply the money to
    Fredrickson’s attorney fees.
    Additionally, in the appointment of appellate counsel,
    Fredrickson was advised that in the event the financial affida-
    vit contained incorrect information, he may be ordered to reim-
    burse the County for his appellate attorney fees. The State’s
    motion to determine indigency and the court’s advisement
    demonstrate our analysis that the initial finding of indigency
    and appointing of appellate counsel at the County’s expense
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    STATE v. FREDRICKSON
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    305 Neb. 165
    was not the final determination of the State’s obligation to pay
    for Fredrickson’s representation.
    The State makes some argument that postponing the review
    of the court’s indigency determination would undermine its
    right to avoid paying attorney fees for individuals with suf-
    ficient funds when they are initially determined indigent.
    In making this argument, the State claims § 29-3908 is
    insufficient to protect its rights because it would be diffi-
    cult to recoup the money from incarcerated criminal defend­
    ants. This argument is without merit. Although recovery
    of attorney fees may be, at times, difficult, the Nebraska
    Legislature has specified the process for determination of
    the County’s rights and recovery of funds when there is a
    subsequent modification of an indigency finding. This argu-
    ment is insufficient to show a significant undermining of the
    State’s right.
    We also note that the finding of Fredrickson’s indigency
    and the appointment of counsel does not affect any of
    Fredrickson’s substantial rights. Although Fredrickson has a
    right to counsel, the court’s order appointing counsel upheld
    this right and Fredrickson’s right was not aggrieved. Because
    Fredrickson was appointed counsel, his right to counsel was
    not significantly undermined or irrevocably lost.20
    Considering all of the above, the order finding Fredrickson
    indigent and appointing appellate counsel at the County’s
    expense did not affect a substantial right of the parties and was
    not a final order for purposes of review. Thus, we lack juris-
    diction to consider this appeal.
    During oral argument, there was discussion as to whether
    Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2018) permits
    the State to appeal orders of the court rather than only those
    classified as final orders. This statute expresses an exception
    to the general rule that the State cannot appeal an adverse
    ruling in a criminal case and provides additional, required
    20
    See In re Grand Jury of Douglas Cty., supra note 14.
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    steps the State must take to make such an appeal.21 In explain-
    ing the additional filing requirements, the first sentence of
    § 29-2315.01 states the State may take exception to “any rul-
    ing or decision.” However, § 29-2315.01 clarifies that these
    filings must occur after a final order by setting time limita-
    tions which begin to run “after the final order is entered in the
    cause.” Therefore, § 29-2315.01 does not grant the State the
    ability to appeal an order finding indigency and appointing
    counsel prior to the issuance of a final order.
    Because the order finding that Fredrickson is indigent and
    entitled to court-appointed appellate counsel is not a judgment
    or a final, appealable order, we decline to address whether we
    also lack jurisdiction due to the State’s failing to meet the fil-
    ing requirements of § 29-2315.01 and do not reach the merits
    of the State’s assignments of error on appeal.
    CONCLUSION
    The district court’s order finding Fredrickson indigent and
    appointing appellate counsel was not a judgment or a final,
    appealable order. Accordingly, we lack jurisdiction to consider
    this appeal and it is dismissed.
    Appeal dismissed.
    21
    See § 29-2315.01.