State v. Thalmann , 302 Neb. 110 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    04/12/2019 09:08 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    STATE v. THALMANN
    Cite as 
    302 Neb. 110
    State of Nebraska, appellee, v.
    Donald R. Thalmann, appellant.
    ___ N.W.2d ___
    Filed January 25, 2019.   No. S-18-111.
    1.	 Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
    that does not involve a factual dispute is determined by an appellate
    court as a matter of law, which requires the appellate court to reach a
    conclusion independent of the lower court’s decision.
    2.	 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, irrespective of
    whether the issue is raised by the parties.
    3.	 Final Orders: Appeal and Error. 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. It is not enough that the right
    itself be substantial; the effect of the order on that right must also
    be substantial.
    4.	 Words and Phrases. A substantial right is an essential legal right, not
    merely a technical right.
    5.	 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.
    Appeal from the District Court for Lancaster County: Jodi L.
    Nelson, Judge. Appeal dismissed.
    Joseph D. Nigro, Lancaster County Public Defender, and
    Matthew F. Meyerle for appellant.
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    STATE v. THALMANN
    Cite as 
    302 Neb. 110
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Heavican, C.J.
    INTRODUCTION
    Donald R. Thalmann was serving a sentence of probation
    following a conviction for possession of a controlled sub-
    stance. After several positive drug and alcohol screens, his
    probation officer sought the imposition of a custodial sanc-
    tion. The district court imposed a 15-day custodial sanction.
    Thalmann appeals. We dismiss Thalmann’s appeal.
    BACKGROUND
    Thalmann was convicted of possession of a controlled sub-
    stance, a Class IV felony, and sentenced to a term of 3
    years’ probation. Just 2 months into that term of probation,
    Thalmann’s probation officer sought the imposition of a cus-
    todial sanction. A hearing was held on the motion for a custo-
    dial sanction.
    At that hearing, the State offered the testimony of Thalmann’s
    probation officer and various exhibits in support of the request
    for a custodial sanction. The district court granted the motion
    and imposed a custodial sanction of 15 days’ imprisonment.
    ASSIGNMENTS OF ERROR
    On appeal, Thalmann assigns that the district court erred in
    (1) considering exhibits 2 and 7 through 9, because receipt of
    those exhibits violated Thalmann’s due process rights, and (2)
    finding there was sufficient evidence to support a finding that
    Thalmann violated the terms of his probation.
    STANDARD OF REVIEW
    [1] A jurisdictional question that does not involve a factual
    dispute is determined by an appellate court as a matter of law,
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    STATE v. THALMANN
    Cite as 
    302 Neb. 110
    which requires the appellate court to reach a conclusion inde-
    pendent of the lower court’s decision.1
    ANALYSIS
    [2] 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, irrespective of
    whether the issue is raised by the parties.2 After reviewing the
    record, we conclude that we lack appellate jurisdiction because
    Thalmann has not appealed from a final order.
    
    Neb. Rev. Stat. § 25-1911
     (Reissue 2016) gives appellate
    courts jurisdiction to review “[a] judgment rendered or final
    order made by the district court . . . for errors appearing on
    the record.” For purposes of appellate jurisdiction, “[a] judg-
    ment is the final determination of the rights of the parties in
    an action.”3 “Any proceeding in a court by which a party pros-
    ecutes another for enforcement, protection, or determination
    of a right or the redress or prevention of a wrong involving
    and requiring the pleadings, process, and procedure provided
    by the code and ending in a final judgment is an action.”4 In
    a criminal case, the judgment from which the appellant may
    appeal is the sentence.5 Here, the sentence was the placement
    of Thalmann on probation.
    Because the order from which Thalmann attempts to appeal
    was not a judgment, we must consider whether it was a final
    order. Under 
    Neb. Rev. Stat. § 25-1902
     (Reissue 2016), the
    three types of final orders which may be reviewed on appeal
    are (1) an order affecting a substantial right in an action that,
    1
    Simms v. Friel, ante p. 1, ___ N.W.2d ___ (2019).
    2
    Last Pass Aviation v. Western Co-op Co., 
    296 Neb. 165
    , 
    892 N.W.2d 108
    (2017).
    3
    
    Neb. Rev. Stat. § 25-1301
    (1) (Reissue 2016).
    4
    Rehn v. Bingaman, 
    157 Neb. 467
    , 479, 
    59 N.W.2d 614
    , 620 (1953).
    5
    State v. Ratumaimuri, 
    299 Neb. 887
    , 
    911 N.W.2d 270
     (2018).
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    STATE v. THALMANN
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    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 a judgment
    is rendered. We have not previously opined on the finality of
    an order imposing a custodial sanction. Because such a sanc-
    tion is common to all three categories of a final order under
    § 25-1902, we turn first to whether this order affects a sub-
    stantial right.
    [3] 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.6 It is not enough that the
    right itself be substantial; the effect of the order on that right
    must also be substantial.7
    [4,5] Regarding the importance of the right affected, we
    often state that a substantial right is an essential legal right,
    not merely a technical right.8 It is a right of “‘substance.’”9
    We have elaborated further that 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 appel-
    lant prior to the order from which he or she is appealing.’”10
    Whether the effect of an order is substantial depends on
    “‘whether it affects with finality the rights of the parties in
    the subject matter.’”11 This aspect of “‘affecting a substan-
    tial right’” also depends on whether the right could other-
    wise be effectively vindicated.12 An order affects a substantial
    6
    State v. Jackson, 
    291 Neb. 908
    , 
    870 N.W.2d 133
     (2015).
    7
    
    Id.
    8
    
    Id.
    9
    
    Id. at 913
    , 870 N.W.2d at 138.
    10
    Id. at 914, 870 N.W.2d at 138.
    11
    Id.
    12
    Id.
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    right when the right would be “‘significantly undermined’”
    or “‘irrevocably lost’” by postponing appellate review.13 The
    duration of the order is relevant to whether its effect on the
    substantial right is substantial.14
    This case presents two distinct rights that are affected by
    the order imposing a custodial sanction of 15 days’ imprison-
    ment. The first is Thalmann’s liberty interest. The second is
    Thalmann’s right to not have his probation revoked, a pos-
    sible consequence because, under 
    Neb. Rev. Stat. § 29-2267
    (3)
    (Reissue 2016), revocation proceedings may be instituted
    against him “in response to a substance abuse or noncriminal
    violation if the probationer has served ninety days of cumula-
    tive custodial sanctions during the current probation term.”
    The second right—the possibility of the revocation of his
    probation—is not a substantial right. The imposition of 15
    days toward the 90 days after which Thalmann’s revocation
    proceeding might be instituted is speculative. Thalmann might
    not have further days of custodial sanction imposed, the State
    might not choose to institute revocation proceedings, or the
    court might deny any request to revoke probation. This right is
    not an essential right, but is a mere technical right.
    Moreover, this right would not be significantly undermined
    or irrevocably lost if it is not reviewed at this time, because
    that right is not at risk as a result of this order. Should proceed-
    ings to revoke Thalmann’s probation be instituted at a later
    date, the merits of this custodial sanction could be addressed in
    an appeal from those proceedings.
    Having concluded that the second right is not substantial, we
    turn to the first right—Thalmann’s liberty interest. We likewise
    conclude that on these facts, such is not a substantial right.
    First, this order does not affect Thalmann’s custodial sta-
    tus under Nebraska law. When Thalmann was sentenced to
    13
    
    Id.
    14
    State v. Jackson, supra note 6.
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    STATE v. THALMANN
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    probation, he was in custody for purposes of Nebraska law.15
    Even after the entry of the district court’s order, Thalmann
    remains on probation. The imposition of the custodial sanction
    does not change his status as being in custody—it simply mod-
    ifies the nature of that custody. During his postrelease supervi-
    sion, Thalmann was always subject to a custodial sanction.
    Moreover, the custodial sanction imposed in this case was
    just 15 days—a relatively brief modification in the nature of
    his custody. Orders of a temporary nature are often not final,
    because the temporary nature of the order prevents it from sub-
    stantially affecting an individual’s rights.16
    Because we conclude that the order imposing a custodial
    sanction did not affect a substantial right, Thalmann does not
    appeal from a final order. Accordingly, we must dismiss his
    appeal for lack of jurisdiction.
    CONCLUSION
    The order imposing a custodial sanction does not affect
    a substantial right and is not final. Accordingly, Thalmann’s
    appeal is dismissed.
    A ppeal dismissed.
    15
    Cf. State v. Styskal, 
    242 Neb. 26
    , 
    493 N.W.2d 313
     (1992).
    16
    See, e.g., In re Interest of Zachary B., 
    299 Neb. 187
    , 
    907 N.W.2d 311
    (2018); State v. Jackson, supra note 6; In re Interest of Danaisha W. et al.,
    
    287 Neb. 27
    , 
    840 N.W.2d 533
     (2013); In re Guardianship of Sophia M.,
    
    271 Neb. 133
    , 
    710 N.W.2d 312
     (2006); In re Interest of T.T., 
    18 Neb. App. 176
    , 
    779 N.W.2d 602
     (2009).