State v. Paulsen , 304 Neb. 21 ( 2019 )


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    10/18/2019 01:07 AM CDT
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    304 Nebraska R eports
    STATE v. PAULSEN
    Cite as 
    304 Neb. 21
    State of Nebraska, appellee, v.
    Larry Paulsen, appellant.
    ___ N.W.2d ___
    Filed September 6, 2019.   No. S-18-936.
    1. Jurisdiction: Appeal and Error. A jurisdictional question which does
    not involve a factual dispute is determined by an appellate court as a
    matter of law.
    2. 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.
    3. Jurisdiction: Judgments: Words and Phrases: Appeal and Error. For
    purposes of appellate jurisdiction, a judgment is the final determination
    of the rights of the parties in an action.
    4. Final Orders: Appeal and Error. 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,
    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.
    5. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902
    (Reissue 2016) include those legal rights that a party is entitled to
    enforce or defend.
    6. Probation and Parole: Appeal and Error. Claim-specific standards of
    review apply to an appeal of an order refusing to modify or eliminate a
    probation condition.
    Appeal from the District Court for Dawson County: James
    E. Doyle IV, Judge. Affirmed.
    Christopher Ferdico and Erik W. Fern, of Berry Law Firm,
    for appellant.
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    STATE v. PAULSEN
    Cite as 
    304 Neb. 21
    Douglas J. Peterson, Attorney General, and Siobhan E.
    Duffy for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Per Curiam.
    Over 6 months after the district court for Dawson County
    sentenced him to probation and imposed various terms thereof,
    Larry Paulsen filed a motion to modify one of those terms
    relating to possession of firearms. The district court denied
    the motion, and Paulsen has appealed. We conclude that the
    district court did not err in denying Paulsen’s motion and there-
    fore affirm.
    BACKGROUND
    Conviction and Sentence.
    Paulsen’s conviction in this case arose out of the district
    court’s acceptance of his plea of guilty to driving under the
    influence, second offense. The district court set forth its sen-
    tence in a journal entry filed on January 16, 2018, in which
    it stated that it was sentencing Paulsen to jail for 30 days and
    probation for 24 months “under the terms and conditions set by
    the Court.” The district court also revoked Paulsen’s driver’s
    license for 18 months and ordered him to pay a $1,000 fine.
    The district court later entered an order setting forth various
    conditions to which Paulsen would be subject during his 24
    months of probation. One of the conditions states that Paulsen
    shall not “have nor associate with anyone who has possession
    of firearms, ammunition, or illegal weapons.”
    Paulsen did not appeal his conviction or sentence.
    Motion to Modify Probation Order.
    On August 28, 2018, Paulsen filed a motion to modify the
    terms of his probation under Neb. Rev. Stat. § 29-2263(3)
    (Reissue 2016). Paulsen asked the district court to remove the
    term of probation relating to firearms. In the motion, Paulsen
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    STATE v. PAULSEN
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    304 Neb. 21
    asserted that he had “always been a collector of different fire-
    arms, including mostly hunting rifles or shotguns,” that he had
    “always been in possession of those weapons in his residence,”
    but that he “recently had that room locked up by Dawson
    County Probation and the keys to the room were delivered
    to [his] counsel.” Paulsen alleged that he had no history of
    violence, that there was no evidence any of his driving under
    the influence convictions were caused by firearm ownership,
    and that there was thus no reasonable connection between
    his rehabilitation and the firearms restriction in the probation
    order. Paulsen also stated that he had not been sanctioned since
    beginning his probation term.
    The State did not object to Paulsen’s motion, and conse-
    quently, the district court considered it without a hearing. In
    a written order, the district court denied Paulsen’s motion. It
    explained that the firearms restriction is part of the court’s
    usual and customary terms of probation and that it is included
    to protect the public and probation officers. The district court
    then noted that in ruling on requests to modify probation con-
    ditions, it considers whether there has been a material change
    in circumstances which arose after the entry of the probation
    order. The district court found that Paulsen had not identified
    a material change in circumstances or any other reason that
    would entitle him to the relief sought. There is no indication
    in the record that the administration of probation ceased during
    the pendency of this appeal.
    Paulsen appeals the order denying modification.
    ASSIGNMENT OF ERROR
    Paulsen contends that the district court erred by overruling
    his motion for modification of his probation order.
    STANDARD OF REVIEW
    [1] A jurisdictional question which does not involve a
    factual dispute is determined by an appellate court as a mat-
    ter of law. State v. McGuire, 
    301 Neb. 895
    , 
    921 N.W.2d 77
    (2018).
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    The standard of review governing orders denying a motion
    to modify probation are discussed further in the analysis sec-
    tion below.
    ANALYSIS
    Paulsen contends that the district court erred by denying his
    request to eliminate the condition of his probation relating to
    firearms. Before we may reach that question, however, we must
    ensure we have appellate jurisdiction. See State v. Uhing, 
    301 Neb. 768
    , 
    919 N.W.2d 909
    (2018). We have an independent
    obligation to ensure we have appellate jurisdiction, 
    id., and in
    this case, the State also contends appellate jurisdiction
    is lacking.
    Jurisdiction.
    [2,3] 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. Simms v. Friel,
    
    302 Neb. 1
    , 
    921 N.W.2d 369
    (2019). For purposes of appel-
    late jurisdiction, a judgment is the final determination of the
    rights of the parties in an action. State v. Thalmann, 
    302 Neb. 1
    10, 
    921 N.W.2d 816
    (2019). In a criminal case, the judgment
    from which the appellant may appeal is the sentence. 
    Id. Here, the
    sentencing order was entered on January 16, 2018, and
    the order setting forth the terms of Paulsen’s probation was
    entered on February 22. Paulsen did not timely appeal from
    either of those orders and therefore did not timely appeal from
    a final judgment.
    [4] The jurisdictional question before us is thus whether the
    order denying Paulsen’s motion for modification of his proba-
    tion terms 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, 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
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    after a judgment is rendered. State v. 
    Thalmann, supra
    . We find
    that the order from which Paulsen appeals falls into the third
    category for reasons we will explain.
    Starting with the most straightforward aspect of the third
    category of final orders, the district court’s order was made
    “upon a summary application in an action after judgment.”
    See § 25-1902. We have said that an order made “upon a sum-
    mary application in an action after judgment” under § 25-1902
    is “‘an order ruling on a postjudgment motion in an action.’”
    See State v. Coble, 
    299 Neb. 434
    , 438, 
    908 N.W.2d 646
    , 651
    (2018). See, also, John. P. Lenich, What’s So Special About
    Special Proceedings? Making Sense of Nebraska’s Final Order
    Statute, 
    80 Neb. L
    . Rev. 239, 313 (2001) (“only reasonable
    interpretation of the words of the statute . . . is that an order
    ‘upon a summary application in an action after jugdment’ is
    an order ruling on a post-judgment motion in an action”).
    Paulsen’s motion seeking a modification of his probation terms
    plainly meets that definition.
    While a more difficult question, we also find that an order
    denying a motion to modify or eliminate a probation condition
    affects a substantial right. We have identified many factors that
    define when an order affects a substantial right. Broadly, these
    factors relate to the importance of the right and the impor-
    tance of the effect on the right by the order at issue. State v.
    Thalmann, 
    302 Neb. 1
    10, 
    921 N.W.2d 816
    (2019).
    Regarding the importance of the right affected, we often
    state that a substantial right is an essential legal right, not
    merely a technical right. See, e.g., 
    id. Also relevant
    to the
    importance of the right, we have stated 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
    appellant prior to the order from which he or she is appealing.
    See 
    id. Whether the
    effect of an order is substantial depends
    on whether it affects with finality the rights of the parties in
    the subject matter. 
    Id. This aspect
    of affecting a substantial
    right also depends on whether the right could otherwise be
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    effectively vindicated. 
    Id. An order
    affects a substantial right
    when the right would be significantly undermined or irrevoca-
    bly lost by postponing appellate review. 
    Id. In order
    to determine whether an order denying a motion to
    modify a probation condition affects a right that is sufficiently
    important to be classified as substantial, we must consider the
    source and nature of the right asserted. Paulsen contends that
    § 29-2263(3) confers a substantial right that was affected by
    the district court’s order denying his motion to modify. The
    text of § 29-2263(3) provides: “During the term of probation,
    the court on application of a probation officer or of the pro-
    bationer . . . may modify or eliminate any of the conditions
    imposed on the probationer or add further conditions autho-
    rized by [Neb. Rev. Stat. § 29-2262 (Reissue 2016)].”
    Section 29-2263(3) gives trial courts the authority to modify
    or eliminate conditions of probation “[d]uring the term of
    probation.” Because a defendant’s term of probation will not
    begin until after the sentence is pronounced, § 29-2263(3)
    creates an exception to the general rule that, once a valid
    criminal sentence has been put into execution, the trial court
    cannot modify, amend, or revise it in any way, either during
    or after the term or session of court at which the sentence was
    imposed. See, e.g., State v. Marrs, 
    272 Neb. 573
    , 
    723 N.W.2d 499
    (2006). In other words, while other aspects of a criminal
    sentence are quite static, § 29-2263(3) allows a court to make
    adjustments to conditions of probation as changing circum-
    stances warrant.
    Section 29-2263(3) is not so explicit about the standards
    trial courts are to apply when considering whether to modify
    or eliminate probation terms. But § 29-2263(3) is part of a
    collection of statutes dealing with probation. As we often say,
    such a collection of statutes pertaining to a single subject mat-
    ter “are in pari materia and should be conjunctively consid-
    ered and construed to determine the intent of the Legislature,
    so that different provisions are consistent, harmonious, and
    sensible.” See State v. McGuire, 
    301 Neb. 895
    , 901, 921
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    N.W.2d 77, 83 (2018). And another statute in this collection of
    statutes, Neb. Rev. Stat. § 29-2262 (Reissue 2016), addresses
    the standards courts are to consider in imposing conditions
    of probation.
    Section 29-2262 provides trial courts with considerable
    discretion in fashioning conditions of probation, but also pro-
    vides some guidance as to what courts are to consider in doing
    so. Section 29-2262(1) directs courts sentencing an offender
    to probation to “attach such reasonable conditions as it deems
    necessary or likely to insure that the offender will lead a
    law-abiding life.” Section 29-2262(2) sets forth a number of
    specific conditions that a court may impose and also states
    that “any other conditions reasonably related to the rehabili-
    tation of the offender” may be imposed. In addition to these
    limitations on permissible probation conditions, some proba-
    tion conditions may also be subject to constitutional limita-
    tions. See, e.g., State v. Rieger, 
    286 Neb. 788
    , 
    839 N.W.2d 282
    (2013).
    Mindful of our obligation to read § 29-2263(3) in pari
    materia with § 29-2262, we believe § 29-2263(3) is best read
    as giving a probationer the right to initiate a process where
    the sentencing court may assess whether, in light of new cir-
    cumstances arising during the course of probation and within
    the bounds of constitutional limitations, conditions might rea-
    sonably be changed to better accomplish the primary goal of
    probation—“to insure that the offender will lead a law-abiding
    life.” See § 29-2262(1). In some cases, a probationer might
    demonstrate that because of changed circumstances, a proba-
    tion condition is no longer appropriate. A probationer might,
    for example, demonstrate that, in light of new circumstances,
    a condition that was once “reasonably related to the rehabilita-
    tion of the offender” is no longer so. See § 29-2262(2)(r). Of
    course, the statutory ability to initiate a modification process
    is not an opportunity to collaterally attack the sentencing judg-
    ment or to reassess whether the initial conditions of probation
    were erroneous. That is the proper subject of an appeal from
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    the judgment of the initial sentence and must be taken within
    the time limit established by the Legislature.
    [5] With this understanding of the right conferred by
    § 29-2263(3) established, it becomes clearer that the denial of
    relief sought thereunder affects a substantial right. Substantial
    rights under § 25-1902 include those legal rights that a party
    is entitled to enforce or defend. Cattle Nat. Bank & Trust Co.
    v. Watson, 
    293 Neb. 943
    , 
    880 N.W.2d 906
    (2016). Appellate
    courts regularly allow parties to enforce their right to not be
    subjected to probation conditions that are unauthorized by
    law at the time of sentencing. See, e.g., State v. 
    Rieger, supra
    .
    We see no reason why the right to be subjected to only those
    probation terms authorized by law is any less substantial when
    sought during the term of probation. Moreover, an order deny-
    ing modification or elimination of conditions affects the right
    with finality; there is no later point at which the issue could be
    effectively reviewed on appeal.
    While the reasons set forth above suggest that the district
    court’s order is an order affecting a substantial right made on
    summary application in an action after judgment is rendered,
    the State contends that a different conclusion follows from the
    Nebraska Court of Appeals decision in State v. Volcek, 15 Neb.
    App. 416, 
    729 N.W.2d 90
    (2007). We disagree.
    In Volcek, a defendant was sentenced to probation with one
    of the conditions requiring the defendant to serve a term of 45
    days’ imprisonment “‘unless waived by the Court.’” 15 Neb.
    App. at 
    418, 729 N.W.2d at 92
    . The probation order required
    the term of imprisonment to begin on a specified date and set
    a hearing on that same date for the court to determine whether
    the jail term should be waived. The defendant did not appeal
    the original sentencing and probation order, but attempted to
    appeal from the trial court’s later decision not to waive the jail
    sentence. The Court of Appeals reasoned that the defendant did
    not have any substantive right to have the jail term waived, but
    that the decision was merely within the discretion of the trial
    court and was thus not appealable.
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    The State contends that like the request to waive the jail
    term in Volcek, Paulsen did not have any substantive right to
    have conditions of probation modified or eliminated. Unlike
    this case, however, the defendant in Volcek was not requesting
    that a term of probation be modified or eliminated. Instead, the
    trial court was simply presented with the question of whether,
    under the permissive language of the original probation order,
    the jail term should be waived.
    We recognize that Volcek does contain a reference to the
    language of § 29-2263(3) following its conclusion that the
    decision to waive the jail term was entirely within the discre-
    tion of the trial court. This reference is somewhat cryptic,
    given that there did not appear to be a motion to modify or
    eliminate probation conditions in that case. In any event, to the
    extent Volcek suggests that § 29-2263(3) provides no standards
    by which motions brought thereunder are to be evaluated and
    leaves them solely to the unfettered and unreviewable discre-
    tion of the trial court, we disapprove for the reasons we have
    set forth above.
    For these reasons, we conclude that the order denying
    Paulsen’s motion was a final, appealable order.
    Merits.
    Before turning to the merits of Paulsen’s appeal, we pause
    to address the standard of review. We do not appear to have
    previously addressed the standard of review governing an order
    denying a motion brought under § 29-2263(3).
    [6] When probation conditions are challenged on direct
    appeal, the standard of review depends on the challenge
    asserted. In State v. Rieger, 
    286 Neb. 788
    , 
    839 N.W.2d 282
    (2013), we reviewed a claim that a condition of probation
    that infringed on a fundamental constitutional right was not
    sufficiently tailored to an offender’s rehabilitative process for
    an abuse of discretion. In contrast, the question of whether a
    condition of probation is authorized by statute is a question
    of law subject to de novo review. See, State v. Dinslage, 
    280 Neb. 659
    , 
    789 N.W.2d 29
    (2010); State v. Grimm, 240 Neb.
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    863, 
    484 N.W.2d 830
    (1992). We hold that these same claim-
    specific standards of review apply to an appeal of an order
    refusing to modify or eliminate a probation condition. With
    these standards established, we proceed to consider the merits
    of Paulsen’s argument.
    Paulsen offers a primary and an alternative argument that the
    district court erred by refusing to remove the firearms condi-
    tion. We are not persuaded by either.
    Paulsen’s primary argument is that because the firearms
    restriction affects his fundamental right to bear arms under the
    U.S. and Nebraska Constitutions, any such restriction must be
    subjected to heightened scrutiny, and that the restriction in this
    case cannot withstand such review. In support of this argument,
    Paulsen invokes Rieger, where we held that because a proba-
    tion condition affected a fundamental constitutional right, the
    condition must be “narrowly tailored and reasonably related
    to the rehabilitative 
    process.” 286 Neb. at 796
    , 839 N.W.2d
    at 288.
    As Paulsen must acknowledge, however, he did not argue
    in the district court that the firearms restriction was subject to
    heightened scrutiny for constitutional reasons. Nor did he argue
    that because he pled to an offense that was not a felony, the
    firearms restriction should have included the “written permis-
    sion by the court” language set forth in § 29-2262(2)(i). We
    have held that a court cannot err with respect to a matter not
    submitted to it for disposition and that an issue not presented
    to or passed on by the trial court is not appropriate for consid-
    eration on appeal. See Sherman T. v. Karyn N., 
    286 Neb. 468
    ,
    
    837 N.W.2d 746
    (2013). Because Paulsen did not present these
    arguments to the district court, they are not properly before us
    on appeal.
    This leaves Paulsen’s alternative argument. Here, Paulsen
    contends that even if the heightened scrutiny we applied in
    Rieger does not apply, the firearms restriction is still improper
    given the crime for which probation was imposed and Paulsen’s
    lack of a history of violence.
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    Paulsen articulated the substance of this argument in the
    district court. In his motion, he alleged that he did not have
    a propensity for or history of violence, that his criminal con-
    victions for driving under the influence did not involve fire-
    arms, that there was no connection between his rehabilitation
    and his possession of firearms, and that there was no risk to
    public safety in removing the firearms restriction. But while
    Paulsen made all of these allegations in support of his motion
    to modify, none of them arise out of circumstances that devel-
    oped during the term of probation. Instead, all of these argu-
    ments for why the firearms restriction was unreasonable could
    have been made in a challenge to the firearms restriction on
    direct appeal.
    The district court relied on the absence of a material change
    in circumstances as a reason for refusing to modify the fire-
    arms restriction. We do not believe the district court erred
    by doing so. As we noted recently in State v. Dill, 
    300 Neb. 344
    , 352, 
    913 N.W.2d 470
    , 475 (2018), although § 29-2263(3)
    allows for the modification of probation conditions during the
    term of probation, objections to probation conditions “should
    be brought to the sentencing court’s attention for possible elim-
    ination or modification at the outset.” Our conclusion in Dill is
    consistent with the “fundamental principle” that “[t]he need for
    finality in the criminal process requires that a defendant bring
    all claims for relief at the first opportunity.” State v. Parnell,
    
    294 Neb. 551
    , 578, 
    883 N.W.2d 652
    , 672 (2016).
    Our conclusion in Dill is also consistent with the under-
    standing of § 29-2263(3) set forth in this opinion. As we have
    explained, we understand § 29-2263(3) to allow trial courts
    to adjust probation terms during the course of probation as
    new circumstances warrant. We do not, however, understand
    § 29-2263(3) to allow probationers to challenge terms of pro-
    bation based on arguments that could have been raised in a
    direct appeal of their sentence. If § 29-2263(3) was construed
    to allow such challenges, a party that failed to challenge a pro-
    bation condition on direct appeal could file a motion to modify
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    and, if unsuccessful, appeal the denial of the motion to modify.
    We will not interpret § 29-2263(3) to effectively eliminate the
    deadline to appeal a criminal sentence set forth in Neb. Rev.
    Stat. § 25-1912 (Cum. Supp. 2018) in the context of challenges
    to probation conditions.
    While nearly all of the allegations Paulsen made in his
    motion to modify were known to him at the time of sentencing,
    we acknowledge that Paulsen’s motion to modify also alleged
    that he had not been sanctioned during the term of his proba-
    tion. We also acknowledge that Paulsen’s apparent compliance
    with his terms of probation for approximately 6 months is not
    a basis upon which Paulsen could have sought removal of the
    firearms restriction on direct appeal. Even so, our conclusion
    that the district court did not err in denying Paulsen’s motion
    to modify remains unchanged. Compliance with the terms of
    probation is the expectation for all probationers. The mere fact
    that a probationer has complied with the terms of probation for
    some period of time is not a sufficient change in circumstances
    so as to entitle a probationer to a modification of the condi-
    tions of probation.
    CONCLUSION
    Because we find that the district court did not err in deny-
    ing Paulsen’s motion to modify the terms of his probation,
    we affirm.
    A ffirmed.