Johnson v. Frakes

1

Jeremy Johnson, appellant, v. Scott Frakes, Director of the Nebraska Department of Correctional Services, appellee.

No. A-22-561

Court of Appeals of Nebraska

March 28, 2023

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: DARLA S. IDEUS Judge.

PIRTLE, Chief Judge, and MOORE and WELCH, Judges.

Jeremy Johnson, pro se.

Douglas J. Peterson, Attorney General, Scott R. Straus, and Jacob Waggoner, Senior Certified Law Student, for appellee.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE Judge.

INTRODUCTION

Jeremy Johnson filed a mandamus action in the district court for Lancaster County against Scott Frakes, the director of the Nebraska Department of Correctional Services (DCS). Johnson, an inmate in the custody of DCS, is serving consolidated sentences he received in 1990, 1993, and 1997, and as he did in a prior declaratory judgment action, Johnson asserts that DCS should calculate his parole eligibility date under the good time law in effect at the time of his 1997 sentence, rather than that in effect at the time of his initial sentence. The district court found that Johnson's claim was barred by issue preclusion and also found Johnson's claim to be frivolous. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

In 1990, Johnson was sentenced to imprisonment for a total term of 5 years 8 months to 13 years; the good time law in effect at that time was Neb. Laws 1975, L.B. 567. See Neb. Rev. Stat. § 83-1,107 (Reissue 1987). In 1993, he was sentenced in a second case to a consecutive term of imprisonment of 0 to 1 year, which brought his total term of imprisonment to 5 years 8 months to 14 years. Johnson was paroled in 1995; he subsequently absconded from parole supervision, was arrested and his parole was revoked. In 1997, Johnson was sentenced in a third case to 60 to 100 years' imprisonment.

In 2018, Johnson filed a declaratory judgment action against Frakes and the warden of the DCS facility where he was serving his consolidated sentences. He alleged that the sentences he received in 1990, 1993, and 1997 were incorrectly consolidated and that his parole eligibility date should have been calculated by applying Neb. Laws 1997, L.B. 364, the good time law in effect at the time his sentence became final in the 1997 case. See Neb. Rev. Stat. § 83-1,107 (Cum. Supp. 1998). Johnson asserted his parole eligibility date should have been calculated to be in 2026, rather than 2034. He asked the district court to declare that the defendants' actions in calculating his parole eligibility date violated his constitutional rights, order DCS to apply the "correct" good time law to his sentence, and award him costs. The district court granted summary judgment in favor of the defendants, finding that DCS had appropriately consolidated Johnson's sentences and had correctly applied the good time law under L.B. 567 to Johnson's total aggregate sentence to calculate his parole eligibility date as being sometime in 2034. Johnson appealed, and this court affirmed. See Johnson v. Frakes, No. A-20-037, 2020 WL 7034415 (Neb.App. Dec. 1, 2020) (Johnson I).

In Johnson I, we found that the district court did not err in determining that Johnson's sentences were appropriately consolidated and that L.B. 567 was the applicable good time law and thus the court did not err in granting summary judgment on that basis. Johnson also asserted on appeal that L.B. 567 had been applied retroactively in violation of the Ex Post Facto Clauses of the U.S. and Nebraska Constitutions. Although Johnson had not raised the ex post facto issue before the district court, we observed that the case did not present a retroactive application of a law in violation of the Ex Post Facto Clause. In other words, we noted that that L.B. 567 had been applied to Johnson's crimes and consolidated sentences all occurring after its enactment (rather than to crimes which had occurred before its enactment). See Johnson v. Frakes, No. A-20-037, 2020 WL 7034415 (Neb.App. Dec. 1, 2020).

On October 1, 2021, Johnson filed a "PETITION FOR PREEMPTORY WRIT OF MANDAMUS." In it, he asked the district court to compel DCS to recalculate and change his parole eligibility date from 2034 to 2026. He alleged that DCS recalculated his 1997 sentence under L.B. 567 in violation of the ex post facto and separation of powers clauses of the state and federal constitutions.

A hearing was held on Johnson's petition and a motion to dismiss pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6). At the hearing, the district court took judicial notice of an exhibit containing the court's order granting summary judgment in the previous declaratory judgment action as well as this court's memorandum opinion in Johnson I. On June 22, 2022, the district court entered an order in the present case, denying Johnson's petition for writ of mandamus and dismissing the case with prejudice (although the court denied Frakes' motion to dismiss, finding that a motion under § 6-1112(b) was not the correct procedural mechanism to address mandamus). In dismissing Johnson's petition, the court determined that his mandamus action was barred by the doctrine of res judicata or issue preclusion. The court stated that "for the same reasons articulated by [it] and the appellate court in Johnson I, the correct good time law is being applied to Johnson's sentences and his [parole eligibility date] is correctly calculated." The district court stated further that, "just as the appellate court previously determined," L.B. 567 had been applied in this case to Johnson's crimes and consolidated sentences occurring after its enactment and that no ex post facto violation had occurred. Finally, the district court found Johnson's claim to be frivolous, pursuant to Neb. Rev. Stat. § 25-3401(2)(b) (Cum. Supp. 2022), noting that Johnson had merely repackaged his previously rejected claim as a request for mandamus instead of one for declaratory relief.

On July 22, 2022, Johnson filed a notice of appeal in the district court. On that same day, he also filed two documents, both entitled "APPLICATION TO PROCEED IN FORMA PAUPERIS." The first document is unsigned and contains no written date (other than that of the clerk of the district court's filing stamp). It provides, "COMES NOW Jeremy Johnson pro se and makes application to the Court to allow Petitioner to Proceed in forma pauperis. In support of the application, the Petitioner has attached his poverty affidavit." The record on appeal does not include an attachment to this document. The second document, signed by Johnson, notarized, and dated June 19, 2022, provides:

The undersigned, being first duly sworn on oath, deposes and states:

1. I am the petitioner in the above entitled action[.]

2. I want to file an appeal from the denial of my Writ of Mandamus denied by the District Court of Lancaster County Nebraska by [the district court judge].

3. That I believe I am entitled to redress of these issues.

Therefore, I request the Court to grant my application to proceed in form of [sic] pauperis from this point forward, and that this court has previously granted such motion.

The record does not include any ruling by the district court on Johnson's application to proceed in forma pauperis (IFP) on appeal. The record does include a certificate of the clerk of the district court clerk, which notes, among other things, the filing of Johnson's notice of appeal and IFP affidavit and directing his appeal to this court.

ASSIGNMENTS OF ERROR

Johnson's brief does not include a section for assignments of error. As such, it does not comply with appellate court rules.

Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2022) requires an appellant's brief to contain, under the appropriate heading, "[a] separate, concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error." The rule also provides that "[e]ach assignment of error shall be separately numbered and paragraphed," and it warns that "[c]onsideration of the case will be limited to errors assigned and discussed in the brief." Id. However, "[t]he court may, at its option, notice a plain error not assigned." Id.

Parties who wish to secure appellate review of their claims must abide by the rules of the Nebraska Supreme Court. County of Lancaster v. County of Custer, 313 Neb. 622, 985 N.W.2d 612 (2023).

Any party who fails to properly identify and present its claim does so at its own peril. Id. Depending on the particulars of each case, failure to comply with the mandates of § 2-109(D) may result in an appellate court waiving the error, proceeding on a plain error review only, or declining to conduct any review at all. County of Lancaster v. County of Custer, supra.

Johnson's brief contains headings in the argument section of his brief which purport to assign error by the district court. The Nebraska Supreme Court has rejected argument headings as insufficient to assign error. See id. Where the assignments of error consist of headings or subparts of arguments and are not within a designated assignments of error section, an appellate court may proceed as though the party failed to file a brief, providing no review at all, or, alternatively, may examine the proceedings for plain error. Id. We will review for plain error.

STANDARD OF REVIEW

Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. Id.

When a jurisdictional question does not involve a factual dispute determination of the...