State v. Jackson

870 N.W.2d 133

State of Nebraska, appellee

v.Kena G. Jackson, appellant.

No. S–14–677.

Supreme Court of Nebraska.

Filed October 2, 2015.

Jerry L. Soucie, Lincoln, for appellant.

Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Judgments: Jurisdiction.A jurisdictional issue that does not involve a factual dispute presents a question of law.

2. Judgments: Appeal and Error.An appellate court independently reviews questions of law decided by a lower court.

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. Jurisdiction: Final Orders: Appeal and Error.For an appellate court to acquire jurisdiction over an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken.

5. Criminal Law: Final Orders: Sentences: Words and Phrases.The final judgment in a criminal case means sentence, and the sentence is the judgment.

6. Final Orders: Appeal and Error.The general rule prohibiting immediate appeals from interlocutory orders seeks to avoid piecemeal appeals arising out of one set of operative facts, chaos in trial procedure, and a succession of appeals in the same case to secure advisory opinion to govern further actions of the trial court.

7. Judgments.As a general matter, an order on summary application in an action after judgment under Neb.Rev.Stat. § 25–1902 (Reissue 2008) is an order ruling on a postjudgment motion in an action.

8. Words and Phrases.A substantial right is an essential legal right, not merely a technical right.

9. 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.

10. Final Orders.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. 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.

12. Habeas Corpus.The certified copy of the judgment of a court of record constitutes the authority of the warden to retain the prisoner.

13. Arrests: Warrants: Appeal and Error.An order for an arrest and commitment warrant is not a final, appealable order.

McCormack, J.

NATURE OF CASE

A parolee appeals from the district court's arrest and commitment warrant that was issued ex parte after the Nebraska Department of Correctional Services (the Department) alerted the court that it had erroneously discharged him before his mandatory release date. The parolee attacks the subject matter jurisdiction of the district court to issue the order for an arrest and commitment warrant. Alternatively, the parolee asserts that the lack of notice and a hearing violated procedural due process and his right to counsel. We dismiss the appeal for lack of a final, appealable order.

BACKGROUND

Kena G. Jackson was convicted of possession of a controlled substance with enhancement pursuant to the habitual

criminal statute.¹ On June 9, 2004, Jackson was sentenced by the district court to 10 to 15 years' imprisonment, with 196 days credit for time served.

The Department erroneously discharged Jackson from custody on November 11, 2013. With the 196 days' credit, Jackson had served only 3,650 days at the time of his discharge. This would correspond to his 10–year mandatory minimum sentence under the habitual criminal statutes. However, Jackson's discharge date should have been calculated upon serving 12½ years of his sentence.² Jackson's parole eligibility date was calculated upon serving 10 years of his sentence.³

On June 26, 2014, the State filed a motion in the district court, under the same docket number as the original conviction and sentence, asking that the court issue a warrant for Jackson's arrest and commitment, so that he could serve the remainder of the June 9, 2004, sentence. The State filed an accompanying affidavit in which the director of the Department averred that by deducting good time credit from Jackson's mandatory minimum sentence, the Department had erroneously released Jackson before his mandatory discharge date. Thus, at the time Jackson was erroneously released, he still had 2 years 6 months to serve on his sentence before mandatory discharge. Jackson was not notified of the State's motion, and no hearing was held on the motion.

The court issued an order on June 26, 2014, finding that Jackson had not served the entirety of his sentence and that he had been prematurely and erroneously released. The court ordered that an arrest and commitment warrant be issued. The court concurrently issued the arrest and commitment warrant. Upon his return to custody, the Department released Jackson on parole. The Department has indicated that other similarly

released inmates have not always been brought back into custody through an arrest and commitment warrant.

Jackson appeals the court's order for an arrest and commitment warrant.

ASSIGNMENTS OF ERROR

Jackson asserts (1) that the district court lacked subject matter jurisdiction to order his arrest and commitment and (2) that issuing the arrest and commitment warrant without notice or a hearing was “in violation of the Due Process Clause of the Fourteenth Amendment and Sixth Amendment to the United States Constitution.”

STANDARD OF REVIEW

A jurisdictional issue that does not involve a factual dispute presents a question of law.⁴ We independently review questions of law decided by a lower court.⁵

ANALYSIS

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.⁶ For an appellate court to acquire jurisdiction over an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken.⁷

The “final judgment in a criminal case means sentence and the sentence is the judgment.”⁸ Accordingly, the order for an arrest and commitment warrant in this case occurred after the final judgment. It could only be directly appealed if it constituted a final order.

There are three types of final orders that may be reviewed on appeal under the provisions of Neb.Rev.Stat. § 25–1902 (Reissue 2008) : (1) an order which affects a substantial right in an action and which 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 judgment is rendered. In addition, the collateral order doctrine provides that an interlocutory order is immediately appealable if it (1) finally decides an important matter, (2) that is separate and distinct from the merits, and (3) is effectively unreviewable at the end of the litigation.⁹

These are the limited exceptions to the general rule that interlocutory orders are not immediately appealable. The general rule prohibiting immediate appeals from interlocutory orders seeks to avoid piecemeal appeals arising out of one set of operative facts, chaos in trial procedure, and a succession of appeals in the same case to secure advisory opinion to govern further actions of the trial court.¹⁰

Jackson asserts that the order for an arrest and commitment warrant was final, because it affected a substantial right and was made on summary application in an action after judgment is rendered.

We agree with Jackson that the order for an arrest and commitment warrant was an order on summary application in an action after judgment. As a general matter, an order on “ ‘summary application in an action after judgment’ ” under § 25–1902 is an order ruling on a postjudgment motion in an action.¹¹ In State v. Perry,¹² we held that the trial court's amended commitment order, changing the defendant's sentence

from 40 to 42 years' imprisonment to 200 months' to 42 years' imprisonment and issued upon the court's own motion 2 years after the original sentence, was made on summary application in an action after judgment was rendered. And in Heathman v. Kenney ,¹³ we held that an order denying the defendant's request for reimbursement of photocopying expenses, made after a final judgment of dismissal of the underlying writ of habeas corpus and while the defendant's appeal from the dismissal was pending, was made upon a summary application in an action after judgment.

Similarly here, the State's motion for an arrest and commitment warrant related to a prior final judgment, the June 9, 2004, sentencing order. The court's order granting the motion was a postjudgment ruling in the underlying criminal action. It was an order in an action after judgment is rendered.

But we disagree with Jackson's contention that the order for an arrest and commitment warrant affected a substantial right. 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.¹⁴ It is not enough that the right itself be substantial; the effect of the order on that right must also be substantial.¹⁵

Regarding the importance of the right affected, we often state that a substantial right is an essential legal right, not merely a technical right.¹⁶ It is a right of “substance.”¹⁷ 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 appellant prior to the order from which he or she is appealing.”¹⁸

Thus, in State v. Schlund,¹⁹ we held that an order disqualifying the public...