Ballheim v. Settles
318 Neb. 873
| Neb. | 2025Background
- Trever Ballheim was convicted in Nebraska for possession of a controlled substance (a Class IV felony) and for being a habitual criminal after a plea agreement in 2019.
- He was sentenced on two counts: 2 to 2 years for possession, and 10 to 11 years for the habitual criminal count, with sentences to run concurrently.
- No direct appeal was filed; over 6 months later, the court entered an order nunc pro tunc, altering the possession sentence to 10 to 11 years, eliminating the separate habitual criminal sentence.
- Ballheim petitioned for a writ of habeas corpus, claiming the nunc pro tunc order was void and the sentence for being a habitual criminal was for a nonexistent crime, having already served the lawful 2-to-2-year sentence for possession.
- The district court dismissed the habeas petition without a hearing, relying on precedent that only void judgments—not merely erroneous ones—are subject to habeas relief.
- Ballheim appealed, arguing he was unlawfully detained under a void sentence for a nonexistent offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of nunc pro tunc order changing sentence post-term | Order was void because it was not clerical | Order proper to correct void sentence | Order was void; did not merely correct a clerical error |
| Sentence for 'being a habitual criminal' as separate crime | Void because ‘habitual criminal’ is not a crime | Valid as enhancement, but sentence was void | Sentence for nonexistent crime is void |
| Whether habeas relief is available | Entitled because detained under void sentence | Not available; original court had jurisdiction | Relief available where judgment is void |
| Double jeopardy and expectation of finality | Fully served valid sentence; cannot increase | Enhanced sentence should apply automatically | Increasing sentence after service violates double jeopardy |
Key Cases Cited
- Meyer v. Frakes, 294 Neb. 668 (2016) (holding separate sentences for being a habitual criminal are void; habeas relief available when served lawful underlying sentence)
- Childs v. Frakes, 312 Neb. 925 (2022) (clarifies habeas does not lie for mere errors unless sentence is void)
- Kuwitzky v. O’Grady, 135 Neb. 466 (1938) (no separate offense of 'habitual criminal'; enhancement only)
- Gamron v. Jones, 148 Neb. 645 (1947) (same as Kuwitzky)