State v. Dye, 291 Neb. 989

Brandon Dye was convicted at trial of six offenses including felony robbery and first-degree false imprisonment; several misdemeanor convictions were ordered concurrent.
After conviction but before sentencing, Dye and the State entered a sentencing agreement: the State withdrew a habitual-criminal allegation and recommended a 12–13 year sentence on the robbery count; Dye signed a written waiver of "any rights to appeal this case" and of post-conviction relief.
The district court questioned Dye about the waiver and sentencing agreement; Dye affirmed he understood and voluntarily waived appeal rights; the court imposed the recommended concurrent sentences.
Dye filed a pro se notice of appeal; appellate counsel argued the appeal waiver was unenforceable and also challenged an evidentiary ruling excluding hearsay testimony about being drugged.
The State moved to dismiss the appeal based on the waiver; the Nebraska Supreme Court considered whether appeal waivers are enforceable and what review an appellate court must perform before enforcing them.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are appeal waivers contrary to public policy in Nebraska?	State: waivers permissible and do not violate public policy	Dye: appeal waivers are against public policy and unenforceable	Waivers do not violate Nebraska public policy when knowing and voluntary
What standard should appellate courts use to enforce an appeal waiver?	State: courts should enforce valid waivers	Dye: waiver here unenforceable; court should reach merits	Court adopts three-prong test: (1) appeal within waiver scope, (2) waiver knowing and voluntary, (3) enforcement not a miscarriage of justice
Does Dye’s written waiver satisfy the three-prong test?	State: waiver is clear, Dye knowingly waived, no miscarriage of justice	Dye: challenges enforceability generally; does not show coercion or ineffective counsel	Waiver is clear and unambiguous, court colloquy shows knowing and voluntary waiver, no miscarriage of justice found
What is the proper remedy if an appeal waiver is enforceable?	State: dismiss the appeal	Dye: seeks appellate review of evidentiary ruling despite waiver	Where waiver is enforceable the proper remedy is dismissal of the appeal; merits not considered

U.S. v. Andis, 333 F.3d 886 (8th Cir.) (adopts limits on appellate waivers and test for enforcement)
U.S. v. Hahn, 359 F.3d 1315 (10th Cir.) (describes three-prong analysis for waiver enforcement)
U.S. v. Walters, 732 F.3d 489 (5th Cir.) (recognizes validity of appellate waivers)
U.S. v. Rollings, 751 F.3d 1183 (10th Cir.) (dismissal of appeal where waiver enforceable)
U.S. v. Smith, 759 F.3d 702 (7th Cir.) (discusses valid appeal waiver and remedy)
State v. Anderson, 279 Neb. 631 (Neb. 2010) (Nebraska precedent recognizing that constitutional rights, including appeal, can be waived knowingly and voluntarily)
Cubbage v. State, 304 Md. 237 (Md.) (endorses enforcing voluntary appeal waivers and dismissal as remedy)
State v. Gibson, 68 N.J. 499 (N.J. 1975) (contrasting view that a defendant convicted at trial may still file an appeal despite waiver, with prosecutor’s option to rescind concessions)