State v. Payne, 298 Neb. 373

Background

In 2005, Christopher M. Payne pleaded no contest to first-degree sexual assault of a child under a plea agreement and received 40–50 years; he did not file a direct appeal while trial counsel remained of record.
Payne filed a postconviction motion alleging five ways trial counsel were ineffective and that, but for that ineffectiveness, he would have insisted on trial instead of pleading no contest.
The district court denied postconviction relief without an evidentiary hearing; Payne appealed.
This court (in Payne I) reversed and held Payne’s ineffective-assistance claims were not procedurally barred and that only claims that the plea resulted from ineffective assistance survived waiver; it remanded for an evidentiary hearing on whether Payne’s no contest plea was the product of ineffective assistance.
On remand, the district court interpreted the mandate to require an evidentiary hearing solely on whether trial counsel failed to file a direct appeal, an issue Payne had not alleged.
The Supreme Court held the district court exceeded the scope of the mandate, rendering the order void, and remanded with directions to hold an evidentiary hearing on Payne’s plea-related ineffective-assistance claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court properly limited the remand hearing to the failure-to-file-appeal issue	Payne argued remand required an evidentiary hearing on whether his no contest plea resulted from trial counsel’s ineffective assistance (the five alleged failures)	State argued the district court’s limitation was permissible under its reading of the mandate	Court held the district court misread the mandate; it exceeded the remand scope and its order was void — remand requires hearing on plea-related ineffective-assistance claims
Whether Payne’s claims were procedurally barred or waived by the plea	Payne argued claims were not barred because trial counsel remained counsel during the direct-appeal period and only plea-related ineffective-assistance claims survived waiver	State previously contended procedural bar/waiver might preclude some claims	Court previously held in Payne I that claims were not procedurally barred and only plea-related ineffective-assistance claims survive waiver
Whether a lower court may alter an appellate mandate on remand	N/A (party positions implicit)	N/A	Court reaffirmed a district court must follow the appellate mandate and may not modify or add to it; departures are void for lack of jurisdiction
Whether the order limiting the hearing is a final, appealable order	Payne appealed the order as final on denied issues	State did not contest appealability in this decision	Court held the order limiting the hearing is a final, appealable order as to the claims denied without a hearing

Key Cases Cited

State v. Payne, 289 Neb. 467 (2014) (initial appellate opinion reversing denial of postconviction relief and remanding for hearing on plea-related ineffective-assistance)
Klingelhoefer v. Monif, 286 Neb. 675 (2013) (lower courts must follow appellate mandate and cannot modify it)
Pursley v. Pursley, 261 Neb. 478 (2001) (when mandate incorporates opinion, the opinion must be read with the mandate to determine remand scope)
State v. Bazer, 276 Neb. 7 (2008) (when plea entered, defendant may attack plea only on voluntariness and ineffective assistance grounds)
State v. Shelly, 279 Neb. 728 (2010) (orders outside the scope of remand are entered without jurisdiction and are void)