State v. Payne, 298 Neb. 373

In 2005 Payne pled no contest to first-degree sexual assault of a child and received 40–50 years; he did not file a direct appeal because trial counsel remained of record.
In 2012 Payne filed a postconviction motion alleging five grounds of ineffective assistance of trial counsel that caused him to accept the plea rather than go to trial.
The district court denied the motion without an evidentiary hearing; Payne appealed.
This court in Payne I (State v. Payne) reversed and remanded for an evidentiary hearing only on whether Payne’s no-contest plea was the product of ineffective assistance of counsel.
On remand the district court construed the mandate to require a hearing solely on whether trial counsel failed to file a direct appeal and ordered a hearing limited to that issue. Payne appealed that order.
The Nebraska Supreme Court held the district court exceeded the scope of the mandate, vacated the order, and remanded directing an evidentiary hearing on the ineffective-assistance-of-counsel claims that allegedly produced the no-contest plea.

Issue	Payne's Argument	State's Argument	Held
Proper interpretation of appellate mandate/remand	Mandate required an evidentiary hearing on whether his no-contest plea resulted from trial counsel’s ineffective assistance (the five alleged failures).	The State agreed remand entitled Payne to a hearing on the pleaded ineffective-assistance claims.	Court held the mandate required a hearing on whether the plea was the product of counsel’s ineffective assistance; the district court misread the mandate.
Scope of evidentiary hearing on remand	Hearing must address the five allegations explaining why Payne accepted the plea instead of going to trial.	District court limited the hearing to a single, unpleaded issue: failure to file a direct appeal.	Court held the district court exceeded the remand scope by limiting the hearing and its order was void; vacated and remanded for the proper hearing.

State v. Payne, 289 Neb. 467 (2014) (prior opinion reversing denial of postconviction relief and remanding for hearing on whether plea resulted from ineffective assistance)
State v. Bazer, 276 Neb. 7 (2008) (guilty or no contest plea waives all defenses except claims the plea was involuntary or was the product of ineffective assistance)
Klingelhoefer v. Monif, 286 Neb. 675 (2013) (lower courts must follow appellate mandates; cannot modify or add to them)
Pursley v. Pursley, 261 Neb. 478 (1998) (mandate and opinion together govern the scope of remand and required district-court action)
State v. Shelly, 279 Neb. 728 (2010) (orders exceeding the scope of an appellate remand are without jurisdiction and void)