State v. Payne, 298 Neb. 373

In 2005, Christopher M. Payne pled no contest to first-degree sexual assault of a child and received 40–50 years' imprisonment; he did not file a direct appeal while trial counsel remained appointed.
Payne filed a postconviction motion alleging trial counsel were ineffective in five respects and that, but for counsel's ineffectiveness, he would have insisted on trial rather than pleading no contest.
The district court denied the motion without an evidentiary hearing; Payne appealed.
On first appeal, the Nebraska Supreme Court held Payne’s ineffective-assistance claims were not procedurally barred and limited surviving claims to those attacking whether the no-contest plea resulted from ineffective assistance; the case was remanded for an evidentiary hearing on that issue.
On remand the district court construed the mandate to require a hearing only on whether counsel failed to file a direct appeal (a claim Payne had not alleged), and limited the hearing accordingly.
The Supreme Court concluded the district court exceeded the scope of the mandate, rendering its order void, vacated that order, and remanded with directions to hold an evidentiary hearing on Payne’s claims that his no-contest plea resulted from trial counsel’s ineffective assistance.

Issue	Payne's Argument	State's Argument	Held
Whether the district court correctly limited the remand hearing to the single issue of counsel's failure to file a direct appeal	The remand required an evidentiary hearing on whether Payne's no-contest plea was the product of ineffective assistance (all five alleged failings)	The State agreed the remand entitled Payne to a hearing on the ineffective-assistance claims surviving waiver, not on an unpled failure-to-appeal theory	The court held the district court misread the mandate; the hearing must cover whether Payne's plea resulted from counsel's ineffective assistance (the five alleged grounds), not only failure to file a direct appeal; the order limiting the scope was void
Whether the district court's order limiting the hearing was a final, appealable order and within the court's jurisdiction	Payne contended the limitation was a final appealable order and exceeded the mandate	The State did not defend limiting the scope to the unpled issue	The court concluded the order was final as to claims denied without hearing, exceeded the remand, was entered without jurisdiction, and therefore void

State v. Payne, 289 Neb. 467, 855 N.W.2d 783 (2014) (prior opinion limiting surviving claims after a no-contest plea to ineffective-assistance challenge to the voluntariness of the plea)
State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008) (plea voluntariness and ineffective-assistance considerations in plea-based convictions)
Klingelhoefer v. Monif, 286 Neb. 675, 839 N.W.2d 247 (2013) (mandate and lower-court duty to follow appellate opinion)
State v. Shelly, 279 Neb. 728, 782 N.W.2d 12 (2010) (orders entered beyond scope of remand are void)
Pursley v. Pursley, 261 Neb. 478, 623 N.W.2d 651 (2001) (examine opinion together with mandate to determine remand scope)