State v. Rice
295 Neb. 241
Neb.2016Background
- David L. Rice, convicted of first-degree murder in 1971 and denied prior postconviction relief, filed a successive postconviction petition in 2012; the petition was dismissed as time- and procedurally-barred and the dismissal was affirmed on appeal (No. S-14-056).
- Attorney Timothy L. Ashford represented Rice, moved to be appointed as counsel, and was later appointed by the district court after this court directed the trial court to rule on the outstanding motion.
- After the appellate mandate issued, Ashford applied in district court under Neb. Rev. Stat. § 29-3004 for payment of fees and expenses for his court-appointed postconviction representation, seeking $7,428.40; the State did not contest the request.
- The district court denied the application, stating the underlying claims and appeal were frivolous and concluding that no fees should be allowed; Ashford appealed that denial (No. S-15-932).
- While the fee appeal was pending, Rice died; Ashford filed a suggestion of death and moved for substitution of parties if necessary.
- The Nebraska Supreme Court held the appeal did not abate because Ashford’s statutory right to fees under § 29-3004 is his own, and reversed the district court’s denial, remanding for a different judge to fix reasonable fees.
Issues
| Issue | Plaintiff's Argument (Ashford) | Defendant's Argument (State/District Court) | Held |
|---|---|---|---|
| Whether Rice's death abates the fee appeal or requires substitution | Ashford argued the appeal is his own statutory fee claim under § 29-3004 and survives Rice’s death; no substitution needed | Implicit concern that a party’s death could affect the appeal or require substitution | Held: Appeal did not abate; Ashford is the proper appellant and no substitution required |
| Which statute governs postconviction appointed-counsel fees | Ashford relied on fee statutes and case law; court concluded § 29-3004 (postconviction) governs, not § 29-3905 (criminal) | District court applied its view of frivolousness rather than the § 29-3004 fee mandate | Held: § 29-3004 controls and requires the court, upon application, to fix reasonable fees |
| Whether the trial court could deny all fees because the underlying postconviction claims/appeal were frivolous | Ashford argued district court must determine reasonable fees and cannot refuse to fix fees based on frivolousness after appointment | District court denied fees because it found the appeal frivolous | Held: Court abused its discretion; frivolousness is not a basis under § 29-3004 to refuse to fix reasonable fees after counsel was appointed |
| Remedy and whether remand should avoid the same judge | Ashford asked the court to award the requested amount since State did not object; Ashford also raised judge conflict | State did not oppose amount; district judge noted he had been sued by Ashford in federal court | Held: Remand to district court to calculate reasonable fees under § 29-3004; assignment to a different judge is directed to avoid appearance of bias; appellate court will not set the fee amount itself |
Key Cases Cited
- In re Conservatorship of Franke, 292 Neb. 912 (discusses abatement and substitution when a party dies)
- In re Claim of Rehm and Faesser, 226 Neb. 107 (appointed counsel may appeal fee orders; fee appeal is separate from underlying criminal case)
- State v. Ryan, 233 Neb. 151 (review of appointed-counsel fee rulings)
- State v. Ortega, 290 Neb. 172 (trial court discretion in setting attorney fee amount under related statute)
- Kercher v. Board of Regents, 290 Neb. 428 (factors for determining reasonable attorney fees)
- Schirber v. State, 254 Neb. 1002 (addressing when a fee request supported by the record and uncontested should be granted; discussed and limited here)
- State v. Lowery, 19 Neb. App. 69 (Court of Appeals discussion regarding fee awards when State does not object)