*1 Larry Nebraska, appellee, LeGrand, L. apellant. S-93-1086, Filed December 1995. Nos. S-93-1087.
(1) *2 Jr., for appellant. Robert Wm. Chapin, General, Mark D. Starr for and Stenberg, Attorney Don appellee.
White, C.J., Caporale, Lanphier, Wright, Fahrnbruch, JJ. Gerrard, Fahrnbruch, J. cases, two L. LeGrand Larry
In these “separate proceeding” Court to invalidate two of LeGrand’s Dodge County asked the while driving earlier convictions for under influence (DUI). did so to avoid those convictions alcohol LeGrand being in a to enhance the sentence third DUI charge pending used him in County. Lancaster against In each of LeGrand claimed that trial his petitions, in each two convictions did not records of the challenged entered affirmatively show that he his guilty plea freely, voluntarily, intelligently. knowingly, Court denied the of LeGrand’s Dodge County prayers LeGrand district court for petitions. appealed, Dodge affirmed denial. the Nebraska County Upon appeal, order, district claiming affirmed the court’s Appeals U.S., _U.S._, in Custis v. 114 S. holdings under U.S., _ (1994), L. Ct. 128 Ed. 2d 517 and Nichols v. _, (1994), 114 128 2d 745 U.S. S. Ct. L. Ed. collaterally attack state convictions separate proceeding prior
[3] State, LeGrand v. is not mandated. constitutionally App. in Court of erred Appeals determining Nebraska convictions, attack previous separate proceedings court, this were not available to though repeatedly upheld LeGrand. merits, affirm the
Based on the we district judgment court because LeGrand County freely, voluntarily, for Dodge in each of his two intelligently convictions. The trial court was not as clearly wrong holding it did in each case. ERROR
ASSIGNMENTS OF (1) as error that the Nebraska Court of assigns erred in the U.S. Court’s decisions applying U.S., U.S., in Custis v. and Nichols v. to overrule supra, Wiltshire, court’s this State v. 241 Neb. holdings Oliver, N.W.2d 324 and State v. (1989); (2) the Nebraska Court of Appeals’ Irish,
decision conflicts with this court’s
holdings
*3
Neb.
STANDARD OF REVIEW law, When a of court reaches reviewing question appellate a conclusion of the lower court’s independent State v. ruling. White, 508 N.W.2d fact, the trial as the finder
When court sits of its will findings not be disturbed on unless See appeal clearly State v. wrong. Wilson,
FACTS earlier use two DUI sought Dodge County convictions LeGrand to increase a DUI against pending charge to third-offense DUI in Lancaster County.
In LeGrand response, sought separate proceedings Dodge Court to invalidate the two earlier DUI County convictions. LeGrand that the alleged prior convictions were invalid because
the trial affirmatively records failed to establish that his had been pleas freely, voluntarily, and knowingly, intelligently entered as by Tweedy, required supra. conviction,
In the first the record previous reflects that on 11, 1987, LeGrand, with counsel August was present, arraigned Court on a of DUI. Dodge County The record further charge reflects that LeGrand was advised of the penalties for the offense; self-incrimination; informed of his privilege against witnesses, of his to confront apprised rights trial by jury, to counsel, and due with notice process proper and a fair and impartial informed that if he hearing; he pled guilty forfeited his of innocence and presumption relieved the State of its burden to a prove beyond reasonable doubt each element of
the crime and waived all charged defenses. LeGrand guilty. 18, 1987,
On September with appeared counsel before a different in the judge Dodge County Court to be his rearraigned At the change plea. rearraignment, record is silent as to whether LeGrand waived his privilege self-incrimination, witnesses, against his right confront his a to trial right jury, right to due with process notice and a fair and proper impartial hearing. record is also silent as to whether the court advised LeGrand that if he he pled guilty forfeited his presumption innocence and relieved the State of its burden to a prove beyond reasonable doubt each element of the crime charged.
However, court, checklist, the county did state that
defendant advised the Court that he/she understood the nature of the charge(s), possible penalties that be might law, and all imposed, available to him rights and that this to the was plea charge(s) entered fully [sic], voluntary intelligently, with full understanding consequences.
LeGrand entered a plea guilty which was accepted by court, and LeGrand was sentenced on October 1987. *4 LeGrand did not his appeal conviction.
LeGrand’s second earlier DUI conviction stems from an 12, 1990, October arrest in In Dodge County. to the regard arrest, October 12 LeGrand appeared with counsel at an arraignment County Court on Dodge November 6. The record reflects that LeGrand was advised of the penalties for offense; self-incrimination; informed of his privilege against witnesses, apprised rights confront ato trial by jury, and to due with process notice and a fair proper impartial informed that if hearing; he he pled guilty forfeited his presumption of innocence and relieved the State of its burden to prove beyond reasonable doubt each element of the crime charged waived all defenses. LeGrand guilty. 19, 1991,
On February LeGrand appeared before the same judge Dodge County Court to be and to rearraigned change The plea. record reflects that LeGrand was advised of all his as he rights just had been at the previous arraignment. record further reflects that LeGrand waived all of those rights. LeGrand freely, voluntarily, intelligently pled guilty. was sentenced on March 26. LeGrand did not appeal this conviction.
The trial court denied LeGrand’s petitions invalidate the two DUI convictions. LeGrand appealed the district court for County, which Dodge affirmed the order of the trial court. LeGrand then to the appealed Nebraska Court of Appeals.
The Nebraska Court of
affirmed
Appeals
the district court
decision without
the merits of
reaching
LeGrand’s constitutional
claim. The Nebraska Court of Appeals noted that this court
allowed separate proceedings to attack DUI enhancement
based on U.S.
proceedings
Court
Supreme
holdings Burgett
Texas,
389 U.S.
88 S. Ct.
6
attack the
of a
in an
validity
conviction
enhancement
any
on
with one
proceeding
grounds,
exception: Challenges
convictions offered for enhancement
prior plea-based
purposes
are allowed when based on the
failure to disclose
transcript’s
the defendant had or waived
at
whether
counsel
the time the
entered,
were
when the defendant
sentenced
was
pleas
for
of time as a
imprisonment
any period
result of the pleas.
State,
300,
(1995).
LeGrand v.
3 Neb.
ANALYSIS Subject Matter Jurisdiction Initially, we address the State’s that the argument Dodge Court lacked County subject matter to hear jurisdiction LeGrand’s for petition separate proceedings. (Cum. State relies on Neb. Rev. Stat. 24-517 Supp. §
1994) to argue Dodge County subject lacks matter jurisdiction modify its own judgments. Const, I, 13,
The State’s
runs afoul of Neb.
argument
art.
which
“All
provides:
courts shall be
open,
every
for
person,
lands,
any
done him in
injury
or
goods, person
reputation,
law,
shall have a
due
remedy by
course of
and justice
administered without denial or
delay.”
foregoing
constitutional
is
provision
self-executing
controlling,
all courts
paramount
mandatory upon
of this state. Sullivan
Storz,
177,
(1952).
v.
156 Neb.
[7] Rehbein, 536, to due void. State 235 is v. Neb. process Dorn, 93, (1990); State v. Von 234 Neb. 449 Ewert, (1989); 530 v. N.W.2d State 194 Neb. 230 N.W.2d Maher, Dorrance, (1975); 609 In re v. 144 North Application of Betts, (1944); Neb. 13 N.W.2d In re 36 Neb. 54 653 N.W.
A void be set time judgment may any aside at and in any Willman, v. proceeding. VonSeggern Marshall, (1993); N.W.2d 261 Marshall Ewert, Grove, 1 (1992); Ehlers *6 704, Wileman, 24 (1946); Neb. Hayes County 866 v. 669, (1908). 82 Neb. 478 118 N.W.
Therefore, because LeGrand void challenged allegedly the County Court did have judgment, subject matter Dodge Const, I, 13, as jurisdiction, art. contemplated by hear his petitions for separate proceedings. Venue
LeGrand filed separate his in proceeding petitions Dodge Court, County the where contested prior convictions were rendered. The State that LeGrand should have filed argues in petitions County Lancaster where he was with his charged third DUI conviction. we
Although have not where previously addressed separate filed, should proceedings be this court has held that a to vacate and set aside a for the proceeding reason that judgment it is void must in be the court in the which brought judgment 724, Rasmussen, was rendered. Rasmussen 131 Neb. 269 (1936). N.W. 818 must challenge previous judgment be in the brought court which rendered the otherwise judgment, the records of one would be court under the control of other courts of coordinate A is a jurisdiction. matter of judgment aside, record and can be set or modified only changed, by the the by court whose record is or the by made direction authority a court of in to review higher jurisdiction the so, If this chaos result. were would State ex rel. judgment. Westover, 593, Long (1922). 107 Neb. 186 998 N.W. Accordingly, correctly petitions LeGrand filed for separate proceedings Dodge County Court. and Cusns v. U.S. Proceedings Separate that the Nebraska Court erred in argues of Appeals U.S. Court’s decisions Custis v.
interpreting Supreme U.S., _U.S. _, 114 1732, S. 2d 517 Ct. 128 L. Ed. U.S.,_U.S._, 1921, (1994), and Nichols v. 114 S. Ct. L. 2d 745 Ed. as to invalidate authority “separate in Nebraska. proceedings”
A defendant collaterally cannot attack a conviction in prior Oliver, 864, an enhancement State v. proceeding. 230 Neb. Therefore, N.W.2d 293 to the of a objections validity conviction offered for of sentence prior purpose enhancement, the issue of whether the defendant had beyond counsel or waived the constitute a collateral right attack on the and must be either direct judgment, raised a from the conviction or in appeal prior separate proceedings commenced for the expressly purpose aside setting prior See, also, Wiltshire, conviction. Id.
N.W.2d 324
The Nebraska Court of
was correct when it stated
that we followed U.S.
precedent
recognizing
attack
convictions
Wiltshire,
See State v.
separate proceeding.
supra (following
Texas,
Burgett 389 U.S.
88 S. Ct.
19 L. Ed. 2d
Illinois,
(1967), and
Baldasar v.
446 U.S.
100 S. Ct.
(1980)).
art. VI. See Marbury (1 Cranch) v. 5 U.S. 137, 2 (1803). L. Ed. 60
However, states are free to afford their citizens due greater under process protection their state constitutions than is granted the federal constitution. See v. 463 U.S. Michigan Long, 103 S. Ct. L. Ed. 2d 1201 the Accordingly, Nebraska Court of erred in that this court presuming would to automatically apply Nebraska a U.S. that restricts where holding federal defendants to subject federal recidivist may statutes earlier convictions used for federal challenge sentence enhancement.
Moreover, U.S., U.S., Custis v. and Nichols v. supra, supra, not do are no suggest proceedings Nebraska’s separate U.S., v. longer valid. In Custis the Court addressed whether a defendant in a may federal sentencing proceeding collaterally the attack state convictions that are used to validity previous enhance the sentence the Armed defendant’s under Career Act, that, 924(e) Criminal 18 U.S.C. The Court held § statute, based the of the did upon not intend language Congress 924(e). collateral attacks on convictions under permit prior U.S., In Nichols v. the Court overruled in its Baldasar holding Illinois, held and that an uncounseled supra, misdemeanor conviction, where no term was is valid when prison imposed, used to enhance at a conviction. punishment subsequent
Thus, there exists no federal mandate to overrule separate state attack proceedings collaterally state prior convictions on other than grounds counsel or waiver of counsel. A right . constitutionally invalid conviction used for sentence enhancement second works a constitutional violation on the defendant invalid conviction serve as a allowing for a predicate recidivist conviction. Without separate case, a proceedings, defendant a state is who custody, has no other forum a infirm challenge constitutionally judgment to be used for sentence sought enhancement. With this mind, Oliver, we reaffirm our in State holdings and supra, Wiltshire, are separate a valid means to attack allegedly constitutionally invalid convictions used for sentence enhancement. Validity of LeGrand’s Prior Convictions the alleges that records of his two prior convictions for DUI do not show that affirmatively were guilty pleas entered freely, voluntarily, knowingly, intelligently.
In order to
that a
or
support
finding
plea
nolo
contendere has
voluntarily,
been entered freely,
(1)
the court must
inform
intelligently,
the defendant concerning
(a) the nature
(b)
to assistance of
charge,
right
(c) the
to confront witnesses
right
against
defendant, (d)
trial,
(e)
to a jury
privilege
self-incrimination;
examine
(2)
against
defendant to
*8
he or
she understands
foregoing.
determine
that
(1) there
a factual
establish that
is
the record must
Additionally,
(2) the defendant knew the
range
for the
basis
plea
See
which he or she is charged.
for the crime with
penalties
Irish,
(1986). See State
223 Neb.
That the record is silent
certain
regarding
rights
is irrelevant because those
were
rearraignment
rights
explained
to LeGrand in his
Once a defendant is
prior arraignment.
there is no
informed of his constitutional rights,
requirement
that the
defendant on each
court
court advise the
subsequent
Green,
of that same
See State v.
238 Neb.
appearance
right.
(1991). LeGrand
all
understood
the rights
mind, he
that he stood to lose
With that in
by pleading guilty.
court,
chose to
from not
change
plea
guilty.
LeGrand’s
made certain that LeGrand
upon
change
plea,
the nature of the
understood
charge,
possible penalties
be
and all
availablé to him law.
might
imposed,
rights
conviction is far removed from the facts in
LeGrand’s 1987
Nowicki,
which we held that when a record is silent as to a defendant’s
for
the court
such
may
presume
rights
opportunity
Nowicki,
were
Id. In State v.
the record was silent as
respected.
the defendant’s
to counsel at the
and trial.
arraignment
*9
inform
defendant of his
court
the
did the
sentencing
Not until
that the
cannot
one
Obviously,
presume
to counsel.
right
of those
advised
being
understands rights prior
defendant
bar,
that LeGrand
case at
the record reflects
In the
rights.
in 1987.
prior
guilty
understood his rights
pleading
conviction,
at
the
reflects that
record
prior
As to the 1991
he
not
at which
guilty,
LeGrand’s arraignment,
Irish,
in
all of
set out
State v.
supra.
of
his rights
was advised
court again
guilty,
When LeGrand changed
plea
the State
Irish
all of
v.
requirements.
covered
he did not
the checklist which
sign
that
argument
LeGrand’s
is
plea
that he entered a constitutional guilty
verifies
checklist,
or
A
authenticated
the signature
immaterial.
which indicates that all constitutional
judge,
initials of
met,
and
part
have been
becomes
of the record
requirements
affirmatively
intelligent
knowing guilty
establish
may
Ziemba,
N.W.2d 208
plea. State
have
under
separate
Since we
stated
already
proceedings
Oliver,
(1989), and
CONCLUSION The Nebraska Court of erred in our Appeals reversing Oliver, Wiltshire, in State v. holdings supra. Court does authority The Nebraska of not have Second, Court. reverse the of the Nebraska holdings reliance U.S. Supreme the Nebraska Court of on Appeals’ U.S., _ was because Custis holdings misplaced _, Ed. 114 S. Ct. 128 L. 2d does U.S. this state’s laws of state regarding impact defendants to attack state convictions prior being for enhancement used purposes. affirm the denial LeGrand’s to invalidate the petitions
We of convictions, the record reflects that LeGrand did prior because freely, voluntarily, and intelligently plead prior each of his two convictions. Affirmed. J., not participating.
Connolly, J., concurring. Wright,
I concur the result of the which majority’s opinion, denied petition LeGrand’s to invalidate convictions. I prior would not adhere to a decision that would a defendant to permit stall sentence enhancement a collateral attack proceedings convictions used for sentence enhancement on the basis that such were not freely, convictions voluntarily, knowingly, made. In intelligently my opinion, enhancement should continue proceedings independent any separate proceeding defendant brings. enhancement should not be placed limbo for years, pending *10 resolution of such a separate proceeding. U.S., _U.S._,
In Custis v. 114 S. Ct. 128 L. 2d Ed. the Court granted certiorari to determine whether a defendant in a federal sentencing proceeding may attack the validity of state previous convictions that are used to enhance his sentence under the Armed Career Act, Criminal 18 U.S.C. 924(e) The Court held the defendant had no such collaterally attack convictions, except convictions obtained in violation of the right Custis, to counsel. On the basis of I would not permit a defendant to collaterally attack prior convictions order to stall enhancement proceeding.