State v. Carter
Citation292 Neb. 16
Date Filed2015-10-30
DocketS-14-1089, S-15-024
Cited13 times
StatusPublished
Full Opinion (html_with_citations)
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CARTER
Cite as 292 Neb. 16
State of Nebraska, appellee, v.
Victor L. Carter, appellant.
___ N.W.2d ___
Filed October 30, 2015. Nos. S-14-1089, S-15-024.
ā1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
which does not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court to reach a
conclusion independent from the lower courtās decision.
ā2. Affidavits: Appeal and Error. A district courtās denial of in forma
pauperis status under Neb. Rev. Stat. Ā§ 25-2301.02 (Reissue 2008) is
reviewed de novo on the record based on the transcript of the hearing or
written statement of the court.
ā3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
ā4. Postconviction: Appeal and Error. An appellate court will not enter-
tain a successive motion for postconviction relief unless the motion
affirmatively shows on its face that the basis relied upon for relief was
not available at the time the movant filed the prior motion.
ā5. Postconviction. Postconviction proceedings are not a tool whereby a
defendant can continue to bring successive motions for relief.
ā6. ____. The need for finality in the criminal process requires that a
defendĀant bring all claims for relief at the first opportunity.
Appeals from the District Court for Douglas County: Gary
B. R andall, Judge. Appeal in No. S-14-1089 held under sub-
mission. Judgment in No. S-15-024 affirmed.
Steve Lefler, of Lefler, Kuehl & Burns, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. CARTER
Cite as 292 Neb. 16
Victor L. Carter, pro se.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, Cassel, and Stacy, JJ.
Cassel, J.
INTRODUCTION
Two appeals arose from Victor L. Carterās fifth postconvic-
tion proceeding and have been consolidated on appeal. After
the district court summarily overruled Carterās postconviction
motion, he filed the first appeal. And after the district court
denied Carterās application to proceed in forma pauperis (IFP)
on appeal, on the basis that the underlying motion was frivo-
lous, he filed another appeal to challenge that denial. The sec-
ond appeal lacks merit, and we affirm the order denying leave
to proceed IFP. But because the statute1 nevertheless permits
Carter, upon payment of the statutory docket fee within 30
days, to proceed with the first appeal, we hold it under sub-
mission for that purpose.
BACKGROUND
Carter was convicted of first degree murder and use of a
firearm in the commission of a felony in 1986. He was sen-
tenced to life in prison for the murder and 10 yearsā impris-
onment for the firearm conviction. The circumstances that
led to Carterās convictions and sentences may be found in
State v. Carter.2 We affirmed his convictions on direct appeal
in 1987.3
Carter has made numerous unsuccessful attempts to col-
laterally attack his convictions. Before the motion which is
the subject of our first appeal, Carter filed four other motions
for postconviction reliefāin 1989, 2002, 2008, and 2012. The
Douglas County District Court denied relief in each case, and
ā1
Neb. Rev. Stat. Ā§ 25-2301.02(1) (Reissue 2008).
ā2
State v. Carter, 226 Neb. 636,413 N.W.2d 901
(1987).
ā3
Id.
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STATE v. CARTER
Cite as 292 Neb. 16
in each case, we affirmed the district courtās order on appeal.
He has also attempted to collaterally attack his convictions by
means of a motion for new trial and a petition for writ of error
coram nobis.
We summarize the timeline of the most recent proceedings
as follows:
ā¢āÆMay 28, 2014: Carter files a āMotion for Successive
Postconviction Relief.ā
ā¢āÆNovember 18, 2014: The district court overrules the motion
without an evidentiary hearing.
ā¢āÆDecember 4, 2014: Carter files a notice of appeal from the
November 18 order. The appeal is docketed in this court
as case No. S-14-1089 (first appeal). In lieu of the statu-
tory docket fee, Carter files an application to proceed IFP
on appeal.
ā¢āÆDecember 23, 2014: On its own motion, the district court
denies Carterās application to proceed IFP on appeal, after
concluding that Carterās underlying postconviction motion
is frivolous.
ā¢āÆJanuary 8, 2015: Carter files a notice of appeal from the
December 23, 2014, order. The appeal is docketed in this
court as case No. S-15-024 (second appeal). This notice
of appeal was also accompanied by an application to pro-
ceed IFP.
ASSIGNMENTS OF ERROR
In the first appeal, Carter assigns, restated, that the district
court erred in denying (1) his motion for postconviction relief
without an evidentiary hearing and (2) his motion requesting
appointment of counsel and application for IFP status.
In the second appeal, Carter assigns, restated, that the dis-
trict court erred in denying his application to proceed IFP
on appeal.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
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STATE v. CARTER
Cite as 292 Neb. 16
law, which requires the appellate court to reach a conclusion
independent from the lower courtās decision.4
[2] A district courtās denial of in forma pauperis sta-
tus under Ā§ 25-2301.02 is reviewed de novo on the record
based on the transcript of the hearing or written statement of
the court.5
ANALYSIS
Jurisdiction of Second A ppeal
[3] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.6 The State claims that we
do not have jurisdiction over this appeal because Carter has not
paid the statutory docket fee. We disagree.
We decided in Glass v. Kenney7 that we can acquire juris-
diction, without payment of the docket fee, over an appeal
from an order denying IFP status on appeal. Greg A. Glass
filed a petition for a writ of habeas corpus and an applica-
tion to proceed IFP. Without ruling on the habeas petition, the
district court denied Glassā application to proceed IFP because
it concluded that his allegations in the habeas petition were
āfrivolous.ā8 Glass appealed, filing an application to proceed
with the appeal IFP, which the district court denied. Glass
separately appealed from this second denial, filing a proper
application to proceed IFP and a poverty affidavit with his
notice of appeal. The State argued that we did not have juris-
diction to hear Glassā second appeal because Glass had not
paid any filing fees.
The interaction of several statutes led us to conclude that we
had jurisdiction. We first observed that under the controlling
ā4
State v. Crawford, 291 Neb. 362,865 N.W.2d 360
(2015).
ā5
State v. Sims, 291 Neb. 475,865 N.W.2d 800
(2015).
ā6
State v. Banks, 289 Neb. 600,856 N.W.2d 305
(2014).
ā7
Glass v. Kenney, 268 Neb. 704,687 N.W.2d 907
(2004).
ā8
Id. at 706,687 N.W.2d at 909
.
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statute,9 following a denial of an application to proceed IFP,
a party may either proceed with the action or appeal the rul-
ing denying IFP status.10 For completeness, we note that this
statute underwent minor revisions after Glass that have no
bearing on this analysis. Second, we recognized that under
this statute, there is a statutory right of interlocutory appel-
late review of a decision denying IFP eligibility.11 Third, we
observed that although another statute12 generally governing
appeals and a specific fee statute13 require payment of a docket
fee, āā[a] poverty affidavit serves as a substitute for the docket
fee otherwise required upon appeal . . . .āā14 Finally, we noted
that āā[t]his court obtain[s] jurisdiction over the appeal upon
the timely filing of a notice of appeal and a proper in forma
pauperis application and affidavit.āā15 We acquired jurisdic-
tion over Glassā second appeal because Glass filed a timely
notice of appeal from the order denying leave to appeal IFP,
accompanied by a proper application to proceed IFP and a
poverty affidavit.
The procedural posture of the instant appeal is slightly
different than that in Glass; however, the same principles
apply. As in Glass, the district court denied Carterās motion
to proceed IFP on appeal. Like Glass, Carter appealed from
the district courtās denial to this court. And as in Glass, we
obtained jurisdiction over the second appeal because Carter
filed a proper application to proceed IFP and a poverty affi-
davit with his timely notice of appeal. (We note that the State
ā9
Ā§ 25-2301.02(1).
10
See Glass v. Kenney, supra note 7.
11
See id.
12
Neb. Rev. Stat. Ā§ 25-1912 (Reissue 2008).
13
Neb. Rev. Stat. Ā§ 33-103 (Reissue 2008).
14
Glass v. Kenney, supra note 7,268 Neb. at 709
,687 N.W.2d at 911
(quoting In re Interest of Noelle F. & Sarah F., 249 Neb. 628,544 N.W.2d 509
(1996)).
15
Id.(quoting State v. Jones,264 Neb. 671
,650 N.W.2d 798
(2002)).
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may have overlooked the IFP application and poverty affida-
vit, as they were transmitted with the docketing documents16
and did not appear in the transcript of filings.)
Merits of IFP A pplication
We now turn to the merits of Carterās application to proceed
IFP on appeal. The district court, on its own motion, denied
Carterās application because it concluded that his underlying
motion for postconviction relief was frivolous.
The statute authorized the district court to deny leave if it
determined that Carterās motion for postconviction relief was
frivolous. Except in those cases where the denial of IFP sta-
tus āwould deny a defendant his or her constitutional right to
appeal in a felony case,ā Ā§ 25-2301.02 allows the court āon
its own motionā to deny IFP status on the basis that the legal
positions asserted by the applicant are frivolous or malicious,
provided that the court issues āa written statement of its rea-
sons, findings, and conclusions for denial.ā17 A frivolous legal
position is one wholly without merit, that is, without rational
argument based on the law or on the evidence.18 The district
courtās order set forth the required finding.
To review the district courtās finding, we must consider
Carterās underlying motion for postconviction relief. In that
motion, Carter argues that his jury should have received a
voluntary manslaughter instruction pursuant to State v. Smith.19
However, he admits that he also relied upon Smith in his
2012 motion. He also claims that Smith and the U.S. Supreme
Courtās 2013 decision in Alleyne v. United States,20 taken
16
See Neb. Ct. R. App. P. Ā§ 2-101(B)(4) (rev. 2010).
17
Ā§ 25-2301.02(1). See Cole v. Blum, 262 Neb. 1058,637 N.W.2d 606
(2002).
18
Castonguay v. Retelsdorf, 291 Neb. 220,865 N.W.2d 91
(2015).
19
State v. Smith, 282 Neb. 720,806 N.W.2d 383
(2011).
20
Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151,186 L. Ed. 2d 314
(2013).
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together, render the āabsence . . . of [a] sudden quarrelā an
element of first degree murder. He argues that Alleyne requires
this conclusion because āthe absence or presence of sudden
quarrel, raises the sentencing floor from 20 years to life.ā
(Emphasis in original.)
Carterās arguments regarding Alleyne are frivolous. Alleyne
is the most recent decision in a line of cases where the U.S.
Supreme Court has wrestled with the distinction between the
elements of a crime and āāsentencing factors,āā which are
āfacts that are not found by a jury but that can still increase
the defendantās punishment.ā21 In Alleyne, the Court held that
facts that increase the mandatory minimum sentence must be
submitted to the jury, rather than be decided by the judge as
sentencing factors. Alleyne is an extension or application of
Apprendi v. New Jersey,22 where the Court held that facts that
increase the prescribed statutory maximum sentence must be
submitted to the jury, rather than submitted to the judge as
sentencing factors. Carterās reliance on Alleyne is misplaced;
the absence or presence of a sudden quarrel is not a sen-
tencing factor under Nebraska law. Alleyne simply does not
apply here.
[4-6] More important, Carterās previous attempt to invoke
Smith renders his current argument frivolous. Carterās claim
that Smith entitles him to relief is wholly without merit
because he relied upon Smith in his 2012 motion for post-
conviction relief. An appellate court will not entertain a suc-
cessive motion for postconviction relief unless the motion
affirmatively shows on its face that the basis relied upon for
relief was not available at the time the movant filed the prior
motion.23 Postconviction proceedings are not a tool whereby a
21
Id.,133 S. Ct. at 2156
.
22
Apprendi v. New Jersey, 530 U.S. 466,120 S. Ct. 2348
,147 L. Ed. 2d 435
(2000).
23
State v. Phelps, 286 Neb. 89,834 N.W.2d 786
(2013).
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defendant can continue to bring successive motions for relief.24
The need for finality in the criminal process requires that a
defendant bring all claims for relief at the first opportunity.25
Carter cannot rely upon Smith again. And without it, his argu-
ment is frivolous.
CONCLUSION
Because we conclude that Carter asserted only frivolous
legal positions in his motion for postconviction relief, we
resolve the second appeal by affirming the district courtās
order. Thus, pursuant to Ā§ 25-2301.02(1), we will not have
jurisdiction of the first appeal unless Carter pays the statutory
docket fee within 30 days of the date of release of this opin-
ion. We therefore hold the first appeal under submission for
payment of the statutory docket fee. If Carter fails to timely
pay the statutory docket fee, his first appeal will be dismissed
for lack of jurisdiction. We direct that upon payment of the
fee or upon expiration of the 30-day period without payment,
whichever occurs first, the clerk of the district court for
Douglas County shall file a supplemental certificate in case
No. S-14-1089 accordingly.
A ppeal in No. S-14-1089 held under submission.
Judgment in No. S-15-024 affirmed.
24
Id.
25
Id.