State v. Paulsen

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11/29/2019 12:10 AM CST




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                                                  STATE v. PAULSEN
                                                  Cite as 

                                        State of Nebraska, appellee, v.
                                          Larry Paulsen, appellant.
                                                    ___ N.W.2d ___

                                        Filed September 6, 2019.   No. S-18-936.

                 1. 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.
                 2. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
                    to acquire jurisdiction of an appeal, there must be a final order or final
                    judgment entered by the court from which the appeal is taken.
                 3. Jurisdiction: Judgments: Words and Phrases: Appeal and Error. For
                    purposes of appellate jurisdiction, a judgment is the final determination
                    of the rights of the parties in an action.
                 4. Final Orders: Appeal and Error. Under 

                    (Reissue 2016), the three types of final orders which may be reviewed
                    on appeal are (1) an order affecting a substantial right in an action that,
                    in effect, determines the action and prevents a judgment; (2) an order
                    affecting a substantial right made during a special proceeding; and (3)
                    an order affecting a substantial right made on summary application in an
                    action after a judgment is rendered.
                 5. Final Orders. Substantial rights under 

                    (Reissue 2016) include those legal rights that a party is entitled to
                    enforce or defend.
                 6. Probation and Parole: Appeal and Error. Claim-specific standards of
                    review apply to an appeal of an order refusing to modify or eliminate a
                    probation condition.

                  Appeal from the District Court for Dawson County: James
               E. Doyle IV, Judge. Affirmed.
                  Christopher Ferdico and Erik W. Fern, of Berry Law Firm,
               for appellant.
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                        STATE v. PAULSEN
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  Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Per Curiam.
   Over 6 months after the district court for Dawson County
sentenced him to probation and imposed various terms thereof,
Larry Paulsen filed a motion to modify one of those terms
relating to possession of firearms. The district court denied
the motion, and Paulsen has appealed. We conclude that the
district court did not err in denying Paulsen’s motion and therefore affirm.
                        BACKGROUND
Conviction and Sentence.
   Paulsen’s conviction in this case arose out of the district
court’s acceptance of his plea of guilty to driving under the
influence, second offense. The district court set forth its sentence in a journal entry filed on January 16, 2018, in which
it stated that it was sentencing Paulsen to jail for 30 days and
probation for 24 months “under the terms and conditions set by
the Court.” The district court also revoked Paulsen’s driver’s
license for 18 months and ordered him to pay a $1,000 fine.
The district court later entered an order setting forth various
conditions to which Paulsen would be subject during his 24
months of probation. One of the conditions states that Paulsen
shall not “have nor associate with anyone who has possession
of firearms, ammunition, or illegal weapons.”
   Paulsen did not appeal his conviction or sentence.
Motion to Modify Probation Order.
   On August 28, 2018, Paulsen filed a motion to modify the
terms of his probation under 

(3)
(Reissue 2016). Paulsen asked the district court to remove the
term of probation relating to firearms. In the motion, Paulsen
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asserted that he had “always been a collector of different firearms, including mostly hunting rifles or shotguns,” that he had
“always been in possession of those weapons in his residence,”
but that he “recently had that room locked up by Dawson
County Probation and the keys to the room were delivered
to [his] counsel.” Paulsen alleged that he had no history of
violence, that there was no evidence any of his driving under
the influence convictions were caused by firearm ownership,
and that there was thus no reasonable connection between
his rehabilitation and the firearms restriction in the probation
order. Paulsen also stated that he had not been sanctioned since
beginning his probation term.
   The State did not object to Paulsen’s motion, and consequently, the district court considered it without a hearing. In
a written order, the district court denied Paulsen’s motion. It
explained that the firearms restriction is part of the court’s
usual and customary terms of probation and that it is included
to protect the public and probation officers. The district court
then noted that in ruling on requests to modify probation conditions, it considers whether there has been a material change
in circumstances which arose after the entry of the probation
order. The district court found that Paulsen had not identified
a material change in circumstances or any other reason that
would entitle him to the relief sought. There is no indication
in the record that the administration of probation ceased during
the pendency of this appeal.
   Paulsen appeals the order denying modification.
                 ASSIGNMENT OF ERROR
   Paulsen contends that the district court erred by overruling
his motion for modification of his probation order.
                  STANDARD OF REVIEW
   [1] A jurisdictional question which does not involve a
factual dispute is determined by an appellate court as a matter of law. State v. McGuire, 

, 

(2018).
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   The standard of review governing orders denying a motion
to modify probation are discussed further in the analysis section below.
                          ANALYSIS
   Paulsen contends that the district court erred by denying his
request to eliminate the condition of his probation relating to
firearms. Before we may reach that question, however, we must
ensure we have appellate jurisdiction. See State v. Uhing, 

, 

 (2018). We have an independent
obligation to ensure we have appellate jurisdiction, 

 and
in this case, the State also contends appellate jurisdiction
is lacking.
Jurisdiction.
   [2,3] For an appellate court to acquire jurisdiction of an
appeal, there must be a final order or final judgment entered
by the court from which the appeal is taken. Simms v. Friel,

, 

 (2019). For purposes of appellate jurisdiction, a judgment is the final determination of the
rights of the parties in an action. State v. Thalmann, 

, 

 (2019). In a criminal case, the judgment
from which the appellant may appeal is the sentence. 

 Here,
the sentencing order was entered on January 16, 2018, and
the order setting forth the terms of Paulsen’s probation was
entered on February 22. Paulsen did not timely appeal from
either of those orders and therefore did not timely appeal from
a final judgment.
   [4] The jurisdictional question before us is thus whether the
order denying Paulsen’s motion for modification of his probation terms was a final order. Under 

(Reissue 2016), the three types of final orders which may be
reviewed on appeal are (1) an order affecting a substantial
right in an action that, in effect, determines the action and
prevents a judgment; (2) an order affecting a substantial right
made during a special proceeding; and (3) an order affecting
a substantial right made on summary application in an action
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after a judgment is rendered. State v. 

 We find
that the order from which Paulsen appeals falls into the third
category for reasons we will explain.
   Starting with the most straightforward aspect of the third
category of final orders, the district court’s order was made
“upon a summary application in an action after judgment.”
See § 25-1902. We have said that an order made “upon a summary application in an action after judgment” under § 25-1902
is “‘an order ruling on a postjudgment motion in an action.’”
See State v. Coble, 

, 

(2018). See, also, John. P. Lenich, What’s So Special About
Special Proceedings? Making Sense of Nebraska’s Final Order
Statute, 

, 313 (2001) (“only reasonable
interpretation of the words of the statute . . . is that an order
‘upon a summary application in an action after jugdment’ is
an order ruling on a post-judgment motion in an action”).
Paulsen’s motion seeking a modification of his probation terms
plainly meets that definition.
   While a more difficult question, we also find that an order
denying a motion to modify or eliminate a probation condition
affects a substantial right. We have identified many factors that
define when an order affects a substantial right. Broadly, these
factors relate to the importance of the right and the importance of the effect on the right by the order at issue. State v.
Thalmann, 

, 

 (2019).
   Regarding the importance of the right affected, we often
state that a substantial right is an essential legal right, not
merely a technical right. See, e.g., 

 Also relevant to the
importance of the right, we have stated that an order affects a
substantial right if it affects the subject matter of the litigation,
such as diminishing a claim or defense that was available to the
appellant prior to the order from which he or she is appealing.
See 

 Whether the effect of an order is substantial depends
on whether it affects with finality the rights of the parties in
the subject matter. 

 This aspect of affecting a substantial
right also depends on whether the right could otherwise be
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effectively vindicated. Id. An order affects a substantial right
when the right would be significantly undermined or irrevocably lost by postponing appellate review. Id.
   In order to determine whether an order denying a motion to
modify a probation condition affects a right that is sufficiently
important to be classified as substantial, we must consider the
source and nature of the right asserted. Paulsen contends that
§ 29-2263(3) confers a substantial right that was affected by
the district court’s order denying his motion to modify. The
text of § 29-2263(3) provides: “During the term of probation,
the court on application of a probation officer or of the probationer . . . may modify or eliminate any of the conditions
imposed on the probationer or add further conditions authorized by [

 (Reissue 2016)].”
   Section 29-2263(3) gives trial courts the authority to modify
or eliminate conditions of probation “[d]uring the term of
probation.” Because a defendant’s term of probation will not
begin until after the sentence is pronounced, § 29-2263(3)
creates an exception to the general rule that, once a valid
criminal sentence has been put into execution, the trial court
cannot modify, amend, or revise it in any way, either during
or after the term or session of court at which the sentence was
imposed. See, e.g., State v. Marrs, 

, 

 (2006). In other words, while other aspects of a criminal
sentence are quite static, § 29-2263(3) allows a court to make
adjustments to conditions of probation as changing circumstances warrant.
   Section 29-2263(3) is not so explicit about the standards
trial courts are to apply when considering whether to modify
or eliminate probation terms. But § 29-2263(3) is part of a
collection of statutes dealing with probation. As we often say,
such a collection of statutes pertaining to a single subject matter “are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature,
so that different provisions are consistent, harmonious, and
sensible.” See State v. McGuire, 

, 901, 921
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N.W.2d 77, 83 (2018). And another statute in this collection of
statutes, 

 (Reissue 2016), addresses
the standards courts are to consider in imposing conditions
of probation.
   Section 29-2262 provides trial courts with considerable
discretion in fashioning conditions of probation, but also provides some guidance as to what courts are to consider in doing
so. Section 29-2262(1) directs courts sentencing an offender
to probation to “attach such reasonable conditions as it deems
necessary or likely to insure that the offender will lead a
law-abiding life.” Section 29-2262(2) sets forth a number of
specific conditions that a court may impose and also states
that “any other conditions reasonably related to the rehabilitation of the offender” may be imposed. In addition to these
limitations on permissible probation conditions, some probation conditions may also be subject to constitutional limitations. See, e.g., State v. Rieger, 

, 

 (2013).
   Mindful of our obligation to read § 29-2263(3) in pari
materia with § 29-2262, we believe § 29-2263(3) is best read
as giving a probationer the right to initiate a process where
the sentencing court may assess whether, in light of new circumstances arising during the course of probation and within
the bounds of constitutional limitations, conditions might reasonably be changed to better accomplish the primary goal of
probation—“to insure that the offender will lead a law-abiding
life.” See § 29-2262(1). In some cases, a probationer might
demonstrate that because of changed circumstances, a probation condition is no longer appropriate. A probationer might,
for example, demonstrate that, in light of new circumstances,
a condition that was once “reasonably related to the rehabilitation of the offender” is no longer so. See § 29-2262(2)(r). Of
course, the statutory ability to initiate a modification process
is not an opportunity to collaterally attack the sentencing judgment or to reassess whether the initial conditions of probation
were erroneous. That is the proper subject of an appeal from
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the judgment of the initial sentence and must be taken within
the time limit established by the Legislature.
   [5] With this understanding of the right conferred by
§ 29-2263(3) established, it becomes clearer that the denial of
relief sought thereunder affects a substantial right. Substantial
rights under § 25-1902 include those legal rights that a party
is entitled to enforce or defend. Cattle Nat. Bank & Trust Co.
v. Watson, 

, 

 (2016). Appellate
courts regularly allow parties to enforce their right to not be
subjected to probation conditions that are unauthorized by
law at the time of sentencing. See, e.g., State v. Rieger, supra.
We see no reason why the right to be subjected to only those
probation terms authorized by law is any less substantial when
sought during the term of probation. Moreover, an order denying modification or elimination of conditions affects the right
with finality; there is no later point at which the issue could be
effectively reviewed on appeal.
   While the reasons set forth above suggest that the district
court’s order is an order affecting a substantial right made on
summary application in an action after judgment is rendered,
the State contends that a different conclusion follows from the
Nebraska Court of Appeals decision in State v. Volcek, 

, 

 (2007). We disagree.
   In Volcek, a defendant was sentenced to probation with one
of the conditions requiring the defendant to serve a term of 45
days’ imprisonment “‘unless waived by the Court.’” 

, 

. The probation order required
the term of imprisonment to begin on a specified date and set
a hearing on that same date for the court to determine whether
the jail term should be waived. The defendant did not appeal
the original sentencing and probation order, but attempted to
appeal from the trial court’s later decision not to waive the jail
sentence. The Court of Appeals reasoned that the defendant did
not have any substantive right to have the jail term waived, but
that the decision was merely within the discretion of the trial
court and was thus not appealable.
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   The State contends that like the request to waive the jail
term in Volcek, Paulsen did not have any substantive right to
have conditions of probation modified or eliminated. Unlike
this case, however, the defendant in Volcek was not requesting
that a term of probation be modified or eliminated. Instead, the
trial court was simply presented with the question of whether,
under the permissive language of the original probation order,
the jail term should be waived.
   We recognize that Volcek does contain a reference to the
language of § 29-2263(3) following its conclusion that the
decision to waive the jail term was entirely within the discretion of the trial court. This reference is somewhat cryptic,
given that there did not appear to be a motion to modify or
eliminate probation conditions in that case. In any event, to the
extent Volcek suggests that § 29-2263(3) provides no standards
by which motions brought thereunder are to be evaluated and
leaves them solely to the unfettered and unreviewable discretion of the trial court, we disapprove for the reasons we have
set forth above.
   For these reasons, we conclude that the order denying
Paulsen’s motion was a final, appealable order.
Merits.
   Before turning to the merits of Paulsen’s appeal, we pause
to address the standard of review. We do not appear to have
previously addressed the standard of review governing an order
denying a motion brought under § 29-2263(3).
   [6] When probation conditions are challenged on direct
appeal, the standard of review depends on the challenge
asserted. In State v. Rieger, 

, 

(2013), we reviewed a claim that a condition of probation
that infringed on a fundamental constitutional right was not
sufficiently tailored to an offender’s rehabilitative process for
an abuse of discretion. In contrast, the question of whether a
condition of probation is authorized by statute is a question
of law subject to de novo review. See, State v. Dinslage, 

, 

 (2010); State v. Grimm, 240 Neb.
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863, 

 (1992). We hold that these same claim-specific standards of review apply to an appeal of an order
refusing to modify or eliminate a probation condition. With
these standards established, we proceed to consider the merits
of Paulsen’s argument.
   Paulsen offers a primary and an alternative argument that the
district court erred by refusing to remove the firearms condition. We are not persuaded by either.
   Paulsen’s primary argument is that because the firearms
restriction affects his fundamental right to bear arms under the
U.S. and Nebraska Constitutions, any such restriction must be
subjected to heightened scrutiny, and that the restriction in this
case cannot withstand such review. In support of this argument,
Paulsen invokes Rieger, where we held that because a probation condition affected a fundamental constitutional right, the
condition must be “narrowly tailored and reasonably related
to the rehabilitative process.” 286 Neb. at 796, 839 N.W.2d
at 288.
   As Paulsen must acknowledge, however, he did not argue
in the district court that the firearms restriction was subject to
heightened scrutiny for constitutional reasons. Nor did he argue
that because he pled to an offense that was not a felony, the
firearms restriction should have included the “written permission by the court” language set forth in § 29-2262(2)(i). We
have held that a court cannot err with respect to a matter not
submitted to it for disposition and that an issue not presented
to or passed on by the trial court is not appropriate for consideration on appeal. See Sherman T. v. Karyn N., 

,

 (2013). Because Paulsen did not present these
arguments to the district court, they are not properly before us
on appeal.
   This leaves Paulsen’s alternative argument. Here, Paulsen
contends that even if the heightened scrutiny we applied in
Rieger does not apply, the firearms restriction is still improper
given the crime for which probation was imposed and Paulsen’s
lack of a history of violence.
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   Paulsen articulated the substance of this argument in the
district court. In his motion, he alleged that he did not have
a propensity for or history of violence, that his criminal convictions for driving under the influence did not involve firearms, that there was no connection between his rehabilitation
and his possession of firearms, and that there was no risk to
public safety in removing the firearms restriction. But while
Paulsen made all of these allegations in support of his motion
to modify, none of them arise out of circumstances that developed during the term of probation. Instead, all of these arguments for why the firearms restriction was unreasonable could
have been made in a challenge to the firearms restriction on
direct appeal.
   The district court relied on the absence of a material change
in circumstances as a reason for refusing to modify the firearms restriction. We do not believe the district court erred
by doing so. As we noted recently in State v. Dill, 

, 

 (2018), although § 29-2263(3)
allows for the modification of probation conditions during the
term of probation, objections to probation conditions “should
be brought to the sentencing court’s attention for possible elimination or modification at the outset.” Our conclusion in Dill is
consistent with the “fundamental principle” that “[t]he need for
finality in the criminal process requires that a defendant bring
all claims for relief at the first opportunity.” State v. Parnell,

, 

 (2016).
   Our conclusion in Dill is also consistent with the understanding of § 29-2263(3) set forth in this opinion. As we have
explained, we understand § 29-2263(3) to allow trial courts
to adjust probation terms during the course of probation as
new circumstances warrant. We do not, however, understand
§ 29-2263(3) to allow probationers to challenge terms of probation based on arguments that could have been raised in a
direct appeal of their sentence. If § 29-2263(3) was construed
to allow such challenges, a party that failed to challenge a probation condition on direct appeal could file a motion to modify
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and, if unsuccessful, appeal the denial of the motion to modify.
We will not interpret § 29-2263(3) to effectively eliminate the
deadline to appeal a criminal sentence set forth in 

 (Cum. Supp. 2018) in the context of challenges
to probation conditions.
   While nearly all of the allegations Paulsen made in his
motion to modify were known to him at the time of sentencing,
we acknowledge that Paulsen’s motion to modify also alleged
that he had not been sanctioned during the term of his probation. We also acknowledge that Paulsen’s apparent compliance
with his terms of probation for approximately 6 months is not
a basis upon which Paulsen could have sought removal of the
firearms restriction on direct appeal. Even so, our conclusion
that the district court did not err in denying Paulsen’s motion
to modify remains unchanged. Compliance with the terms of
probation is the expectation for all probationers. The mere fact
that a probationer has complied with the terms of probation for
some period of time is not a sufficient change in circumstances
so as to entitle a probationer to a modification of the conditions of probation.
                      CONCLUSION
   Because we find that the district court did not err in denying Paulsen’s motion to modify the terms of his probation,
we affirm.
                                                    A ffirmed.