Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/10/2024 06:07 PM CDT
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. DAVIS
Cite as 317 Neb. 59
State of Nebraska, appellee and
cross-appellant, v. Michael D. Davis,
appellant and cross-appellee.
___ N.W.3d ___
Filed July 5, 2024. No. S-23-930.
1. Judgments: Appeal and Error. When dispositive issues on appeal
present questions of law, an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
2. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
3. Criminal Law: Judgments: Sentences: Appeal and Error. In a
criminal case, the judgment from which the appellant may appeal is
the sentence.
4. Judgments: Collateral Attack. When a judgment is attacked in a
way other than by proceeding in the original action to have it vacated,
reversed, or modified, or by a proceeding in equity to prevent its
enforcement, the attack is a collateral attack.
5. ____: ____. Absent an explicit statutory or common-law procedure permitting otherwise, only a void judgment may be collaterally attacked.
6. Postconviction: Collateral Attack. Postconviction relief is a special
statutory proceeding that permits collateral attack upon a criminal
judgment.
7. Postconviction: Constitutional Law. Postconviction relief is a very
narrow category of relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable.
8. Sentences. When a sentencing court imposes an indeterminate sentence
but that sentence fails to pronounce a valid minimum term under Neb.
Rev. Stat. § 29-2204(1)(a) (Cum. Supp. 2022), the minimum term shall
be the minimum imposed by law pursuant to § 29-2204(1)(b).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. DAVIS
Cite as 317 Neb. 59
9. ____. When a valid 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.
10. Postconviction: Sentences. Matters relating to sentences imposed
within statutory limits are not a basis for postconviction relief.
11. Postconviction: Constitutional Law. Postconviction relief is only
available where a constitutional violation renders the judgment void
or voidable.
Appeal from the District Court for Saline County, David J.
A. Bargen, Judge. Vacated and dismissed.
Justin Kuntz, of Hanson, Hroch & Kuntz, for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Cassel, J.
INTRODUCTION
Michael D. Davis sought postconviction relief, asserting that
a criminal sentence did not comply with a statute. The district
court sustained the motion and imposed a new sentence. But
because the law supplied a valid minimum term for the initial sentence, the sentence was not void and the court lacked
authority to modify it. We vacate the new sentence and dismiss
the appeal.
BACKGROUND
Original Sentences
In 2021, Davis entered guilty pleas to three counts of child
abuse, all Class IIIA felonies, and one count of first degree
arson, a Class II felony. For the arson conviction, the court
imposed a sentence of 20 to 20 years’ imprisonment.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. DAVIS
Cite as 317 Neb. 59
Direct Appeal
Davis filed a direct appeal. 1 Because he failed to include an
assignments of error section in his brief, the Nebraska Court
of Appeals reviewed for plain error only. It found none with
respect to the sentences imposed. Neither party asked for further review by this court.
Postconviction Proceedings
Davis timely filed a motion for postconviction relief. He
asserted that the sentence imposed for arson was “void, voidable, and in violation of [his] rights as guaranteed by the
Constitution[s] of the United States and State of Nebraska.”
Specifically, Davis claimed that the sentence violated Neb.
Rev. Stat. § 29-2204(1)(a) (Cum. Supp. 2022) and this court’s
decision in State v. Lessley, 2 because the minimum term of
imprisonment was not less than the maximum term. Alleging
that the sentence was void or voidable on its face, Davis
asserted that his request for relief was not barred. He asked
that the arson sentence be vacated and that he be resentenced.
On May 25, 2023, the court entered an order ruling on the
postconviction motion. It reasoned that because the arson sentence did not comply with the statutory requirement that the
minimum term be less than the maximum term, the sentence
was invalid on its face, constituted plain error, and was void
ab initio. Although the court stated that the sentencing issue
could have been raised on direct appeal, it found the issue was
not procedurally barred “because the sentencing issue constitutes plain error, making his sentence void ab initio.”
The court concluded that it was necessary to resentence
Davis for the arson conviction, and it set resentencing for a
later date. No appeal was taken from this order.
1
See State v. Davis, No. A-21-619,
2022 WL 677946 (Neb. App. Mar. 8,
2022) (selected for posting to court website).
2
State v. Lessley,
301 Neb. 734,
919 N.W.2d 884 (2018).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. DAVIS
Cite as 317 Neb. 59
Requests for Telephone Records
After Davis filed his motion for postconviction relief, he
sought telephone records of his March 2023 conversations
with his wife. To obtain such records, he filed a motion to
subpoena telephone records, a praecipe for subpoena to be
served on an individual with the Nebraska Department of
Correctional Services directing that individual to bring telephone records, and a motion for “Transcript’s of Institution
Phone records/calls.” The court denied the motions.
Resentencing
In October 2023—shortly after a newly amended version of
Neb. Rev. Stat. § 83-1,110(1)(b) (Supp. 2023) became effective 3—the court imposed a sentence of 19 years 11 months to
20 years’ imprisonment for the arson conviction, to run concurrently with the other sentences. It granted Davis credit for
1,072 days of time already served. The court advised Davis
that he would be eligible for parole “after serving one half
of the minimum term of 19 years and 11 months” and that
Davis’ mandatory discharge date would be “after serving one
half of the maximum term of 20 years assuming maximum
good time.”
Davis appealed, and we granted the State’s petition to bypass
review by the Court of Appeals. 4
ASSIGNMENTS OF ERROR
Davis alleges that the district court erred or abused its discretion by (1) imposing a sentence that exceeded the parole
date mandated by § 83-1,110(1)(b) and violated Nebraska’s
truth-in-sentencing laws, (2) imposing an excessive sentence,
and (3) denying Davis the right to use the court’s subpoena
power to obtain recorded telephone conversations from the
Department of Correctional Services.
3
See 2023 Neb. Laws, L.B. 50, § 47.
4
See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2022).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. DAVIS
Cite as 317 Neb. 59
On cross-appeal, the State assigns that the court erred by
finding Davis’ original sentences were subject to a collateral
attack and by granting postconviction relief when it was not a
legally available remedy.
STANDARD OF REVIEW
[1] When dispositive issues on appeal present questions
of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the
court below. 5
ANALYSIS
Authority to Impose New Sentence
Before considering the errors assigned by Davis, we address
the State’s arguments challenging the district court’s authority
to resentence Davis.
[2] The State makes two attacks. It asserts plain error,
contending that the court lacked such authority. Plain error is
error plainly evident from the record and of such a nature that
to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. 6 It also
filed a cross-appeal in which it alleges that the court erred by
finding Davis’ original sentences were subject to a collateral
attack and by granting postconviction relief when it was not a
legally available remedy.
[3-5] In a criminal case, the judgment from which the
appellant may appeal is the sentence. 7 When a judgment is
attacked in a way other than by proceeding in the original
action to have it vacated, reversed, or modified, or by a proceeding in equity to prevent its enforcement, the attack is a
collateral attack. 8 Absent an explicit statutory or common-law
5
State v. Barnes, 303 Neb. 167,
927 N.W.2d 64 (2019).
6
State v. Brennauer,
314 Neb. 782,
993 N.W.2d 305 (2023).
7
State v.
Barnes, supra note 5.
8
Id.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. DAVIS
Cite as 317 Neb. 59
procedure permitting otherwise, only a void judgment may be
collaterally attacked. 9
[6,7] Postconviction relief is a special statutory proceeding
that permits collateral attack upon a criminal judgment. 10 But
postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations that
render the judgment void or voidable. 11
Here, Davis filed a motion for postconviction relief to challenge his original sentencing. He asserted that the sentence for
arson was partially void.
Davis alleged that the sentence of 20 to 20 years’ imprisonment for a Class II felony did not comply with § 29-2204(1).
That statute provides:
Except when a term of life imprisonment is required by
law, in imposing a sentence upon an offender for any
class of felony other than a Class III, IIIA, or IV felony,
the court shall fix the minimum and the maximum terms
of the sentence to be served within the limits provided
by law. The maximum term shall not be greater than the
maximum limit provided by law, and:
(a) The minimum term fixed by the court shall be any
term of years less than the maximum term imposed by the
court; or
(b) The minimum term shall be the minimum limit provided by law. 12
Focusing on § 29-2204(1)(a), Davis asserted that his sentence
for arson was void because the minimum term was the same as
the maximum term. The district court agreed that it was void.
We do not.
No party quarrels with the maximum sentence imposed by
the court, and we agree that it complies with § 29-2204(1).
9
Id.
10
State v. Robertson, 294 Neb. 29,
881 N.W.2d 864 (2016).
11
State v. Ammons,
314 Neb. 433,
990 N.W.2d 897 (2023).
12
§ 29-2204(1) (emphasis supplied).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. DAVIS
Cite as 317 Neb. 59
Under § 29-2204(1), the maximum term shall not be greater
than the maximum term provided by law.
Neb. Rev. Stat.
§ 28-105(1) (Cum. Supp. 2022) provides that the maximum term for a Class II felony is 50 years’ imprisonment.
Accordingly, the maximum term imposed by the court of 20
years’ imprisonment was valid.
The parties agree that the minimum term pronounced by
the court does not comply with § 29-2204(1)(a). As they recognize, we have spoken on the validity of a sentence of 20 to
20 years’ imprisonment for a Class II felony. In Lessley, we
declared that the initial sentence of 20 to 20 years’ imprisonment was invalid and subject to modification. 13 There, after
pronouncing that sentence and following a discussion with
counsel, the district court added 1 day to the maximum term.
On direct appeal, we affirmed the modified sentence of 20 to
20 years’ imprisonment plus 1 day.
The procedural posture here is different. We are not addressing a direct appeal from the initial sentence. Rather, we are
presented with a collateral attack.
We recall our jurisprudence concerning a sentencing court’s
failure to affirmatively state a minimum term. In connection with imposition of a flat sentence of life imprisonment
in State v. Schnabel, 14 we stated that by operation of law,
the minimum sentence is the minimum imposed by law. We
explained:
[W]hile § 29-2204 does not require that a minimum term
be different from a maximum term, it does require that
a minimum term be affirmatively stated if it is to be
imposed, and if a minimum term is not set forth, an indeterminate sentence will be imposed by operation of law. 15
Because Schnabel involved a Class IB felony, the minimum
provided by law under § 28-105 was 20 years’ imprisonment.
13
State v. Lessley, supra note 2.
14
State v. Schnabel,
260 Neb. 618,
618 N.W.2d 699 (2000).
15
Id. at 623,
618 N.W.2d at 703.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. DAVIS
Cite as 317 Neb. 59
In State v. Gass, 16 we likewise determined that the pronouncement of a “flat sentence of imprisonment ‘for a period of life’
effectively imposed a maximum term of life imprisonment
and by operation of law a minimum term (for parole eligibility purposes) of 20 years’ imprisonment.” Of course, at that
time, § 29-2204 permitted an indeterminate sentence for a
Class II felony where the minimum term was the same as the
maximum term. 17 Now, § 29-2204 (Cum. Supp. 2022) does
not permit the minimum term for a Class II felony to be the
same as the maximum term.
We think a rationale similar to Schnabel applies when a
sentencing court imposes an indeterminate sentence where
the minimum term is the same as the maximum term and is
thus contrary to § 29-2204(1)(a). In both situations, the sentencing court effectively fails to pronounce a valid minimum
sentence. So, in both situations, by operation of law, the
minimum sentence should default to the minimum provided
by law.
[8] We hold that when a sentencing court imposes an
indeterminate sentence but that sentence fails to pronounce
a valid minimum term under § 29-2204(1)(a), the minimum
term shall be the minimum imposed by law pursuant to
§ 29-2204(1)(b). This could happen where the pronounced
minimum term is equal to or greater than the maximum term,
or where the pronounced minimum term is less than the statutory minimum under § 28-105.
Here, the court’s initial sentence of 20 to 20 years’ imprisonment did not set forth a valid minimum sentence under
§ 29-2204(1)(a). Thus, § 29-2204(1)(b) dictates that “[t]he
minimum term shall be the minimum limit provided by law.”
Under § 28-105(1), the minimum sentence for a Class II
felony is 1 year’s imprisonment. The minimum term occurred
by operation of law; it does not matter that the parties, the
16
State v. Gass, 269 Neb. 834, 838,
697 N.W.2d 245, 248 (2005).
17
See § 29-2204 (Reissue 2008).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. DAVIS
Cite as 317 Neb. 59
lower courts, and the Department of Correctional Services
may not have recognized the resulting sentence.
[9] Because the law supplied a valid minimum term of 1
year’s imprisonment, Davis’ initial sentence was not void.
When a valid 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. 18
[10,11] Further, matters relating to sentences imposed
within statutory limits are not a basis for postconviction
relief. 19 Postconviction relief is only available where a constitutional violation renders the judgment void or voidable. 20
Accordingly, the district court plainly erred by sustaining
Davis’ motion for postconviction relief and it lacked authority
to resentence Davis. We must vacate the new sentence.
Remaining Assignments of Error
The three errors assigned by Davis are all premised upon
the new sentence imposed. Because the district court had no
authority to resentence Davis, there was nothing from which
he could appeal. As we have said, “‘Nothing comes from
nothing.’” 21
CONCLUSION
Because Davis’ initial sentence was not void, the district
court lacked authority to grant the relief requested in Davis’
motion for postconviction relief. We vacate the new sentence
and dismiss the appeal.
Vacated and dismissed.
Freudenberg, J., not participating.
18
State v. Lessley, supra note 2.
19
State v. Burnett,
254 Neb. 771,
579 N.W.2d 513 (1998); State v. Evans,
218 Neb. 849,
359 N.W.2d 790 (1984).
20
State v. Boeggeman,
316 Neb. 581,
5 N.W.3d 735 (2024).
21
State v. Miller,
240 Neb. 297, 299,
481 N.W.2d 580, 581 (1992).
