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05/25/90 STATE NEBRASKA v. SEAN PHINNEY

May 25, 1990

STATE OF NEBRASKA, APPELLEE,
v.
SEAN PHINNEY, APPELLANT



Appeal from the District Court for Saline County: Orville L. Coady, Judge.

As Corrected January 23, 1991.

Hastings, C.j., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, JJ.

SYLLABUS BY THE COURT

1. : Juvenile Courts: Jurisdiction: Waiver. In deciding whether to grant a requested waiver of jurisdiction and to transfer the proceedings to juvenile court, the court having jurisdiction over a pending criminal prosecution must carefully consider the juvenile's request in light of the criteria or factors set forth in Neb. Rev. Stat. § 43-276 (Reissue 1988).

2. : Juvenile Courts: Jurisdiction: Waiver. The district court may properly refuse to waive jurisdiction over a criminal proceeding to the juvenile court where the district court complies with provisions of statute and makes a statement of its findings which provides sufficient specificity to permit meaningful review by the Supreme Court.

3. Pleas: Waiver: Jurisdiction. Although as a general rule the voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge, whether the defense is procedural, statutory, or constitutional, it does not waive defenses that are jurisdictional.

4. Juvenile Courts: Jurisdiction: Waiver: Pleas: Appeal and Error. A request to a court to waive jurisdiction to the juvenile court raises a jurisdictional challenge, and a defendant may appeal an unfavorable ruling even after entering a plea of guilty or tendering a plea of no contest.

The opinion of the court was delivered by: Hastings

Following a conviction for second degree murder upon a plea of no contest and a sentence to a term of imprisonment for 30 years, the defendant, Sean Phinney, a 15-year-old juvenile, appeals from his conviction, his sentence, and an earlier order denying his motion to remove these proceedings to the juvenile court. The denial of removal under Neb. Rev. Stat. § 43-276 (Reissue 1988) constitutes his sole assignment of error.

The defendant was born on August 30, 1973. On January 20, 1989, after a fight with his mother, Linda Phinney, he shot and killed her. He was originally charged with first degree murder and use of a firearm to commit a felony. On March 7, 1989, defendant filed a motion to remove the proceedings to juvenile court.

The motion to remove was denied. Thereafter a plea agreement was entered into between the State and the defendant whereby an amended information charging only second degree murder was filed.

At the hearing on the motion to remove, a written stipulation was entered into between the State and counsel for the defendant. The parties stipulated that the State would be able to call "certain witnesses with whom the defense is familiar," who would testify in essence that (1) on January 20, 1989, Linda Phinney was shot to death in her home in Wilber, Nebraska, (2) the defendant committed the act which caused Linda Phinney's death, and (3) "a letter found at the scene which the State believes to be written by Defendant, would indicate that the Defendant had thought about committing the act of violence for a period of time before the act was committed."

The letter referred to is found as the last page of the presentence investigation report. It states, "Here is how it happen[.] Mom and I had a fight and I went out for a hour came in the house and she was sleeping so I loaded the 22 rifle and went in her room and put the gun to her head and pull the chirger[.]" A police report written by Sgt. G.L. Moss relates that the victim's body was found on the floor of the kitchen.

The defendant called six witnesses. Steven Wallick, a guidance counselor at the school defendant attended, testified that defendant, held back in the eighth grade, was approximately a year behind his age group in maturity. The witness observed that the last couple of days before January 20, 1989, defendant seemed a little more withdrawn.

Two women neighbors, who described themselves as friends of the defendant and his mother, Linda, testified that Sean was upset over the separation of his mother and adoptive father and that he and his mother were constantly fighting with each other, particularly over her habit of spending weekends in Lincoln with her boyfriend. There was also testimony that the defendant seldom got angry and that, if he did, he was never violent.

Defendant's grandmother, who was Linda's mother, testified that she had always had a good relationship with both her daughter and grandson. She expressed the belief that Linda was partly responsible for what had happened because of Linda's going to ...


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