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Meyer v. Frakes

Supreme Court of Nebraska

September 2, 2016

Barney D. Meyer, appellee,
v.
Scott R. Frakes, director, Nebraska Department of Correctional Services, et al., appellants.

         1. Habeas Corpus: Appeal and Error. On appeal of a habeas corpus petition, an appellate court reviews the trial court's factual findings for clear error and its conclusions of law de novo.

         2. Habeas Corpus. Where a party is unlawfully restrained of his or her liberty, the writ of habeas corpus is the appropriate remedy.

         3. ___. Habeas corpus is a collateral proceeding and as such cannot be used as a substitute for an appeal or proceedings in error. 4. Habitual Criminals: Sentences. A separate sentence for the nonexistent crime of being a habitual criminal is void.

         5. Criminal Law: Habitual Criminals. Habitual criminality is a state, not a crime. There is no such offense as being a habitual criminal.

         6. Sentences. A sentence outside of the period authorized by the relevant sentencing statute is merely erroneous and is not void.

         7. Habeas Corpus: Judgments: Sentences. Habeas corpus will not lie upon the ground of mere errors and irregularities in the judgment or sentence rendering it not void, but only voidable.

         8. Double Jeopardy: Sentences. Where a defendant has a legitimate expectation of finality, then an increase in his or her sentence in a second proceeding violates the prohibition of the Double Jeopardy Clause against multiple punishments for the same offense.

         9. Sentences: Notice. A defendant may acquire a legitimate expectation of finality in an erroneous sentence if the sentence has been substantially or fully served, unless the defendant was on notice that the sentence might be modified.

         Appeal from the District Court for Lancaster County: Jodi Nelson, Judge.

          Douglas J. Peterson, Attorney General, George R. Love, and Kale Burdick for appellees.

          Gerald L. Soucie for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          PER CURIAM.

         On April 20, 2016, the district court for Lancaster County granted a writ of habeas corpus to Barney D. Meyer. This matter arises from an appeal filed by Scott R. Frakes, director of the Nebraska Department of Correctional Services; Richard Cruickshank, warden of the Nebraska State Penitentiary; and the Nebraska Department of Correctional Services (collectively the appellants). As of the date of this opinion, Meyer remains in the custody of the department because he is unable to meet the conditions of his bond imposed by the district court. For the reasons set forth, we sustain Meyer's motion for summary affirmance and direct that Meyer be released from custody forthwith.

         BACKGROUND

         Convictions and Sentences

         Meyer was sentenced by the district court for Pierce County, Nebraska, on March 29, 2012, in case No. CR11-12, to an indeterminate prison term of 2 to 4 years for the crime of theft by receiving stolen property. He was given credit for 54 days already spent in custody. This sentence was ordered to be served consecutively to another sentence imposed in case No. CR11-29 on the same day.

         In case No. CR11-29, Meyer was charged in the information with count I, burglary, a Class III felony, and with "Count II - Enforceable as a Habitual Criminal." The court sentenced Meyer on count I to an indeterminate prison term of 2 to 4 years. He was given credit for 165 days. On count II, habitual criminal, Meyer was convicted and sentenced to an indeterminate prison term of 10 years. It was ordered that the [294 Neb. 670] sentences in case No. CR11-29 were to be served concurrently to one another, but consecutively to the sentence imposed in case No. CR11-12. Neither the State nor Meyer appealed the convictions or sentences imposed in either case No. CR11-12 or case No. CR11-29.

         Writ of Habeas Corpus

         Meyer petitioned the district court for a writ of habeas corpus, alleging that the sentence imposed in count II of the information in case No. CR11-29, habitual criminal, was a void sentence. Meyer alleged he had served the valid sentences imposed for theft in case No. CR11-12 and for burglary in case No. CR11-29. He alleged that he is now being held beyond the lawful term of his sentences and is entitled to be discharged.

         The district court granted the writ of habeas corpus. The court concluded that as to count II in case No. CR11-29, the separate offense of being a habitual criminal was a void sentence.

         The court relied in part upon State v. Rolling, [1] in which we stated that the habitual criminal statute did not establish a separate offense. We held that the habitual criminal statute provides an enhancement of the penalty for a felony conviction where one is also found to be a habitual criminal.

         In Rolling, the defendant was charged with four substantive felonies: two felony theft offenses, attempted armed robbery, and use of a weapon to commit a felony. He was additionally charged with a fifth count of being a habitual criminal. He was found guilty of the four substantive felonies and sentenced by the trial court on the first four counts to terms of imprisonment, none of which exceeded 10 years. He was also sentenced to a term of imprisonment as a habitual criminal. He appealed, claiming that the evidence was insufficient to have found him guilty and that the sentences imposed were too harsh and an abuse of discretion.

         [294 Neb. 671] On direct appeal, we found plain error in the sentencing of the defendant separately as a habitual criminal and pointed out that under the provisions of Neb. Rev. Stat. § 29-2221 (Reissue 1979), one is not sentenced as a habitual criminal. The habitual criminal statute is not a separate offense, but provides an enhancement of a penalty with a minimum prison sentence of 10 years and a maximum sentence of 60 years.

         In Rolling, we stated that State v. Gaston[2] set forth the proper procedure to be followed. In Gaston, the defendant was found guilty of forgery and, in a subsequent proceeding, of being a habitual criminal. The district court, instead of imposing one sentence on the forgery conviction for the mandatory minimum prison sentence of 10 years and a maximum sentence of 60 years required by § 29-2221, imposed separate prison sentences of 1 to 2 years on the forgery conviction and 20 to 30 years on the conviction under § 29-2221. On the day the sentence was pronounced, the court committed the defendant to the Nebraska Penal and Correctional Complex by entering a formal written journal entry of judgment and commitment for an indeterminate prison term of 20 to 30 years on the charge of forgery and being a habitual criminal. We held that the written entry of judgment stated a proper sentence, but that it did not conform to the two sentences imposed in open court.

         The defendant in Gaston contended on direct appeal that the second and separate habitual criminal sentence was illegal and void. We stated that "[o]n direct appeal this court has the power to remand a cause for a lawful sentence where the one pronounced was void as being beyond the power of the trial court to pronounce and where the accused himself invoked appellate jurisdiction for the correction of errors."[3]

         But here, the district court, in granting Meyer habeas relief, found most apposite Kuwitzky v. O 'Grady, [4] which presented [294 Neb. 672] a habeas action attacking the validity of the habitual criminal sentence, rather than through a direct appeal, as was the case in Rolling and Gaston. The court found Kuwitzky was nearly identical to the case at bar. The petitioner in Kuwitzky petitioned for a writ of habeas corpus, claiming his sentence under a second count for being a habitual criminal was null and void. The trial court denied the writ, and the petitioner appealed. We reversed the trial court's decision, concluding that the petitioner had been improperly sentenced separately as a habitual criminal and that he was unlawfully imprisoned and entitled to be released and discharged.

         In the present case, the court found that Meyer was similarly wrongfully sentenced in a separate count for being a habitual criminal. It concluded the sentence for being a habitual criminal was void. It granted the petition for writ of habeas corpus, concluding that Meyer was being held on a void sentence. Pursuant to Neb. Rev. Stat. § 29-2823 (Reissue 2008), the court set the matter for hearing for the determination of bond pending the appeal. As of this date, Meyer remains in the custody of the appellants, having been unable to meet the conditions for bond imposed by the district court.

         STANDARD OF REVIEW

         [1] On appeal of a habeas corpus petition, an appellate court reviews the trial court's factual findings for clear error and its conclusions of law de novo.[5]

         ANALYSIS

         [2, 3] The writ of habeas corpus has long been recognized in Nebraska. Where a party is unlawfully restrained of his or her liberty, the writ of habeas corpus is the appropriate remedy.[6] In an action for a writ of habeas corpus, including one which challenges extradition proceedings, the burden of proof is upon the petitioner to establish a claim that his or her [294 Neb. 673] detention is illegal.[7] Habeas corpus is a collateral proceeding and as such cannot be used as a substitute for an appeal or proceedings in error.[8]

         In his petition for writ of habeas corpus, Meyer alleges that the sentence imposed for being a habitual criminal in case No. CR11-29 is a void sentence. He further alleges that he has served the valid sentences imposed in cases Nos. CR11-12 and CR11-29 and that he is now being held beyond the lawful term of his sentences and is entitled to be discharged.

         In addressing his motion for summary affirmance, two questions are presented. First, Is being a habitual criminal a separate crime for which Meyer can be sentenced separately, such that his separate 10-year prison sentence for being a habitual criminal that he is currently serving is valid? Second, Is the sentence served by Meyer on the conviction for burglary a facially valid sentence that has been fully served by Meyer and cannot now be collaterally attacked by the State in an attempt to increase that sentence?

         Habitual Criminal

         [4, 5] As to the first question, the parties do not dispute that the habitual criminal statute is not a separate offense and that it instead provides an enhancement of the conviction committed by one found to be a habitual criminal.[9] As already described, in Rolling, [10] we held that the habitual criminal statute is not a separate offense, but, rather, provides an enhancement of the penalty with a minimum prison sentence of 10 years and a maximum sentence of 60 years for each count committed by one found to be a habitual criminal. And in other cases, such as Kuwitzky, which presented collateral attacks on the separate sentence for being a habitual criminal, we have explained that a separate sentence for the nonexistent [294 Neb. 674] crime of being a habitual criminal is void.[11] Habitual criminality is a state, not a crime.[12] There is no such offense as being a habitual criminal.[13]

         Having thus held that the habitual criminal statute is not a separate offense and cannot be charged and sentenced as such, we hold that Meyer's separate sentence of being a habitual criminal is void. This is not a contention disputed by either party. We proceed to determine whether the sentence served by ...


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