State v. Anderson

lease, and the mortgage is only coextensive with the term of
the lease.33 The mortgage interest falls with the termination of
the leasehold interest.34 Because Dodge I did not provide writ-
ten notice of its intent to renew the Ground Lease for another
term by May 31, 2007, the lease expired on May 31, 2008, and
Dodge II and Dodge Mortgage cannot rely on exhibit D of the
Tri-Party Agreement to revive it.
CONCLUSION
Based on the foregoing reasons, we affirm the judgment of
the district court.
A ffirmed.
miller-lermAn, J., not participating.
StAte of nebrASkA, Appellee , v. JAmeS
JAckSon A nderSon, AppellAnt.
781 N.W.2d 55
Filed April 2, 2010. 	No. S-09-348.
1. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
2. Collateral Attack: Jurisdiction. Collateral attacks on previous driving under the
influence convictions are impermissible unless the challenge is grounded upon
certain claims including that the trial court lacked jurisdiction over the parties or
subject matter.
3. Constitutional Law: Due Process: Drunk Driving: Prior Convictions: Right to
Counsel. The due process requirements of both the state and federal Constitutions
are satisfied by the right of direct appeal from a plea-based driving under the
influence conviction and the procedure set forth in Neb. Rev. Stat. § 60-6,196(3)
(Reissue 2004), which permits a defendant to challenge the validity of a prior
driving under the influence conviction offered for purposes of enhancement on
the ground that it was obtained in violation of the defendant’s Sixth Amendment
right to counsel.
4. Constitutional Law: Waiver. A defendant may waive a constitutional right or
guarantee provided it is done knowingly and voluntarily.
33 Bowen v. Selby, 106 Neb. 166, 183 N.W. 93 (1921).
34 Id.
STATe v. ANDeRSON 	631
Cite as 279 Neb. 631
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

Appeal from the District Court for Hall County: WilliAm t.
Wright, Judge. Affirmed.
David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson,
P.C., for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	StephAn,
mccormAck , and miller-lermAn, JJ.
miller-lermAn, J.
NATURe OF CASe
James Jackson Anderson appeals his conviction for driv-
ing under the influence (DUI), third offense. Anderson asserts
that the district court for Hall County erred by using two of
his prior DUI convictions for enhancement purposes over his
objection. He argues that the convictions should not have been
used because each conviction was obtained through the use of
the uniform waiver system set forth in Neb. Ct. R. § 6-1455 of
the uniform county court rules. We conclude that the district
court did not err, and we affirm his conviction.
STATeMeNT OF FACTS
Anderson was charged with DUI, third offense, in an infor-
mation in which it was alleged that he drove under the influ-
ence on May 18, 2008, and that he had twice previously been
convicted of DUI. On November 5, pursuant to a plea agree-
ment, Anderson pled no contest to the underlying DUI charge,
but it was left to be determined whether the conviction would
be enhanced as a third offense.
At the December 11, 2008, enhancement hearing, the State
offered evidence of Anderson’s two prior convictions for DUI.
The records showed that on July 10, 2003, and on July 7, 2005,
Anderson pled guilty to DUI in the Hall County Court. In each
case, Anderson completed a waiver and plea form in which he
waived rights and entered his plea. each form indicated that
Anderson was waiving his rights, inter alia, to have the com-
plaint read to him and be informed of the possible penalties,
632 	279 NeBRASkA RePORTS

to have a trial before a judge or jury, and to appeal any final
decision of the court. The form also stated that Anderson
“realize[d] that this plea admits the fault of my violation(s)
which may be used against me in any later proceeding.” With
respect to the 2003 conviction, Anderson was sentenced to
a fine of $400 and 9 months’ probation. With respect to the
2005 conviction, Anderson was sentenced to a fine of $400
and 7 days’ incarceration. The record of each prior conviction
showed that at the time of the plea and sentencing, Anderson
was represented by counsel.
Anderson testified at the enhancement hearing regarding
his prior convictions. He testified that with respect to both
convictions, he never saw a judge; never entered a court-
room; and never had a judge advise him of his rights, of the
consequences of waiving his rights, or of the potential for
enhancement in subsequent DUI convictions and the poten-
tial penalties in such subsequent convictions. Instead, he and
his attorney completed the waiver and plea forms and filed
them at the county courthouse. Anderson admitted on cross-
examination that with respect to each prior conviction, he
was represented by counsel, he knew he was pleading guilty
and would be sentenced, he signed the waiver and plea forms
containing the waiver of rights, and he had the opportunity to
read the forms before signing them.
Anderson also called as a witness the clerk magistrate of the
Hall County Court, who testified regarding procedures used
by the court with respect to waiver and plea forms. The clerk
magistrate testified that the records clerk who receives a waiver
and plea form fills in the order and stamps a judge’s signature
on the form and that the judge’s signature stamp is not used
without the direction or authorization of the judge. The waiver
and plea form has been used often in Hall County Court for
DUI convictions.
The State called as a rebuttal witness the Hall County Court
judge whose signature appeared on the waiver and plea forms in
both prior convictions. The trial judge testified that the waiver
and plea forms were used in accordance with § 6-1455 of the
uniform county court rules, which section authorizes the uni-
form waiver system. Section 6-1455 permits use of a waiver for
STATe v. ANDeRSON 	633
Cite as 279 Neb. 631

specific offenses listed in a schedule but also permits the use of
a waiver for other violations when authorized by a judge. Use
of the waiver system for DUI is determined on a case-by-case
basis. While Anderson did not appear before him, the judge
met with Anderson’s attorney in each case and authorized the
use of the waiver in Anderson’s cases, and the judge thereafter
authorized court personnel to stamp the judge’s signature on
the plea and waiver forms.
The judge testified that the procedure the judge used in con-
nection with the uniform waiver system was for the judge to
meet with the attorney, who then worked with the defendant to
complete and file the plea and waiver form. The sentence was
determined by the judge and was written in the judge’s notes,
which were provided to the attorney before the attorney and the
defendant filed the form. The judge testified that if the defend-
ant and his or her attorney were somehow dissatisfied with the
penalty resulting from this waiver system, they did not need
to file the form and instead could come back to the courtroom
“and we can have a trial.”
Following the enhancement hearing, the district court deter-
mined that Anderson’s objections to the use of the two prior
convictions were without merit and that both prior convictions
could be used for enhancement purposes. The court concluded
that Anderson was guilty of DUI, third offense. In its journal
entry and judgment filed January 22, 2009, the court noted
that the record was clear that Anderson was represented by
counsel in each prior DUI conviction. The court cited State
v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999), for the
proposition that the only statutory procedure for challenging a
prior DUI conviction offered for purposes of enhancement is
that set forth in Neb. Rev. Stat. § 60-6,196(3) (Reissue 2004),
which limits a challenge to an alleged denial of the Sixth
Amendment right to counsel. The district court further noted
that Anderson had argued that Louthan was inapplicable. The
court indicated that Anderson had claimed that by using the
uniform waiver system in waiving his right to appeal from the
prior convictions, he had been denied due process in connec-
tion with those convictions. Anderson claimed that he could
not exercise his due process rights unless he was allowed
634 	279 NeBRASkA RePORTS

to collaterally attack the prior convictions in this enhance-
ment proceeding.
The court rejected Anderson’s arguments on the basis that
Anderson knowingly waived his right to appeal by voluntarily
using the plea and waiver forms in the prior convictions. The
court concluded that there was “nothing in the public policy of
the State which requires any greater protection of [Anderson]
in making such bargains as occurred in the present case.” The
court rejected Anderson’s objections to the use of the two prior
convictions and found Anderson guilty of DUI, third offense.
Thereafter, the court sentenced Anderson to a fine, probation,
and jail time.
Anderson appeals.
ASSIGNMeNT OF eRROR
Anderson claims that he was denied the right to appeal and
that thus he was denied due process in each of the two prior
DUI convictions obtained using the uniform waiver system.
Therefore, he claims the district court erred when it used the
two prior DUI convictions to enhance his present DUI convic-
tion to a third offense.
STANDARD OF ReVIeW
[1] When dispositive issues on appeal present questions of
law, an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision of the court below.
State v. Head, 276 Neb. 354, 754 N.W.2d 612 (2008).
ANALYSIS
Anderson claims that he was denied due process in the two
prior DUI convictions and that the district court erred by using
the two convictions to conclude that he was guilty of DUI,
third offense. He specifically argues that he was denied a right
to appeal by virtue of his pleading guilty under the uniform
waiver system, thus denying him due process, and that there-
fore the two prior convictions should not have been considered
at the enhancement hearing. We conclude that Anderson was
not denied due process in the prior convictions and that the
district court did not err by considering the prior convictions
for enhancement in the present case.
STATe v. ANDeRSON 	635
Cite as 279 Neb. 631

[2] We have stated that collateral attacks on previous DUI
convictions are impermissible unless the challenge is grounded
upon the court’s lack of jurisdiction over the parties or subject
matter, State v. Royer, 276 Neb. 173, 753 N.W.2d 333 (2008),
or entail a violation of the defendant’s due process rights to
appeal or rights to counsel in violation of the defendant’s
Sixth Amendment rights, State v. Louthan, 257 Neb. 174, 595
N.W.2d 917 (1999). Anderson’s challenge to the prior convic-
tions is not based on jurisdiction, and thus, we do not consider
it on that basis. See Royer, supra.
[3] In Louthan, we held that
the due process requirements of both the state and federal
Constitutions are satisfied by the right of direct appeal
from a plea-based DUI conviction and the procedure
set forth in § 60-6,196(3), which permits a defendant to
challenge the validity of a prior DUI conviction offered
for purposes of enhancement on the ground that it was
obtained in violation of the defendant’s Sixth Amendment
right to counsel.
257 Neb. at 188, 595 N.W.2d at 926. We note that Anderson
makes no argument that his prior convictions were obtained
in violation of his right to counsel, and, indeed, the evidence
from the prior convictions shows that both convictions were
counseled. Thus, a challenge based on lack of counsel is
not implicated.
In the present appeal, Anderson claims he was denied a right
to appeal from the two prior DUI convictions and was thus
denied due process in connection with the two prior convic-
tions. However, because the record shows that he knowingly
and voluntarily waived his right to appeal in the prior DUI
convictions, he was not denied due process, and we reject
Anderson’s claim.
With regard to the right of direct appeal, the record shows
that upon pleading guilty, Anderson waived the enumerated
rights, including his right of appeal in both prior DUI convic-
tions, and he voluntarily chose to avail himself of the conve-
nience of using the uniform waiver system. Under the uniform
waiver system, a defendant pleads guilty and waives the enu-
merated rights in exchange for a stated penalty. It is clear from
636 	279 NeBRASkA RePORTS

the record that the defendant can decline the waiver and stated
form of sentence and proceed to trial without waiver of rights,
thus preserving the right to appeal. In this regard, we note that
in his testimony at the enhancement hearing, Anderson admit-
ted with respect to both prior convictions that he signed the
waiver and plea forms, that he had counsel, and that he had the
opportunity to read the forms before signing them. He did not
decline the opportunity to use the uniform waiver system and,
to the contrary, availed himself of its advantages.
[4] We have stated, in a case involving a waiver of the right
to appeal, that a “defendant may waive a constitutional right
or guarantee provided it is done knowingly and voluntarily.”
State v. Hatten, 187 Neb. 237, 242, 188 N.W.2d 846, 850
(1971). To the extent Anderson argues that he was denied a
right to appeal, we reject such argument and agree with the
district court’s ruling that Anderson received the protections to
which he was entitled. The record shows that Anderson validly
waived his rights to appeal and that he was not denied due
process. A defendant can waive a constitutional right, includ-
ing the right to appeal, if done knowingly and voluntarily.
Hatten, supra. The record is clear that Anderson waived his
right to appeal in each prior DUI conviction knowingly and
voluntarily, and he was not therefore denied due process in
connection with those convictions. The district court properly
rejected Anderson’s objections to the use of the two prior DUI
convictions obtained under the uniform waiver system. The
district court did not err in enhancing Anderson’s DUI convic-
tion to third offense.
CONCLUSION
We conclude that Anderson’s challenge to his two prior DUI
convictions was without merit and that therefore the district
court did not err in considering such prior convictions when
it found that Anderson was guilty of DUI, third offense. We
affirm his conviction.
A ffirmed.
STATe v. ANDeRSON 	637
Cite as 279 Neb. 631