State v. Shelly

Fremont. It found that this fact was borne out by the title of
the initiative, which stated that the purpose of the Measure was
“[a]n ordinance of the City of Fremont, Nebraska, . . . to pro-
hibit the harboring of illegal aliens or hiring of unauthorized
aliens, providing definitions, making provision for occupancy
licenses, [and] providing judicial process . . . .”
Additionally, the district court found that every provision
within the Measure was part of its general subject. Although
the ordinance had several components dealing with occupancy,
licensing, electronic verification, government uses, resources,
and penalty provisions, the Measure was not confusing or
deceiving to the voters. The court concluded that since the
issues raised in the Measure had a natural and necessary con-
nection with each other and were part of the general subject of
regulating illegal aliens in Fremont, the single subject rule was
not violated. We agree.
CONCLUSION
The district court correctly determined that it did not have
subject matter jurisdiction to determine the substantive consti-
tutional challenge to the Measure unless and until it is approved
by the voters. The court also correctly determined that the cause
of action requesting a procedural review of the single subject
rule of the Measure was justiciable and could be decided prior
to the election and that the Measure had one general subject
and did not violate the single subject rule. We therefore affirm
the judgment of the district court in its entirety.
A ffirmed.
StAte of NebrASkA, Appellee , v.
tyruS t. Shelly, AppellANt.
782 N.W.2d 12
Filed April 23, 2010. 	No. S-09-618.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question that does
not involve a factual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion independent of the
lower court’s decision.
728 	279 NebrASkA repOrTS
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2. Courts: Appeal and Error. After receiving a mandate, a trial court is without
power to affect the rights and duties outside the scope of the remand from an
appellate court.
Appeal from the District Court for Douglas County: G erAld
e. morAN, Judge. Affirmed in part, and in part vacated and
remanded with directions.
brian S. Munnelly for appellant.
Jon bruning, Attorney General, and James D. Smith for
appellee.
heAvicAN, 	c.J., 	WriGht, 	coNNolly, 	G errArd, 	StephAN,
mccormAck, and miller-lermAN, JJ.
miller-lermAN, J.
NATUre OF CASe
Tyrus T. Shelly appeals the June 3, 2009, order of the dis-
trict court for Douglas County denying his second postconvic-
tion motion. We conclude that the district court was without
authority to consider the second postconviction motion at issue
until his first postconviction motion had been resolved. We
therefore affirm in part, and in part vacate and remand with
directions to dismiss Shelly’s second postconviction motion
filed January 23, 2009, without prejudice, and to hold an evi-
dentiary hearing on Shelly’s first postconviction motion filed
August 14, 2003, in accordance with our prior mandate in case
No. S-03-1045.
STATeMeNT OF FACTS
In 1995, pursuant to a plea agreement, Shelly pled guilty to
second degree murder, attempted second degree murder, and
two counts of use of a firearm to commit a felony. Shelly was
sentenced to imprisonment for 30 years to life on the murder
count, 25 to 30 years on the attempted murder count, and 5 to
10 years on each of the firearm counts. The sentence in the
attempted murder count was ordered to be served concurrent to
the sentence in the murder count; the sentences in the firearm
counts were ordered to be served concurrent to one another but
consecutive to the other sentences. In this appeal, we do not
STATe v. SheLLy 	729
Cite as 279 Neb. 728

consider the statutory correctness of the concurrent sentencing
on the firearms counts.
On August 14, 2003, Shelly filed a motion for postconvic-
tion relief in which he asserted that his trial counsel had failed
to comply with his request to file a direct appeal. After deter-
mining that Shelly’s allegations were conclusory in nature, that
he failed to specify what aspect of his case warranted an appeal
or what issues should have been appealed, and that he failed to
show how he was prejudiced by counsel’s alleged failure to file
an appeal, the district court denied postconviction relief with-
out an evidentiary hearing.
Shelly appealed the denial of his postconviction motion to
this court. On appeal, the State filed a suggestion for remand
in which it conceded that the district court erred by denying
the postconviction motion on the basis that Shelly failed to
show prejudice. The State cited State v. Trotter, 259 Neb. 212,
609 N.W.2d 33 (2000), in which we held that prejudice will
be presumed when counsel fails to file or perfect an appeal
after being so directed by a criminal defendant. The State also
cited State v. McCroy, 259 Neb. 709, 613 N.W.2d 1 (2000),
in which we applied the rule in Trotter to plea-based convic-
tions. Shelly filed a motion in support of the State’s suggestion
for remand.
We treated the filings as a stipulation for summary reversal
and concluded that summary reversal should be granted. In
an order filed November 26, 2003, in case No. S-03-1045, we
vacated the judgment of the district court denying postconvic-
tion relief and remanded the cause to the district court with
directions to conduct an evidentiary hearing with respect to
Shelly’s allegation that his trial counsel had failed to perfect
a direct appeal from his plea-based convictions and sentences
after being requested to do so by Shelly. Our mandate with
respect to this first postconviction action issued accordingly.
After our mandate, on January 23, 2009, Shelly filed a new
motion for postconviction relief captioned “Verified Motion
for postconviction relief.” In this motion, which we deem
as Shelly’s second motion for postconviction relief, Shelly
asserted six claims for relief: (1) that the trial court lacked sub-
ject matter jurisdiction, (2) that his pleas were invalid, (3) that
730 	279 NebrASkA repOrTS

he was denied counsel during a lineup, (4) that he was denied
effective assistance of trial counsel, (5) that he was denied
effective assistance of appellate counsel when counsel failed to
file a direct appeal, and (6) that he was denied effective assist-
ance of postconviction counsel. Shelly also asserted that his
postconviction counsel had withdrawn from representing him
in 2005, and the court subsequently granted Shelly’s request
for appointment of counsel.
The district court took up the January 23, 2009, second post-
conviction motion and entered an order with respect thereto
on June 3, which order is the subject of this appeal. In the
order, the district court noted that Shelly had previously filed
a motion for postconviction relief, that the district court had
overruled such motion, and that this court had remanded the
cause for an evidentiary hearing on the issue of counsel’s
alleged failure to file a direct appeal. The court determined
that “[b]ecause of the mandate on one issue, [the district court
had] no authority to consider the additional issues set forth
in [Shelly’s] most recent motion.” The court then stated that
even if it were to consider the motion filed January 23 as a
second motion for postconviction relief, the motion was “pro-
cedurally barred” as a successive motion. The court therefore
“overruled” the January 23 motion and ordered that “only the
one issue required by mandate is to be addressed at the eviden-
tiary hearing.”
Shelly appeals the June 3, 2009, order.
ASSIGNMeNTS OF errOr
Shelly claims that the district court erred by failing to
consider the additional issues he presented in the January 23,
2009, postconviction motion. Shelly claims that the court’s
determination that it did not have authority to consider the
second postconviction motion under the scope of this court’s
prior mandate was error or, in the alternative, that the court’s
determination that the motion was procedurally barred as a suc-
cessive motion was error.
STANDArD OF reVIeW
[1] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law,
STATe v. SheLLy 	731
Cite as 279 Neb. 728

which requires the appellate court to reach a conclusion inde-
pendent of the lower court’s decision. State v. York, 278 Neb.
306, 770 N.W.2d 614 (2009).
ANALySIS
We note first that although at oral argument in this appeal
Shelly sought to recharacterize his January 23, 2009, filing as
an amendment to his first postconviction motion, in his brief,
he referred to the January 23 motion as a “Second Verified
Motion for postconviction relief,” brief for appellant at 12,
and asserted that his first motion for postconviction relief “was
never adjudicated,” id. at 15. We note further that the January
23 filing was titled “Verified Motion for postconviction relief”
and contained no language requesting to amend the first motion
for postconviction relief. The January 23 motion is therefore
properly characterized as a second motion for postconvic-
tion relief.
In Shelly’s appeal to this court from the denial of his first
postconviction motion, we remanded the cause with directions
to hold an evidentiary hearing on the issue of whether he was
denied effective assistance of counsel when counsel did not file
a direct appeal. The record before us indicates that the eviden-
tiary hearing was never held, and there is no indication in the
record that Shelly made any sort of filing in the district court to
resolve the proceedings with respect to the first postconviction
motion. We conclude that because proceedings with respect to
the first postconviction motion have not been resolved, it was
premature for Shelly to file a second motion for postconviction
relief, and the district court should have dismissed such motion
rather than ruling on it.
In resolving the current appeal, we refer to State v. Wiemer,
3 Neb. App. 821, 533 N.W.2d 122 (1995). In Wiemer, the
defendant had voluntarily withdrawn his first postconviction
motion and the appellate court implicitly reasoned that because
the first motion for postconviction relief was no longer pend-
ing, the district court’s consideration of the defendant’s second
postconviction motion was proper. The present case stands in
contrast to Wiemer.
At the time Shelly filed the second postconviction motion,
the evidentiary hearing on the first motion was still pending
732 	279 NebrASkA repOrTS

and it was premature for Shelly to file a second motion.
because the evidentiary hearing regarding the first postconvic-
tion motion has not yet been held, there has not been a ruling
regarding whether counsel provided ineffective assistance by
not filing a direct appeal. Thus, it is conceivable that follow-
ing the evidentiary hearing in the first postconviction motion,
the district court could grant relief in the form of a new direct
appeal and that such appeal could encompass the claims Shelly
set forth in the second postconviction motion.
[2] As the district court correctly noted in its June 3, 2009,
order, consideration of the second postconviction motion was
outside the scope of the mandate from this court which was
limited to an evidentiary hearing on the one issue raised in the
first postconviction motion. After receiving a mandate, a trial
court is without power to affect the rights and duties outside
the scope of the remand from an appellate court. County of
Sarpy v. City of Gretna, 276 Neb. 520, 755 N.W.2d 376 (2008).
Therefore, the district court was correct in noting that it could
not consider the substance of Shelly’s second postconviction
motion as part of the remand regarding the first postconvic-
tion motion.
however, the district court’s ruling that the second postcon-
viction motion was procedurally barred was a ruling on the
merits of the second postconviction motion and was outside
the scope of the mandate. because consideration of the second
motion exceeded the mandate from this court and because it
was premature for Shelly to file a second motion before the
first motion had been resolved, the district court was without
jurisdiction to consider the second postconviction motion and
should have dismissed the second motion without prejudice
rather than ruling on it. We therefore vacate this portion of the
June 3, 2009, order. For completeness, we note that in its June
3 order, the district court contemplated an evidentiary hear-
ing on the direct appeal issue raised in the first postconviction
motion. Such evidentiary hearing has not yet been held and
should be held on remand from this appeal.
CONCLUSION
We conclude that Shelly’s second postconviction motion
was premature, because proceedings with regard to his first
STATe v. SheLLy 	733
Cite as 279 Neb. 728

postconviction motion were still pending and consideration of
the second postconviction motion was outside the scope of the
mandate on remand from the appeal of the denial of his first
postconviction motion. We vacate that portion of the district
court’s order overruling the second postconviction motion. We
remand the cause to the district court with directions to dismiss
the second postconviction motion without prejudice and to
forthwith conduct an evidentiary hearing on the first postcon-
viction motion in accordance with the mandate of this court in
case No. S-03-1045.
A ffirmed iN pArt, ANd iN pArt vAcAted
ANd remANded With directioNS.
StAte of NebrASkA, Appellee ,
v. irA leoN, AppellANt.
781 N.W.2d 608
Filed April 23, 2010. 	No. S-09-636.
1. DNA Testing: Appeal and Error. A motion for DNA testing is addressed to the
discretion of the trial court, and unless an abuse of discretion is shown, the trial
court’s determination will not be disturbed.
Appeal from the District Court for Lincoln County: doNAld
e. roWlANdS, Judge. Affirmed.
Tracy L. hightower-henne, of hightower Law, L.L.C., for
appellant.
Ira Leon, pro se.
Jon bruning, Attorney General, and erin e. Tangeman for
appellee.
heAvicAN, 	c.J., 	WriGht, 	coNNolly, 	G errArd, 	StephAN,
mccormAck , and miller-lermAN, JJ.
heAvicAN, c.J.
INTrODUCTION
Ira Leon was convicted of first degree murder, robbery, and
use of a weapon to commit a felony in 1992. On May 4, 2009,
734 	279 NebrASkA repOrTS