Condoluci v. State

CONCLUSION
Because the county court did not abuse its discretion in
admitting the breath test result into evidence and did not err
in instructing the jury on a theory of DUI based on breath
test results, we affirm the district court’s judgment affirming
Rodriguez’ DUI conviction.
A ffirmed.
mAttieo A. C ondoluCi , AppellAnt, v.
StAte of nebrASkA, Appellee .
775 N.W.2d 196
Filed November 3, 2009. 	No. A-09-638.
1. Mental Health: Time. Neb. Rev. Stat. § 71-1207 (Cum. Supp. 2008) of the Sex
Offender Commitment Act requires service of a summons upon the subject which
fixes a time for the hearing before a mental health board within 7 calendar days
after the subject has been taken into emergency protective custody.
2. Habeas Corpus. Habeas corpus is a civil remedy constitutionally available in a
proceeding to challenge and test the legality of a person’s detention, imprison-
ment, or custodial deprivation of the person’s liberty.
3. ____. If a person is imprisoned or detained without any legal authority, upon
making the same appear to the judge, by oath or affirmation, it shall be the
judge’s duty to forthwith allow a writ of habeas corpus, directed to the proper
officer, person, or persons who detains such prisoner.
4. ____. The person to whom a writ of habeas corpus is directed makes response to
the writ, not to the petition. A respondent, in his answer to the writ, seeks simply
to justify his conduct and relieve himself from the imputation of having impris-
oned without lawful authority a person entitled to his liberty.
Appeal from the District Court for Sarpy County: WilliAm
b. 	ZASterA, 	Judge. 	Reversed 	and 	remanded 	for 	further
proceedings.
Mattieo A. Condoluci, pro se.
John W. Reisz, Deputy Sarpy County Attorney, for appellee.
SieverS and CASSel, Judges, and HAnnon, Judge, Retired.
SieverS, Judge.
According to his application for writ of habeas corpus filed
May 20, 2009, in the district court for Sarpy County, Mattieo
112 	18 NeBRASkA AppeLLATe RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

A. Condoluci was released on January 5, 2009, from the cus-
tody of the Nebraska Department of Correctional Services after
serving his sentence for sexually assaulting a child. He was,
however, immediately taken into custody by the Sarpy County
sheriff and incarcerated in the Sarpy County jail, where he
remained as of the time he filed the referenced application.
This custody occurred because of a petition filed by the Sarpy
County Attorney with the Sarpy County Mental Health Board
(the Board), a copy of which Condoluci attached to his appli-
cation. Such petition alleges that Condoluci is a dangerous
sex offender. The prayer of the petition asked the chair of the
Board to issue a warrant directing the sheriff to take custody
of Condoluci and hold him in the Sarpy County jail pending
further order of the Board.
[1] Condoluci’s application further alleges that to his knowl-
edge, “no court or chair of the . . . Board found probable cause
to believe that [he] is a dangerous sex offender as mandated
by Neb. Rev. Stat. § 71-1206(2).” He alleges that he has never
received a summons, which is a violation of his due process
rights under Neb. Rev. Stat. § 71-1207 (Cum. Supp. 2008).
He alleges that his rights under such statute have further been
violated because he has not received the hearing that must be
scheduled “within seven calendar days after the subject has
been taken into emergency protective custody.” See § 71-1207.
Condoluci alleges that because of the violations of his due proc-
ess rights as specified in his application, he is being unlawfully
detained in the Sarpy County jail. Thus, he requested the court
issue an order releasing him from custody and set an expedi-
tious hearing in the matter so that sufficient evidence may be
adduced to adjudicate the matter.
On May 28, 2009, the district court, apparently acting sua
sponte, entered the following order:
The Court having considered [Condoluci’s] applica-
tion for a Writ of Habeas Corpus hereby denies the same,
without hearing, for the following reasons:
1. A duly certified petition before the Board . . . was
filed and [Condoluci] was taken into custody pursuant
to an Order of Detention signed by the Chairperson of
the Board . . . .
CONDOLUCI v. STATe 	113
Cite as 18 Neb. App. 112

2. The Court notes a majority of the complaints of
the Application deal with procedural defects in his being
detained as a dangerous sex offender for which he has
an adequate remedy at law and for which Habeas Corpus
will not lie.
IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED by the Court that [Condoluci’s] Application
for a Writ of Habeas Corpus is denied and the application
is dismissed.
Because there was no hearing, there is obviously no bill of
exceptions; and although the district court relies on an “Order
of Detention signed by the Chairperson of the Board,” such is
not in our record. Given the district court’s recitation that no
hearing was held, we are forced to conclude that the district
court did not acquire knowledge of the purported “Order of
Detention” by a proper evidentiary process. At oral argument
upon Condoluci’s appeal from the quoted order, the deputy
Sarpy County Attorney conceded, after our questioning, that
we should remand the cause to the district court because of the
lack of a proper evidentiary hearing. While we do remand the
cause, we are not unconcerned by the county attorney’s failure
to promptly seek an order of remand in view of the district
court’s obvious error in deciding the case in reliance upon a
document not in evidence.
Additionally, Condoluci alleges in his application that he
has been held in the Sarpy County jail since January 5, 2009,
without service of summons. And he alleges that he has been
held without the benefit of a hearing before the Board, which
must be held within 7 days of when he was taken into emer-
gency protective custody under the Sex Offender Commitment
Act. Section 71-1207 of the act does require service of a
summons upon the subject which “fix[es] a time for the hear-
ing within seven calendar days after the subject has been
taken into emergency protective custody.” In short, that which
Condoluci asserts in order for his custody to be continued
is, in fact, provided for by statute. The district court’s order
makes no finding as to whether the required hearing has
been held.
114 	18 NeBRASkA AppeLLATe RepORTS

[2,3] Habeas corpus is a civil remedy constitutionally avail-
able in a proceeding to challenge and test the legality of a per-
son’s detention, imprisonment, or custodial deprivation of the
person’s liberty. See, U.S. Const. art. I, § 9; Neb. Const. art. I,
§ 8; In re Application of Tail, 144 Neb. 820, 14 N.W.2d 840
(1944). Our habeas statute, Neb. Rev. Stat. § 29-2801 (Reissue
2008), provides in pertinent part:
[I]f the person so imprisoned or detained is imprisoned
or detained without any legal authority, upon making the
same appear to such judge, by oath or affirmation, it shall
be his duty forthwith to allow a writ of habeas corpus,
which writ shall be issued forthwith by the clerk of the
district court, or by the county judge, as the case may
require, under the seal of the court whereof the person
allowing such writ is a judge, directed to the proper offi-
cer, person or persons who detains such prisoner.
[4] Condoluci’s application is under oath, and if the allega-
tions thereof are true, then his detention in the Sarpy County
jail is quite clearly “without any legal authority.” Accordingly,
the district court should issue the writ. The Supreme Court
explained in In re Application of Tail:
“[The writ of habeas corpus] may be analogized to a pro-
ceeding in rem, and is instituted for the sole purpose of
having the person restrained of his liberty produced before
the judge, in order that the cause of his detention may be
inquired into and his status fixed. The person to whom the
writ is directed makes response to the writ, not to the peti-
tion. . . . The respondent, in his answer to the writ, seeks
simply to justify his conduct and relieve himself from the
imputation of having imprisoned without lawful authority
a person entitled to his liberty. He comes to no issue with
the applicant for the writ. He answers the writ.”
144 Neb. at 822-23, 14 N.W.2d at 842 (quoting Simmons v.
Georgia Iron & Coal Co., 117 Ga. 305, 43 S.e. 780 (1903)).
Therefore, the district court erred in failing, given the facial
showing of an illegal detention in the sworn application, to
inquire into the cause of Condoluci’s detention by having those
detaining Condoluci answer the writ.
CONDOLUCI v. STATe 	115
Cite as 18 Neb. App. 112

CONCLUSION
We find the trial court erred in failing to issue the writ of
habeas corpus and in dismissing the application for such in
reliance upon matters not in evidence. We reverse the dismissal
and remand the cause for further proceedings, with directions
to the district court to issue the writ of habeas corpus and to
hold an evidentiary hearing thereupon in accordance with Neb.
Rev. Stat. §§ 29-2802 and 29-2805 (Reissue 2008).
reverSed And remAnded for
furtHer proCeedingS.
116 	18 NeBRASkA AppeLLATe RepORTS