State v. York

State of NebraSka , appellee , v.
DariN C. York , appellaNt.
770 N.W.2d 614
Filed August 7, 2009. 	No. S-08-884.
1. Postconviction: Proof. One seeking postconviction relief has the burden of estab-
lishing a basis for such relief.
2. Moot Question: Jurisdiction: Appeal and Error. Mootness does not prevent
appellate jurisdiction. But, because mootness is a justiciability doctrine that
operates to prevent courts from exercising jurisdiction, appellate courts review
mootness determinations under the same standard of review as other jurisdic-
tional questions.
3. 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.
4. Postconviction. The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et
seq. (Reissue 2008), provides that postconviction relief is available to a prisoner
in custody under sentence who seeks to be released on the ground that there was
a denial or infringement of his constitutional rights such that the judgment was
void or voidable.
5. Postconviction: Convicted Sex Offender: Words and Phrases. An individ-
ual who is subject to the registration requirements under the Sex Offender
Registration Act, Neb. Rev. Stat. § 29-4001 et seq. (Reissue 2008), is not in
custody under sentence for purposes of the Nebraska Postconviction Act.
6. Convicted Sex Offender. The Sex Offender Registration Act applies to any per-
son who pleads guilty to or is found guilty of certain listed offenses, including
incest of a minor as defined by Neb. Rev. Stat. § 28-703 (Reissue 2008).
Appeal from the District Court for Morrill County: leo
D obrovolNY, Judge. Appeal dismissed.
Bell Island, of Island, Huff & Nichols, P.C., L.L.O., for
appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
H eaviCaN, 	C.J., 	WrigHt, 	C oNNollY, 	gerrarD, 	StepHaN,
MCC orMaCk, and M iller-lerMaN, JJ.
WrigHt, J.
NATURE OF CASE
Darin C. York pled guilty to incest pursuant to a plea agree-
ment in Morrill County District Court, and the court sentenced
306 	278 NEBRASkA REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

him to 4 to 6 years’ imprisonment. York filed a motion under
the Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et
seq. (Reissue 2008), alleging ineffective assistance of counsel,
but he was released from prison before this court heard oral
arguments. York claims that despite his release, he remains “in
custody under sentence.” See § 29-3001. York asserts that he
can still seek postconviction relief because he is required to reg-
ister as a sex offender for 10 years pursuant to Nebraska’s Sex
Offender Registration Act (SORA), Neb. Rev. Stat. § 29-4001
et seq. (Reissue 2008).
SCOPE OF REVIEW
[1] One seeking postconviction relief has the burden of
establishing a basis for such relief. State v. Thomas, 236 Neb.
553, 462 N.W.2d 862 (1990).
[2,3] Mootness does not prevent appellate jurisdiction. But,
because mootness is a justiciability doctrine that operates to
prevent courts from exercising jurisdiction, we have reviewed
mootness determinations under the same standard of review
as other jurisdictional questions. 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.
BryanLGH v. Nebraska Dept. of Health & Human Servs., 276
Neb. 596, 755 N.W.2d 807 (2008).
FACTS
On August 8, 2005, York pled guilty to one count of incest, a
Class III felony, pursuant to a plea agreement that his attorney
negotiated with the Morrill County Attorney. See Neb. Rev.
Stat. §§ 28-703 and 28-105 (Reissue 2008). The underlying
circumstances of the charge were that York had been having
sexual intercourse with his younger sister for several years.
York’s sister came forward with allegations of incest in
August 2003. She alleged that York had subjected her to incest
more than 50 times over a period of years beginning when she
was 7 or 8 years old and York was between 10 and 12 years
old. She alleged that the most recent incident occurred around
Thanksgiving of 2002. At that time, York was 18 and his sister
was 14.
STATE v. YORk 	307
Cite as 278 Neb. 306

After York was accused of this crime, York and his parents
retained attorney David Eubanks to represent York. By the time
he met with Eubanks, York had already confessed the sexual
assaults to his parents, fiance, and pastor. Eubanks advised
York to make a statement to the Nebraska State Patrol, which
York did. York admitted that he had sex with his sister, but
stated that they had sex approximately five times. He stated
that the incest began when he was 15 and she was 11 and that
the last incident occurred 4 days prior to his 17th birthday,
which would have been approximately March 16, 2001.
Eubanks negotiated a plea agreement with the Morrill County
Attorney, pursuant to which York agreed to cooperate with the
investigation and plead guilty to one count of incest based
on the alleged November 2002 incident. In return, the county
attorney would not file additional charges. Eubanks stated that
he advised York that probation was a possibility but not a guar-
antee. However, York alleges he believed that in exchange for
his plea, the prosecutor would remain silent during sentencing.
Based on his understanding of the agreement, York thought he
would receive a sentence of probation. Accordingly, in August
2005, York pled guilty to the November 2002 incident. The
district court accepted York’s plea and sentenced him to 4 to 6
years in prison.
York appealed, claiming an excessive sentence and inef-
fective assistance of counsel based on conflict of interest and
improper advice that he would receive probation if he pled
guilty. York’s conflict of interest claim was based on the fact
that while his criminal case was pending, Eubanks was also
representing York’s parents in a civil claim for damages aris-
ing from a car accident involving York’s sister. The appeal was
not successful.
York then filed a motion for postconviction relief, again
alleging ineffective assistance of counsel due to conflict of
interest and counsel’s promise that York would receive proba-
tion. He also claimed that his appellate counsel should have
raised the issue of Eubanks’ failing to object to a violation of
the plea agreement.
The district court denied York’s motion on July 22, 2008.
It 	noted 	that 	in 	light 	of York’s 	admissions, 	defenses 	of
308 	278 NEBRASkA REPORTS

nonoccurrence, alibi, or nature of the assault were not appro-
priate and his sister’s credibility was not at issue. The court
also determined that the evidence did not indicate Eubanks
promised York he would receive probation and that the record
did not support a finding that the final plea agreement con-
tained a provision requiring the prosecutor to remain silent
at sentencing. York filed a notice of appeal on August 14. On
September 11, he was discharged from prison. He was not
placed on parole.
This court heard oral arguments in the case at bar on March
31, 2009. At that time, neither party could inform the court as
to York’s custodial status, so the parties were ordered to advise
the court of York’s status. The State filed a written response
that York had been released from prison and was not on parole.
York informed the court that he is no longer incarcerated or on
parole, but that he is required to register as a sex offender pur-
suant to § 29-4003(1)(a)(vii) for a period of at least 10 years.
Based on that requirement, York claims he is still “under a sen-
tence” for purposes of the Nebraska Postconviction Act.
ASSIGNMENT OF ERROR
York assigns that the district court erred in denying his
request for postconviction relief.
ANALYSIS
[4] York alleges ineffective assistance of counsel because
Eubanks represented him in a criminal case while simul-
taneously representing York’s parents in a civil case on behalf
of his sister, who was his victim in the criminal case. We
do not reach the issue of ineffective assistance of counsel in
this case, because York does not have standing to seek post-
conviction relief. The Nebraska Postconviction Act provides
that postconviction relief is available to “[a] prisoner in custody
under sentence” who seeks to be released on the ground that
there was a denial or infringement of his constitutional rights
such that the judgment was void or voidable. See § 29-3001
(emphasis supplied). York has the burden of establishing a
basis for such relief. See State v. Thomas, 236 Neb. 553, 462
N.W.2d 862 (1990).
STATE v. YORk 	309
Cite as 278 Neb. 306

[5] The Nebraska Postconviction Act affords relief to pris-
oners who are in custody, on parole, or on probation in
Nebraska under a Nebraska sentence. See, State v. Costanzo,
242 Neb. 478, 495 N.W.2d 904 (1993); State v. Styskal, 242
Neb. 26, 493 N.W.2d 313 (1992); Thomas, supra; State v.
Harper, 233 Neb. 841, 448 N.W.2d 407 (1989). It is undis-
puted that York is not incarcerated, on parole, or on proba-
tion. York alleges, however, that he is required to register as
a sex offender pursuant to the SORA for at least 10 years. He
claims that this requirement renders him “in custody under
sentence” such that he should be permitted to seek relief
under the Nebraska Postconviction Act. See § 29-3001. We
conclude that an individual who is subject to the registration
requirements under the SORA is not “in custody under sen-
tence” for purposes of the Nebraska Postconviction Act. See
§ 29-3001.
[6] The SORA applies to any person who pleads guilty to
or is found guilty of certain listed offenses, including incest of
a minor as defined by § 28-703. See State v. Payan, 277 Neb.
663, 765 N.W.2d 192 (2009). The SORA includes a general
requirement that a person convicted of these listed offenses
must register with the sheriff of the county in which he or she
resides during any period of supervised release, probation, or
parole, “for a period of ten years after the date of discharge
from probation, parole, or supervised release or release from
incarceration, whichever date is most recent.” § 29-4005(1).
The sentencing court may identify certain sex offenders as
aggravated 	offenders 	who 	are 	subject 	to 	more 	restrictive
requirements; however, there is no evidence that the sentenc-
ing court made such findings regarding York, and we decline to
consider that scenario at this time. See, Payan, supra; State v.
Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).
We have held that because the SORA’s registration require-
ments arise solely and independently by the terms of the act
itself only after the defendant’s conviction, it is a collateral
consequence of the conviction. See, State v. Schneider, 263
Neb. 318, 640 N.W.2d 8 (2002); State v. Torres, 254 Neb. 91,
574 N.W.2d 153 (1998). Further, the restrictions SORA regis-
trants face are minimal compared to those faced by individuals
310 	278 NEBRASkA REPORTS

we have found to be “in custody” for purposes of postcon-
viction relief.
Parolees, for example, although not in the State’s physi-
cal custody, are still under the jurisdiction of the Nebraska
Board of Parole and face returning to prison if their parole is
revoked. See Thomas, supra. Conditions of parole may forbid
an individual from leaving a geographical area without permis-
sion, require that the individual remain employed, require the
individual to submit to medical or psychological treatment, or
forbid the individual from associating with certain persons.
See id. SORA registrants are not subject to such limitations.
Accordingly, York is no longer in custody in Nebraska under a
Nebraska sentence and his appeal is moot.
CONCLUSION
Postconviction relief is available only to a prisoner in actual
custody, on parole, or on probation in Nebraska under a
Nebraska sentence. Relief is not extended to individuals who
are no longer in custody but are subject to noncustodial regis-
tration requirements pursuant to the SORA. Because York is no
longer in custody in Nebraska under a Nebraska sentence, his
appeal is dismissed as moot.
appeal DiSMiSSeD.
CONNELLY v. CITY OF OMAHA 	311
Cite as 278 Neb. 311
kellY JeaN C oNNellY aND tiMotHY JaMeS C oNNellY,
Wife aND HuSbaND aND Natural guarDiaNS of
raCHel aND CHelSea C oNNellY, appelleeS,
v. C itY of oMaHa , appellaNt.
769 N.W.2d 394
Filed August 7, 2009. 	No. S-08-1011.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. ____: ____. Before reaching the legal issues presented for review, it is the duty
of an appellate court to settle jurisdictional issues presented by a case.
3. ____: ____. Notwithstanding whether the parties raise the issue of jurisdiction,
an appellate court has a duty to raise and determine the issue of jurisdiction
sua sponte.