State v. Jensen ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/20/2018 09:11 AM CDT
- 791 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. JENSEN
Cite as 299 Neb. 791
State of Nebraska, appellee, v.
Victor Jensen, appellant.
___ N.W.2d ___
Filed April 26, 2018. No. S-17-835.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
2. Courts: Judgments: Appeal and Error. Both the district court and a
higher appellate court generally review appeals from the county court
for error appearing on the record. When reviewing a judgment for
errors appearing on the record, an appellate court’s inquiry is whether
the decision conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable. But an appel-
late court independently reviews questions of law in appeals from the
county court.
3. Records: Appeal and Error. An appellant has the responsibility to
present a record that permits appellate review of the issue assigned
as error.
Appeal from the District Court for Burt County, John E.
Samson, Judge, on appeal thereto from the County Court for
Burt County, C. M atthew Samuelson, Judge. Judgment of
District Court affirmed.
Victor Jensen, pro se.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Miller-Lerman, Cassel, Stacy, and Funke, JJ., and H arder
and Noakes, District Judges.
- 792 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. JENSEN
Cite as 299 Neb. 791
Cassel, J.
INTRODUCTION
Victor Jensen had been allowed to proceed in forma pau-
peris (IFP) at various times throughout the pendency of his
criminal case, which commenced in 2011. In 2016, he sought
to have the county “pay” or waive his probation fees and court
costs. The county court denied the request, and the district
court affirmed. Because Jensen did not present evidence as to
his financial condition at the time of the hearing on his motion
and the record is inadequate to show that the county court
erred in not waiving the court costs, we affirm the district
court’s decision.
BACKGROUND
Proceedings in County Court
In 2014, the county court convicted Jensen of certain crimes.
It imposed a jail sentence, ordered Jensen to pay $3,000 in
fines and $39.85 in costs, sentenced him to 24 months’ pro-
bation, and ordered him to pay $600 in probation fees. After
Jensen’s appeals were resolved and jurisdiction returned to
the county court, Jensen apparently filed a motion on May
25, 2016, seeking payment of four items, including probation
fees and court costs. This motion is not in our record, but it is
referred to in a county court order.
On December 20, 2016, and January 24, 2017, the county
court evidently held hearings. Our bill of exceptions does not
contain a verbatim transcription of those hearings; instead,
it includes exhibits offered at the December 2016 hearing.
According to a subsequent order of the county court, it received
the exhibits. Many of the exhibits were poverty affidavits and
filings to proceed IFP at various times during the pendency of
the case and appeals therefrom. The evidence contained a July
2012 financial affidavit and order permitting Jensen to proceed
IFP and directing that costs not already paid as of that date be
paid by the county. It contained a January 2013 affidavit of
poverty and order sustaining Jensen’s motion to appeal IFP to
- 793 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. JENSEN
Cite as 299 Neb. 791
this court. The evidence also contained an August 2014 pov-
erty affidavit and order by the county court allowing Jensen to
prosecute an appeal IFP to the district court. And the evidence
reflects that a February 2015 order granted Jensen’s request to
proceed IFP on appeal.
On January 24, 2017, the county court entered a journal
entry and order concerning the motion for fees. As relevant to
this appeal, the court denied Jensen’s requests for a $600 pay-
ment for probation fees. The court also denied Jensen’s request
for $39.85 in court costs, stating that the court “believes this
amount was not included in the District Court’s Order to pro-
ceed [IFP].”
Proceedings in District Court
Jensen appealed to the district court. In a statement of errors,
he claimed that the county court erred by denying “waver/
payment of probation fees” and by not “wavering/paying all
court costs.”
During a hearing on Jensen’s appeal, Jensen directed the
court to a 2012 order granting his affidavit and application to
proceed IFP. The court observed that the order and financial
affidavit predated the county court order at issue by 41⁄2 years.
The court inquired whether there was any evidence “more
current that would show [Jensen was] still indigent back in
January of 2017.” Jensen confirmed that there was no new
financial affidavit at the time of that hearing. The district court
affirmed the county court’s order.
Jensen filed a timely appeal, and we moved the case to
our docket.1
ASSIGNMENTS OF ERROR
Jensen assigns that the district court erred in (1) using
January 24, 2017, to determine his indigency; (2) not find-
ing him to be indigent; (3) finding insufficient evidence to
1
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
- 794 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. JENSEN
Cite as 299 Neb. 791
require the county to pay his probation fees; and (4) finding
insufficient evidence to require the county to waive or pay his
court costs.
STANDARD OF REVIEW
[1] In an appeal of a criminal case from the county court, the
district court acts as an intermediate court of appeals, and its
review is limited to an examination of the record for error or
abuse of discretion.2
[2] Both the district court and a higher appellate court gen-
erally review appeals from the county court for error appearing
on the record. When reviewing a judgment for errors appear-
ing on the record, an appellate court’s inquiry is whether the
decision conforms to the law, is supported by competent evi-
dence, and is neither arbitrary, capricious, nor unreasonable.
But an appellate court independently reviews questions of law
in appeals from the county court.3
ANALYSIS
Jensen argues that the district court erred in using the date
of January 24, 2017, to determine whether he was indigent and
in finding that he was not indigent. Jensen mischaracterizes
the district court’s actions.
The district court, acting as an intermediate court of appeal,
was limited in its review to an examination of the record for
error or abuse of discretion.4 Thus, it was compelled to review
the record before the county court at the time of its January
24, 2017, order to determine whether the county court erred
in denying Jensen’s request for waiver of probation fees and
costs. The district court made no finding that indigency was
determined on that date or that Jensen was not indigent.
Instead, the district court affirmed the county court’s order
concerning probation fees and court costs.
2
State v. Todd, 296 Neb. 424, 894 N.W.2d 255 (2017).
3
Id.
4
See id.
- 795 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. JENSEN
Cite as 299 Neb. 791
Jensen’s brief directs us to two statutes, but they have
not gone into effect. He argues that under Neb. Rev. Stat.
§§ 29-2206 and 29-2208 (Supp. 2017), a sentencing judge
does not need a separate hearing to determine indigency. But
because those statutes have an operative date of July 1, 2019,
they have no application here.
[3] Jensen failed to produce evidence to show indigency at
the time his request was heard. An appellant has the responsi-
bility to present a record that permits appellate review of the
issue assigned as error.5 Although Jensen produced financial
affidavits and orders allowing him to proceed IFP at vari-
ous times between 2012 and 2015, he supplied no evidence
to show his financial condition at the time of the hearings in
December 2016 and January 2017. It is Jensen’s financial con-
dition at the time his request was heard that is of importance.
If, for instance, Jensen had recently become a millionaire, it
would be preposterous to suggest that he should be excused
from paying probation fees because he earlier had been a
pauper. We note that our own court rule requires an applica-
tion to proceed IFP and accompanying poverty affidavit to be
executed no more than 45 days prior to the filing of the notice
of appeal.6 The stale financial affidavits and earlier orders
allowing Jensen to proceed IFP are inadequate to show his
financial condition at the time of the hearings.
For much the same reason, Jensen failed to demonstrate
that his probation fee should be waived. Neb. Rev. Stat.
§ 29-2262.06(4) (Reissue 2016) states:
The court shall waive payment of the monthly probation
programming fees in whole or in part if after a hearing
a determination is made that such payment would con-
stitute an undue hardship on the offender due to limited
income, employment or school status, or physical or men-
tal handicap. Such waiver shall be in effect only during
5
See State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017).
6
See Neb. Ct. R. App. P. § 2-101(B)(4) (rev. 2015).
- 796 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. JENSEN
Cite as 299 Neb. 791
the period of time that the probationer or participant in a
non-probation-based program or service is unable to pay
his or her monthly probation programming fee.
But the record before us contains no evidence that payment
of the monthly probation fee would constitute an undue hard-
ship on Jensen. Evidence that courts had previously allowed
Jensen to proceed IFP simply has no bearing on whether he
was unable to pay a monthly probation fee in January 2017.
The inadequate record also dooms Jensen’s claim regarding
court costs. He argues that because he had been allowed to
proceed IFP, the county should pay or waive the court costs of
$39.85. The parties agree that there is nothing to identify the
costs. An order contains a notation of $31 for “Court Costs”
and $8.85 for “Other.” In denying Jensen’s request, the county
court stated that it believed those costs were not included in
the district court’s order to proceed IFP. Jensen has failed to
present a record to demonstrate that the county court’s conclu-
sion was erroneous. Accordingly, the district court did not err
in affirming the county court’s order.
CONCLUSION
Because the record fails to demonstrate that payment of the
monthly probation fee would constitute an undue hardship on
Jensen or that the county should pay or waive $39.85 in court
costs, the district court did not err in affirming the county
court’s denial of Jensen’s requests to waive probation fees
and court costs. We therefore affirm the district court’s order
affirming the order of the county court.
A ffirmed.
Heavican, C.J., not participating.