State v. Bruckner ( 2014 )

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could be drawn as to whether Okoye knowingly provided
false or misleading information in his autopsy report. Because
the elements of a malicious prosecution action are difficult
to prove, “a plaintiff has a steep climb in prosecuting a mali-
cious prosecution action.”40 Nevertheless, appellees have not
demonstrated as a matter of law that McKinney will not make
that climb.
We reverse the district court’s order granting appellees sum-
mary judgment.
R eversed.
Heavican, C.J., and Stephan and Cassel, JJ., not participating.
40
McKinney v. Okoye, supra note 1, 282 Neb. at 887, 806 N.W.2d at 578.
State of Nebraska, appellee, v.
Cody M. Bruckner, appellant.
___ N.W.2d ___
Filed January 31, 2014. No. S-13-164.
1. Collateral Estoppel: Appeal and Error. The applicability of the doctrine of
collateral estoppel constitutes a question of law. With regard to such a question,
an appellate court is obligated to reach a conclusion independent from the lower
court’s conclusion.
2. Collateral Estoppel: Words and Phrases. “Collateral estoppel” means that
when an issue of ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties or their
privies in any future lawsuit.
3. Collateral Estoppel. There are four conditions that must exist for the doctrine
of collateral estoppel to apply: (1) The identical issue was decided in a prior
action, (2) there was a judgment on the merits which was final, (3) the party
against whom the rule is applied was a party or in privy with a party to the prior
action, and (4) there was an opportunity to fully and fairly litigate the issue in the
prior action.
4. Constitutional Law: Collateral Estoppel: Double Jeopardy. The doctrine of
collateral estoppel is embodied in the 5th Amendment guarantee against double
jeopardy and is applicable to the states through the 14th Amendment.
5. Collateral Estoppel: Double Jeopardy. The fact that collateral estoppel is
embodied in double jeopardy does not mean that it is coextensive with the protec-
tions of double jeopardy.
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STATE v. BRUCKNER 281
Cite as 287 Neb. 2806. Collateral Estoppel: Prior Convictions: Sentences. Collateral estoppel does not
apply in the context of whether a defendant’s prior conviction may be used for
purposes of sentence enhancement.
Appeal from the District Court for Sarpy County: Max
K elch, Judge. Affirmed.
John P. Grant, of Grant Law Offices, P.C., for appellant.
Jon Bruning, Attorney General, Erin E. Tangeman, George
R. Love, and Joel R. Rische, Senior Certified Law Student,
for appellee.
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ.
Stephan, J.
Cody M. Bruckner appeals from an order finding him
guilty of fourth-offense driving under the influence (DUI), a
Class IIIA felony. The principal issue on appeal is whether the
trial court erred in holding that the doctrine of collateral estop-
pel did not bar the use of two prior convictions for the pur-
pose of sentence enhancement. Although our reasoning differs
somewhat from that of the district court, we affirm.
BACKGROUND
As a result of an incident which occurred on July 6, 2012,
Bruckner was charged with DUI. In the operative charging
information, the State alleged that the DUI should be punished
as a fourth offense because Bruckner had previously been
convicted of DUI on April 17, 2003; October 15, 2001; and
September 17, 1999.
Immediately after Bruckner pled guilty to the 2012 DUI
charge, the court conducted a sentence enhancement hearing
and received three exhibits offered by the State. Exhibit 1 was
a certified copy of Bruckner’s April 17, 2003, DUI conviction.
The exhibit shows that Bruckner was charged on October 3,
2002, with third-offense DUI. The exhibit contains the charg-
ing information, which alleged two prior convictions as the
basis for the third-offense charge: September 17, 1999, and
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282 287 NEBRASKA REPORTS
October 15, 2001. The exhibit shows that Bruckner pled no
contest to the 2002 DUI charge and that a sentence enhance-
ment hearing was held. No transcription of the sentencing
hearing is included in the exhibit, but it demonstrates that
two exhibits identified as “Exhibit[s] 2 & 3” were offered and
received at the enhancement hearing. It further demonstrates
that the court found Bruckner guilty of a first-offense DUI
in 2003.
Exhibit 2 offered by the State is a certified record of
Bruckner’s September 17, 1999, conviction for DUI,
and exhibit 3 offered by the State is a certified record of
Bruckner’s October 15, 2001, conviction for DUI. During
the enhancement hearing in the instant case, Bruckner argued
that the 1999 and 2001 convictions were the same convic-
tions referred to in the record of the 2003 enhancement
hearing and that because those convictions did not result
in enhancement of the 2003 charge, the State was collater-
ally estopped from using them for enhancement of the 2012
charge. Noting that our decision in State v. Gerdes1 “never
directly determined” whether collateral estoppel applied in
a sentence enhancement proceeding, the district court con-
cluded that even if it did, the record was insufficient to apply
the doctrine in this case. The court stated that without know-
ing the reason the 1999 and 2001 convictions were not used
for enhancement of the 2003 offense, it could not conclude
that there was a prior adjudication which would form the
basis of collateral estoppel.
After he was sentenced for fourth-offense DUI, Bruckner
perfected this timely appeal, which we moved to our docket on
our motion pursuant to our statutory authority to regulate the
caseloads of the appellate courts of this state.2
ASSIGNMENT OF ERROR
Bruckner assigns that the district court erred in enhancing
the sentence for his 2012 DUI conviction as a fourth offense.
1
State v. Gerdes, 233 Neb. 528, 446 N.W.2d 224 (1989).
2
See, Neb. Rev. Stat. § 24-1106(3) (Reissue 2008); Neb. Ct. R. App. P.
§ 2-102(C) (rev. 2012).
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STATE v. BRUCKNER 283
Cite as 287 Neb. 280STANDARD OF REVIEW
[1] The applicability of the doctrine of collateral estoppel
constitutes a question of law.3 With regard to such a question,
an appellate court is obligated to reach a conclusion indepen-
dent from the lower court’s conclusion.4
ANALYSIS
[2,3] “Collateral estoppel” means that when an issue of
ultimate fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the
same parties or their privies in any future lawsuit.5 There are
four conditions that must exist for the doctrine of collateral
estoppel to apply: (1) The identical issue was decided in a
prior action, (2) there was a judgment on the merits which
was final, (3) the party against whom the rule is applied
was a party or in privy with a party to the prior action, and
(4) there was an opportunity to fully and fairly litigate the
issue in the prior action.6 Bruckner contends that the issue
of whether his 1999 and 2001 convictions could be used for
enhancement was decided against the State in his 2003 case
and that the State is therefore collaterally estopped from
relitigating in this case whether those convictions can be used
for enhancement.
A threshold issue of law is whether the doctrine of collateral
estoppel applies to a sentence enhancement proceeding in a
criminal case. As the district court noted, our jurisprudence on
this point is not entirely clear. In State v. Gerdes,7 a defendant
convicted of DUI contended that collateral estoppel barred
records of his two prior DUI convictions from being used for
sentence enhancement purposes. After discussing the general
parameters of collateral estoppel, we held that
3
State v. McCarthy, 284 Neb. 572, 822 N.W.2d 386 (2012).
4
Id.5
Id.; State v. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994), overruled in
part on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31(1998).
6
Id.7
State v. Gerdes, supra note 1.
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[a] criminal defendant, relying on collateral estoppel in
relation to constitutional protection against double jeop-
ardy in a present proceeding, has the burden to prove that
the particular issue which is sought to be relitigated, but
which is constitutionally foreclosed by the double jeop-
ardy clause, was necessarily or actually determined in a
previously concluded criminal proceeding.8
We concluded that the defendant had not met this burden,
because he did not prove that there had been prior adjudica-
tions of the specific issue of whether his prior convictions
could be used for enhancement. While the applicability of col-
lateral estoppel to enhancement proceedings may have been
implicit in Gerdes, our opinion did not reach the issue directly.
Citing Gerdes, the Nebraska Court of Appeals applied similar
reasoning in State v. Solomon.9
Recently in State v. McCarthy,10 we rejected a claim that
collateral estoppel barred the use of two prior shoplifting
convictions to enhance a subsequent offense. Because both
of the prior convictions were treated as first offenses, the
defendant argued that her conviction for third offense should
have been treated as only a second offense. Rejecting this
argument, we held that both prior convictions could be used
for a third-offense enhancement, because the law did not
require progressive convictions for first- and second-offense
shoplifting in order to enhance a third conviction to a third
offense. Our opinion in McCarthy did not address the broader
question of whether collateral estoppel could ever apply in
a sentence enhancement proceeding. We address that ques-
tion now.
[4] The doctrine of collateral estoppel is embodied in the
5th Amendment guarantee against double jeopardy and is
applicable to the states through the 14th Amendment.11 We
8
Id. at 531, 446 N.W.2d at 227, citing U.S. v. Ragins, 840 F.2d 1184 (4th
Cir. 1988). See, also, U.S. v. Gentile, 816 F.2d 1157 (7th Cir. 1987).
9
State v. Solomon, 16 Neb. App. 368, 744 N.W.2d 475 (2008).
10
State v. McCarthy, supra note 3.
11
See Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469(1970).
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STATE v. BRUCKNER 285
Cite as 287 Neb. 280considered the interplay between double jeopardy and col-
lateral estoppel in the criminal context in State v. Young.12 In
that case, a defend­ nt was charged with DUI and, based on
a
the same conduct, had his driver’s license administratively
revoked. At a hearing on the administrative revocation, he
successfully persuaded the director of the Department of
Motor Vehicles that he had not been operating his vehicle
at the time he was intoxicated, and his license was restored.
During his criminal trial for DUI, the defendant alleged the
director’s administrative finding that he had not been oper-
ating the vehicle while intoxicated collaterally estopped the
State from attempting to prove otherwise. We rejected this
argument, reasoning in part that administrative revocation
proceedings do not involve punishment implicating double
jeopardy principles, and that “[t]he absence of double jeop-
ardy exposure forecloses the application of collateral estoppel
against the State . . . .”13
Both the U.S. Supreme Court and this court have held that
double jeopardy principles do not bar a retrial on a prior con-
viction allegation in the noncapital sentencing context where
the initial evidence is found to be insufficient.14 In State v.
Oceguera,15 we agreed that the State failed to present sufficient
evidence of three valid prior DUI convictions to support a con-
viction for fourth offense, but we remanded for a new enhance-
ment hearing after concluding that the failure of proof did not
trigger double jeopardy protections.
[5] A literal application of the language we used in Young
would lead to the conclusion that because double jeopardy
does not bar retrial on the prior conviction allegations, neither
does collateral estoppel. But our categorical statement in Young
may have been imprecise. Most other state and federal courts
hold that although collateral estoppel is embodied in the double
jeopardy clause, it is actually a separate claim that mandates
12
State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996).
13
Id. at 543, 544 N.W.2d at 812.
14
Monge v. California, 524 U.S. 721, 118 S. Ct. 2246, 141 L. Ed. 2d 615(1998); State v. Oceguera, 281 Neb. 717, 798 N.W.2d 392 (2011).
15
State v. Oceguera, supra note 14.
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a separate analysis, and applies in criminal proceedings inde-
pendent of double jeopardy principles.16 As the U.S. Court of
Appeals for the Seventh Circuit explained in U.S. v. Bailin,17
the fact that collateral estoppel is embodied in double jeopardy
does not mean that it is coextensive with the protections of
double jeopardy. Indeed, a “criminal defendant has no need
for the benefits of [collateral estoppel] if his entire prosecution
is barred by double jeopardy.”18 Thus, collateral estoppel can
be applicable in criminal cases even when double jeopardy is
not.19 As the Bailin court noted, a better statement of the rule
should be that collateral estoppel is a “‘component’” of the
double jeopardy clause.20
The question before us is whether collateral estoppel should
apply in the context of a prior conviction sentencing enhance-
ment proceeding despite the fact that double jeopardy does
not. To answer that question, we look to other jurisdictions
for guidance. Some jurisdictions have limited the application
of collateral estoppel in criminal cases to prior determina-
tions of fact which relate directly to criminal liability21 or
are essential to a claim or defense.22 We note that, so limited,
collateral estoppel would not apply to a sentence enhance-
ment proceeding.
Other jurisdictions have identified specific public policy
reasons why collateral estoppel should not apply in sen-
tence enhancement proceedings. For example, in People v.
Barragan,23 the California Supreme Court considered an issue
16
See, U.S. v. Hall, 551 F.3d 257 (4th Cir. 2009); U.S. v. Bailin, 977 F.2d
270 (7th Cir. 1992); People v. Barragan, 32 Cal. 4th 236, 83 P.3d 480, 9
Cal. Rptr. 3d 76 (2004); State v. Butler, 505 N.W.2d 806 (Iowa 1993). See,
also, 50 C.J.S. Judgments § 1217 (2009).
17
U.S. v. Bailin, supra note 16.
18
Id. at 275.
19
Id.20
Id. at 276 n.8.
21
State v. Taylor, 103 So. 3d 571 (La. App. 2012).
22
State v. Eggleston, 164 Wash. 2d 61, 187 P.3d 233 (2008).
23
People v. Barragan, supra note 16, 32 Cal. 4th at 239, 83 P.3d at 482, 9
Cal. Rptr. 3d at 79.
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STATE v. BRUCKNER 287
Cite as 287 Neb. 280arising under California’s “Three Strikes” law, which pre-
scribes an increased punishment for a felony if the defend­ nta
has one or more prior qualifying felony convictions, known
as strikes. A finding that the defendant had one “strike” was
reversed on appeal for insufficient evidence, and the question
was whether he could be retried on that issue. The court held
that he could, rejecting the defendant’s claim that retrial was
barred under various theories, including collateral estoppel.
The court determined that under California law, the initial
determination was never final. And it specifically noted that
even if the finality requirement were met, “‘the public policies
underlying collateral estoppel—preservation of the integrity
of the judicial system, promotion of judicial economy, and
protection of litigants from harassment by vexatious litiga-
tion—strongly influence whether its application in a particular
circumstance would be fair to the parties and constitutes sound
judicial policy.’”24
The court in Barragan reasoned that permitting retrial on the
issue of a prior conviction would not undermine the integrity
of the judicial system, but applying collateral estoppel to pre-
vent retrial of this issue would undermine public confidence in
the ability of the system to apply statutes prescribing increased
punishment for repeat offenders. The court concluded that
allowing the State another opportunity to show the convic-
tions is “‘not unfair’” but will actually “‘enhance the accuracy
of the proceeding.’”25 The court also noted that retrial would
not subject the defendant to harassment, because the public
had a legitimate interest in making sure defendants will not,
“‘through technical defects in . . . proof,’” escape statutorily
prescribed increased punishments.26
Similarly, in Williams v. New York,27 a court declined to
apply collateral estoppel to bar use of prior convictions for
24
Id. at 256, 83 P.3d at 495, 9 Cal. Rptr. 3d at 93.
25
Id. at 257, 83 P.3d at 495, 9 Cal. Rptr. 3d at 94, quoting Caspari v. Bohlen,
510 U.S. 383, 114 S. Ct. 948, 127 L. Ed. 2d 236 (1994).
26
Id. at 257, 83 P.3d at 496, 9 Cal. Rptr. 3d at 95, quoting People v. Morton,
41 Cal. 2d 536, 261 P.2d 523 (1953).
27
Williams v. New York, 367 F. Supp. 2d 449 (W.D.N.Y. 2005).
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enhancement purposes. The court noted that collateral estoppel
“‘is less liberally applied in criminal cases than in civil actions,
because “considerations peculiar to the criminal process may
outweigh the need to avoid repetitive litigation.”’”28 The court
reasoned that because criminal cases involve issues of public
safety and the rights of individual defendants, “concern with
reaching the correct result inevitably must outweigh the effi-
ciency concerns that might otherwise favor application of the
collateral estoppel doctrine.”29
Although each of these cases involved factual contexts
slightly different from the present case, we conclude that the
public policy considerations they discuss are persuasive rea-
sons not to apply collateral estoppel in the context of determin-
ing whether prior convictions can be used to enhance the clas-
sification of or sentence imposed on a subsequent conviction.
Unlike many issues of fact in criminal cases, the existence of a
prior conviction is usually not a matter of genuine dispute. As
the U.S. Supreme Court has observed, “[p]ersistent-offender
status is a fact objectively ascertainable on the basis of readily
available evidence. Either a defendant has the requisite number
of prior convictions, or he does not.”30
[6] The fact that a prior conviction was not used for
enhancement in a prior proceeding should not be a bar to its
use in a subsequent enhancement proceeding if, as is the case
here, the conviction fits within the statutory enhancement
scheme. This is hardly unfair to the defendant who has already
committed the crime and is on notice that the conviction may
affect the severity of punishment for a subsequent offense.
Application of the doctrine of collateral estoppel to produce a
contrary result would undermine both the truth-seeking func-
tion of the criminal justice system and public confidence in
the ability of courts to punish repeat offenders in the manner
which the Legislature has prescribed. We therefore hold that
collateral estoppel does not apply in the context of whether a
28
Id. at 458, quoting Pinkney v. Keane, 920 F.2d 1090 (2d Cir. 1990) (citing
People v. Plevy, 52 N.Y.2d 58, 417 N.E.2d 518, 436 N.Y.S.2d 224 (1980)).
29
Williams v. New York, supra note 27, 367 F. Supp. 2d at 458.
30
Caspari v. Bohlen, supra note 25, 510 U.S. at 396.
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STATE v. BRUCKNER 289
Cite as 287 Neb. 280defendant’s prior conviction may be used for purposes of sen-
tence enhancement.
Thus, although our reasoning differs somewhat from that of
the district court, we agree with its conclusion that collateral
estoppel did not bar the use of Bruckner’s 1999 and 2001 DUI
convictions as two of the three prior convictions necessary to
enhance his 2012 conviction to fourth offense.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
Affirmed.
Wright, J., participating on briefs.