State v. Ratumaimuri ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    07/20/2018 09:10 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. RATUMAIMURI
    Cite as 
    299 Neb. 887
    State of Nebraska, appellee, v.
    A ntonio D. R atumaimuri, appellant.
    ___ N.W.2d ___
    Filed May 11, 2018.     No. S-17-187.
    1.	 Convicted Sex Offender: Proof. Under Neb. Rev. Stat. § 29-4011(1)
    (Reissue 2016), the State must prove that the defendant (1) is required
    to register under the Sex Offender Registration Act, Neb. Rev. Stat.
    § 29-4001 et seq. (Reissue 2016), and (2) violated a section of the act.
    2.	 Convicted Sex Offender. Under Neb. Rev. Stat. § 29-4003(1)(b)(i)(B)
    (Reissue 2016), a trial court must determine whether a defendant who
    has committed one of the offenses listed therein is subject to the Sex
    Offender Registration Act, Neb. Rev. Stat. § 29-4001 et seq. (Reissue
    2016), during the proceedings on the underlying conviction and
    sentence.
    3.	 Judgments: Words and Phrases. A judgment is an adjudication of
    all the matters that are essential to support it, and every proposition
    assumed or decided by the court leading up to the final conclusion and
    on which such conclusion is based is as effectually passed upon as the
    ultimate question which is finally resolved.
    4.	 Criminal Law: Judgments: Sentences: Appeal and Error. In a
    criminal case, the judgment from which the appellant may appeal is
    the sentence.
    5.	 Convicted Sex Offender: Appeal and Error. Whether a defendant is
    subject to the Sex Offender Registration Act, Neb. Rev. Stat. § 29-4001
    et seq. (Reissue 2016), based on a guilty plea or conviction for an
    offense that is not inherently sexual must be reviewed on direct appeal
    from the underlying conviction and sentence.
    6.	 Judgments: Collateral Attack. When a judgment is attacked in a
    way other than by proceeding in the original action to have it vacated,
    reversed, or modified, or by a proceeding in equity to prevent its
    enforcement, the attack is a collateral attack.
    7.	 ____: ____. A judgment that is not void, even if erroneous, cannot be
    collaterally attacked.
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. RATUMAIMURI
    Cite as 
    299 Neb. 887
    8.	 Convicted Sex Offender: Collateral Attack: Appeal and Error. A
    challenge to a determination that the Sex Offender Registration Act,
    Neb. Rev. Stat. § 29-4001 et seq. (Reissue 2016), applies to a defendant
    for a listed offense that is not inherently sexual outside of a direct appeal
    from the underlying conviction and sentence is an impermissible collat-
    eral attack.
    9.	 Courts: Judgments: Appeal and Error. Upon further review from
    a judgment of the Nebraska Court of Appeals, the Nebraska Supreme
    Court will not reverse a judgment which it deems to be correct sim-
    ply because its reasoning differs from that employed by the Court
    of Appeals.
    Petition for further review from the Court of Appeals, Pirtle,
    R iedmann, and A rterburn, Judges, on appeal thereto from the
    District Court for Lancaster County, Susan I. Strong, Judge.
    Judgment of Court of Appeals affirmed.
    Joseph D. Nigro, Lancaster County Public Defender, and
    Nathan J. Sohriakoff for appellant.
    Douglas J. Peterson, Attorney General, and Joe Meyer for
    appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
    JJ., and Derr and Urbom, District Judges.
    Funke, J.
    The Lancaster County District Court convicted Antonio Y.
    Ratumaimuri of violating the registration requirements of the
    Sex Offender Registration Act (SORA).1 Before the Nebraska
    Court of Appeals, Ratumaimuri assigned as error that there was
    insufficient evidence to support his conviction. Specifically, he
    argued the State had failed to prove he was subject to SORA’s
    requirements, because it failed to present evidence that—dur-
    ing the proceedings for a previous conviction and sentence—
    the county court for Lancaster County had made a factual find-
    ing pursuant to § 29-4003(1)(b)(i)(B).
    1
    See Neb. Rev. Stat. § 29-4001 et seq. (Reissue 2016).
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. RATUMAIMURI
    Cite as 
    299 Neb. 887
    The Court of Appeals affirmed Ratumaimuri’s conviction
    on the sufficiency of the evidence. However, rather than rely-
    ing on the determination in the previous proceedings—that
    Ratumaimuri was subject to SORA—alone, the Court of Appeals
    concluded that determination was valid because it was based on
    an implied factual finding pursuant to § 29-4003(1)(b)(i)(B).
    On further review, we hold that (1) a determination that
    a defendant is subject to SORA must be reviewed on direct
    appeal from the underlying conviction and sentence and (2)
    such a determination is not subject to an impermissible collat-
    eral attack in subsequent proceedings. Accordingly, the Court
    of Appeals erred in analyzing whether the determination in
    the previous proceedings was valid. While our reasoning dif-
    fers from that employed by the Court of Appeals, our ultimate
    conclusion on the judgment is the same. Therefore, we affirm.
    BACKGROUND
    In November 2015, a police officer found Ratumaimuri
    sleeping in a parking garage in Lincoln, Nebraska. The officer
    determined Ratumaimuri was a registered sex offender but had
    not updated his address since July 2015, when he was incarcer-
    ated. Ratumaimuri admitted he had been transient since he was
    released from prison, in September 2015, and was in viola-
    tion of his SORA requirements because he had not registered
    with the Lancaster County Sheriff’s Department. The officer
    arrested Ratumaimuri for violating SORA by failing to update
    his address or status.
    The offense that subjected Ratumaimuri to SORA’s require-
    ments was a 2014 conviction for third degree assault. The
    State had amended the charge from third degree sexual assault
    in exchange for Ratumaimuri’s agreeing to plead no contest.
    The State informed Ratumaimuri, however, that the county
    court could still determine he was subject to SORA, under
    the plea bargain. At the plea hearing, the county court ruled
    that Ratumaimuri was subject to SORA’s requirements and
    that he had committed a “sexual offense.” Ratumaimuri was
    provided with a “Notification of Registration Responsibilities
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    STATE v. RATUMAIMURI
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    299 Neb. 887
    Under [SORA]” form, which stated: “Your conviction or
    guilty plea has caused you to be subject to [SORA].” At the
    sentencing hearing, the county court questioned Ratumaimuri
    about whether he had read and signed the notification form
    and whether he understood his responsibilities as a sex
    offender. Ratumaimuri did not appeal from that conviction
    or sentence.
    In the current proceedings, Ratumaimuri was charged with
    violating SORA’s registration requirements, under § 29-4011(1).
    The State offered into evidence the record from his third degree
    assault conviction, which contained the determination that he
    was subject to SORA. After a stipulated bench trial, the district
    court found Ratumaimuri guilty and sentenced him to 12 to 18
    months’ imprisonment. Ratumaimuri filed a timely appeal.
    On appeal, Ratumaimuri assigned the district court erred in
    convicting him, because there was not sufficient evidence to
    prove his guilt. He argued the State failed to prove his previ-
    ous conviction subjected him to SORA’s requirements, because
    there was no factual finding under § 29-4003(1)(b)(i)(B) that
    the crime involved either “sexual penetration” or “sexual con-
    tact.” The State argued Ratumaimuri’s appeal itself was an
    impermissible collateral attack on his previous conviction
    and sentence.
    The Court of Appeals determined that Ratumaimuri’s
    appeal, regarding the sufficiency of the evidence, was not
    a collateral attack and affirmed Ratumaimuri’s conviction,
    because the evidence was sufficient to prove Ratumaimuri
    was subject to SORA.2 In reaching its conclusion on the suf-
    ficiency of the evidence, the Court of Appeals analyzed the
    determination of SORA’s application to Ratumaimuri in the
    prior proceedings and concluded it was valid because the
    county court had made an implied finding of fact pursuant to
    § 29-4003(1)(b)(i)(B).3
    2
    State v. Ratumaimuri, No. A-17-187, 
    2017 WL 5713404
    (Neb. App. Nov.
    28, 2017) (selected for posting to court website).
    3
    
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. RATUMAIMURI
    Cite as 
    299 Neb. 887
    Both Ratumaimuri and the State petitioned for further
    review. We denied Ratumaimuri’s petition, which assigned
    error to the Court of Appeals’ holding that sufficient evidence
    supported his conviction. We granted the State’s petition.
    ASSIGNMENT OF ERROR
    The State assigns, restated, that the Court of Appeals erred
    in concluding Ratumaimuri’s appeal was not an impermissible
    collateral attack on a previous judgment.
    ANALYSIS
    [1] Section 29-4011(1) provides: “Any person required to
    register under [SORA] who violates the act is guilty of a Class
    IIIA felony.” Accordingly, for a conviction under § 29-4011(1),
    the State is required to prove that the defendant (1) is required
    to register under SORA and (2) violated a section of SORA.
    Ratumaimuri did not argue on appeal that he did not violate a
    section of SORA, so only the sufficiency of evidence regard-
    ing whether he was required to register under SORA was
    at issue.
    In reviewing a criminal conviction for a sufficiency of the
    evidence claim, the relevant question for an appellate court is
    whether, after viewing the evidence in the light most favor-
    able to the prosecution, any rational trier of fact could have
    found the essential elements of the crime beyond a reason-
    able doubt.4
    The Court of Appeals determined that the record from
    Ratumaimuri’s third degree assault conviction provided suf-
    ficient evidence to support his conviction. Since we denied
    Ratumaimuri’s petition for further review regarding this
    issue, we do not reconsider the Court of Appeals’ hold-
    ing that Ratumaimuri’s conviction was supported by suffi-
    cient evidence.
    The State contends that Ratumaimuri’s appeal as a whole
    was an impermissible attack on a prior conviction. However,
    4
    State v. Wofford, 
    298 Neb. 412
    , 
    904 N.W.2d 649
    (2017).
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    STATE v. RATUMAIMURI
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    299 Neb. 887
    since the appeal raised only one assignment of error, that
    being the sufficiency of the evidence, the appeal was proper.
    Nonetheless, Ratumaimuri specifically argued that the record
    from the prior proceeding was insufficient to subject him to
    SORA. As a result, we must consider whether this argument
    constituted an impermissible collateral attack on a previous
    judgment and whether the Court of Appeals erred in addressing
    the merits of this argument.
    Generally, SORA requires individuals that plead guilty to
    or are convicted of certain enumerated offenses, also known
    as automatically registerable offenses, to register with the
    county sheriff in the counties where they reside, work, and
    attend school.5 SORA requirements may also apply to individu-
    als that plead guilty to or are convicted of offenses that are
    not inherently sexual, but which are listed in subsections (I)
    through (VII), (IX), and (X) of § 29-4003(1)(b)(i)(A). Third
    degree assault is one of the listed offenses that is not inher-
    ently sexual.6
    Section 29-4003(1)(b)(i)(B) sets out the requirements to
    bring an offense that is not inherently sexual within SORA,
    stating that “[i]n order for [SORA] to apply to the [listed not
    inherently sexual offenses], a court shall have found that evi-
    dence of sexual penetration or sexual contact, as those terms
    are defined in section 28-318, was present in the record . . . .”
    In State v. Norman (Norman I),7 on direct appeal, and State
    v. Norman (Norman II),8 on appeal after remand, we consid-
    ered a trial court’s § 29-4003(1)(b)(i)(B) determination for an
    underlying conviction of third degree assault. Both appeals
    assigned error to the district court’s determination that the
    defendant was subject to SORA’s requirements for his third
    degree assault conviction. In Norman I, we reversed the court’s
    5
    See § 29-4001 et seq.
    6
    § 29-4003(1)(b)(i)(A)(VI).
    7
    State v. Norman, 
    282 Neb. 990
    , 
    808 N.W.2d 48
    (2012).
    8
    State v. Norman, 
    285 Neb. 72
    , 
    824 N.W.2d 739
    (2013).
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    STATE v. RATUMAIMURI
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    determination that SORA was applicable, because the court
    made the requisite finding solely on the State’s factual basis
    for the plea and not the evidence on the record, which denied
    the defendant procedural due process. In Norman II, we deter-
    mined the burden for proving that the offense included “sexual
    penetration” or “sexual contact,” under § 29-4003(1)(b)(i)(B),
    was by clear and convincing evidence, and we held that there
    was sufficient evidence to support the court’s factual finding of
    “sexual contact.”
    [2] As evidenced by these opinions, the trial court must
    determine whether a defendant, who has committed a listed
    offense that is not inherently sexual, is subject to SORA during
    the proceedings on the underlying conviction and sentence.9
    This is also supported by § 29-4003(1)(b)(i)(B)’s requirement
    that the determination be based on the evidence in the record,
    because the court on the underlying conviction is in the best
    position to consider the facts present in the case before it.
    [3-5] This court has recognized that a judgment is an adju-
    dication of all the matters that are essential to support it, and
    every proposition assumed or decided by the court leading up
    to the final conclusion and on which such conclusion is based
    is as effectually passed upon as the ultimate question which is
    finally resolved.10 In a criminal case, the judgment from which
    the appellant may appeal is the sentence.11 Thus, we hold that
    whether a defendant is subject to SORA based on a guilty plea
    or conviction for an offense that is not inherently sexual must
    be reviewed on direct appeal from the underlying conviction
    and sentence.12
    [6-8] When a judgment is attacked in a way other than by
    proceeding in the original action to have it vacated, reversed,
    or modified, or by a proceeding in equity to prevent its
    9
    See, also, State v. Boche, 
    294 Neb. 912
    , 
    885 N.W.2d 523
    (2016).
    10
    State v. Keen, 
    272 Neb. 123
    , 
    718 N.W.2d 494
    (2006).
    11
    Dugan v. State, 
    297 Neb. 444
    , 
    900 N.W.2d 528
    (2017).
    12
    See Neb. Rev. Stat. § 25-1911 (Reissue 2016).
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    enforcement, the attack is a collateral attack.13 A judgment that
    is not void, even if erroneous, cannot be collaterally attacked.14
    Therefore, we further hold that a challenge to a determina-
    tion that SORA applies to a defendant for a listed offense that
    is not inherently sexual outside of a direct appeal from the
    underlying conviction and sentence is an impermissible col-
    lateral attack.
    As a result, in the instant matter, we conclude Ratumaimuri’s
    argument that the determination in the previous proceedings
    was invalid constituted an impermissible collateral attack
    on the judgment of his previous conviction and sentence.
    Therefore, the Court of Appeals erred in addressing the merits
    of Ratumaimuri’s argument and not relying solely on the prior
    determination that Ratumaimuri was subject to SORA.
    We note that these holdings do not conflict with our earlier
    opinion in State v. Torres.15 At the time we decided Torres,
    SORA applied only to the automatically registerable offenses
    now listed in § 29-4003(1)(a).16 SORA provides that its require-
    ments apply to these automatically registerable offenses with-
    out any determination during the proceedings on the underly-
    ing conviction.17 After our decision in Torres, the Legislature
    amended SORA to add the offenses that are not inherently sex-
    ual and the requisite findings of sexual penetration or sexual
    contact.18 Our opinions in Norman I and Norman II addressed
    these new considerations.
    Further, Torres is distinguishable from Ratumaimuri’s matter
    and our opinions in Norman I and Norman II as it concerned
    Reyes Torres’ standing to challenge his conviction and sen-
    tence by attacking the constitutionality of SORA. Torres was
    13
    Fetherkile v. Fetherkile, ante p. 76, 
    907 N.W.2d 275
    (2018).
    14
    Sanders v. Frakes, 
    295 Neb. 374
    , 
    888 N.W.2d 514
    (2016).
    15
    State v. Torres, 
    254 Neb. 91
    , 
    574 N.W.2d 153
    (1998).
    16
    See § 29-4003 (Cum. Supp. 1996).
    17
    See § 29-4003(1)(a) (Reissue 2016).
    18
    2009 Neb. Laws, L.B. 285.
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    convicted of third degree sexual assault, which automatically
    made him subject to SORA. During the sentencing, Torres was
    advised of the requirement, but the district court’s sentencing
    order did not address SORA’s requirements. Further, Torres did
    not argue to the sentencing court that SORA was unconstitu-
    tional. On appeal, however, Torres argued that his sentence was
    excessive because SORA potentially increased his sentence for
    failing to register under it.
    Our decision in Torres first addressed the fact that Torres
    did not raise the constitutional challenge before the sentenc-
    ing court. We noted that an appellate court will not consider a
    constitutional question unless the question has been properly
    presented to the trial court for disposition. We then noted
    the proposition of law that “defendants are prohibited from
    attempting to circumvent or avoid conviction under a particular
    statute by asserting a constitutional challenge to another, col-
    lateral statute which is irrelevant to the prosecution.”19 As a
    result, we determined that the underlying conviction could not
    be attacked based upon the constitutionality of SORA.
    [9] While our reasoning differs from that employed by the
    Court of Appeals, our ultimate conclusion on the judgment
    is the same. Upon further review from a judgment of the
    Nebraska Court of Appeals, the Nebraska Supreme Court will
    not reverse a judgment which it deems to be correct simply
    because its reasoning differs from that employed by the Court
    of Appeals.20
    CONCLUSION
    The judgment of the Nebraska Court of Appeals is affirmed.
    A ffirmed.
    19
    Torres, supra note 
    15, 254 Neb. at 94
    , 574 N.W.2d at 155.
    20
    In re Estate of Clinger, 
    292 Neb. 237
    , 
    872 N.W.2d 37
    (2015).