In re Interest of Tre'Sean W. ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
IN RE INTEREST OF TRE’SEAN W.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
IN RE INTEREST OF TRE’SEAN W., A CHILD UNDER 18 YEARS OF AGE.
STATE OF NEBRASKA, APPELLEE,
V.
TRE’SEAN W., APPELLANT.
Filed April 20, 2021. No. A-20-707.
Appeal from the Separate Juvenile Court of Lancaster County: REGGIE L. RYDER, Judge.
Affirmed.
Joe Nigro, Lancaster County Public Defender, and Megan R. Kielty for appellant.
Patrick Condon, Lancaster County Attorney, and Haley N. Messerschmidt for appellee.
PIRTLE, Chief Judge, and MOORE and BISHOP, Judges.
BISHOP, Judge.
INTRODUCTION
Tre’Sean W. attacks the constitutionality of a state statute prohibiting an individual from
possessing a firearm until the age of 25 if the individual was previously adjudicated as an offender
in juvenile court for an act which would constitute a felony or an act which would constitute a
misdemeanor crime of domestic violence. However, Tre’Sean failed to comply with the procedural
rule governing constitutional challenges to statutes. We affirm.
BACKGROUND
On November 4, 2019, the State filed a petition in the Separate Juvenile Court of Douglas
County in case No. JV 19-1793 alleging that Tre’Sean was a juvenile as defined by Neb. Rev. Stat.
§ 43-247(1) (Reissue 2016) (juvenile committed act other than traffic offense which would
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constitute misdemeanor or infraction under laws of this state, 11 years of age or older at time act
committed), and § 43-247(2) (juvenile committed act which would constitute felony under laws of
this state, 11 years of age or older at time act committed). The State specifically alleged that
Tre’Sean committed the following acts: count I, “Manufacturing, Distributing, or Possession with
Intent to Distribute a Controlled Substance with a Firearm,” a Class ID felony, pursuant to Neb.
Rev. Stat. § 28-416(16) (Cum. Supp. 2020); count II, “Manufacturing, Distributing, or Possession
with Intent to Distribute: Base Cocaine (Crack),” a Class II felony, pursuant to § 28-416(1); count
III, “Possession of Stolen Firearm,” a Class IIA felony, pursuant to Neb. Rev. Stat. § 28-1212.03(Reissue 2016); count IV, “Possess Marijuana 1 oz or Less-1st Offense,” an infraction, pursuant
to § 28-416(13); and count V, “Carrying a Concealed Weapon,” a Class I misdemeanor, pursuant
to Neb. Rev. Stat. § 28-1202(3) (Reissue 2016).
After a hearing in December 2019, the juvenile court adjudicated Tre’Sean to be a juvenile
as defined by § 43-247(2) based on Tre’Sean’s admission, pursuant to a plea agreement, to count II
of the petition, “Manufacturing, Distributing, or Possession with Intent to Distribute: Base Cocaine
(Crack),” a Class II felony, pursuant to § 28-416(1). In exchange for Tre’Sean’s plea, counts I, III,
IV, and V were dismissed on oral motion by the State.
On February 19, 2020, the State filed a supplemental petition in the Separate Juvenile Court
of Lancaster County in case No. JV 19-493 alleging that Tre’Sean was a juvenile as defined by
§ 43-247(1) and (2) because Tre’Sean, between February 14 and 17, being a person under the age
of 25 years, did knowingly possess a firearm and he had previously been adjudicated an offender
in juvenile court for an act which would constitute a felony or an act which would constitute a
misdemeanor crime of domestic violence, in violation of Neb. Rev. Stat. § 28-1204.05 (Cum.
Supp. 2020), a Class IV felony for a first offense; and Tre’Sean, between February 14 and 17,
being a person under the age of 18 years, did possess a handgun, in violation of Neb. Rev. Stat.
§ 28-1204 (Reissue 2016), a Class I misdemeanor.
On March 19, 2020, Tre’Sean filed a motion to quash the supplemental petition alleging
that § 28-1204.05 is “unconstitutional both on its face and as applied.” Tre’Sean claimed the statute
(1) violates equal protection by denying persons younger than 25 years of age the same treatment
under the law “that those 25 years old or older enjoy,” (2) violates “the right of criminal defendants
to have each element of a crime tried by a jury by depriving a juvenile adjudicated without a jury
trial of the same safeguards and indicia of reliability afforded to criminal defendants when
admitting prior convictions,” (3) constitutes “unconstitutional special class legislation,” (4)
violates the juvenile’s right to lawfully possess a firearm beyond the permissible prohibitions
enumerated by the U.S. Supreme Court, (5) deprives the juvenile of substantive and procedural
due process, (6) violates the proportionality requirement of the Nebraska Constitution, (7)
substantially burdens the juvenile’s rights under the state’s constitution “to hunt and harvest
wildlife,” and (8) violates the protections against ex post facto laws. On June 17, the juvenile court
found that § 28-1204.05 was neither unconstitutional on its face nor as applied, and the court
overruled Tre’Sean’s motion to quash.
A contested adjudication hearing on the supplemental petition was held on August 28,
2020. At the hearing, the State presented evidence that Tre’Sean, born in 2003, was previously
adjudicated in Douglas County case No. JV 19-1793 wherein he was found to be a juvenile as
defined by § 43-247(2) based on his admission to count II of the petition, “Manufacturing,
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Distributing, or Possession with Intent to Distribute: Base Cocaine (Crack),” a Class II felony,
pursuant to § 28-416(1). The State also presented evidence, via the testimony of a school resource
officer, that Tre’Sean was observed holding a handgun in a video that was posted to Snapchat; in
the video, Tre’Sean pointed the handgun at the camera, and at one point in the video, he “remove[d]
the magazine from the handgun, and you can see the bullets that are in the gun.” A DVD copy of
the Snapchat video and a picture of a screenshot from the video were also received into evidence
over Tre’Sean’s objections. Another witness, who appeared in the Snapchat video with Tre’Sean,
testified that the video was taken “possibly a day” before the witness was contacted by the police
at his school; according to his school resource officer, the witness was contacted at school on
February 17, 2020.
In its order filed on August 28, 2020, the juvenile court adjudicated Tre’Sean to be a
juvenile as defined by § 43-247(1) and (2) after finding the allegations in the supplemental petition
were proven beyond a reasonable doubt.
Tre’Sean timely appeals the August 28, 2020, order of adjudication, and the earlier June
17 order overruling the motion to quash.
ASSIGNMENT OF ERROR
Tre’Sean assigns, summarized, that because § 28-1204.05 violates provisions of the U.S.
and Nebraska Constitutions, the juvenile court erred in overruling the motion to quash.
STANDARD OF REVIEW
An appellate court reviews juvenile cases de novo on the record and reaches its conclusions
independently of the juvenile court’s findings. In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d
135 (2020).
Whether a party has complied with the notice requirements of Neb. Ct. R. App. P.
§ 2-109(E) (rev. 2014) is determined de novo upon a review of the record. State v. Catlin, 308
Neb. 294, 953 N.W.2d 563 (2021).
ANALYSIS
The Nebraska Court of Appeals cannot determine the constitutionality of a statute, yet
when necessary to a decision in the case before it, the court does have jurisdiction to determine
whether a constitutional question has been properly raised. State v. Doyle, 18 Neb. App. 495, 787
N.W.2d 254 (2010). To properly raise a challenge to the constitutionality of a statute, a litigant is
required to strictly comply with § 2-109(E) and to properly raise and preserve the issue before the
trial court. See State v. Doyle, supra. Tre’Sean did properly raise and preserve the constitutionality
of § 28-1204.05 before the juvenile court. See State v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017)
(as-applied challenges to constitutionality of criminal statute preserved by defendant’s plea of not
guilty; proper procedure for raising facial constitutional challenge to criminal statute is to file
motion to quash). However, although not raised by the State, we find that Tre’Sean did not comply
with § 2-109(E) on appeal.
Section 2-109(E) mandates that a party presenting a case involving the federal or state
constitutionality of a statute must file and serve notice thereof with the Supreme Court Clerk by
separate written notice or in a petition to bypass at the time of filing such party’s brief and provide
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the Attorney General with a copy of its brief if the Attorney General is not already a party to the
case. State v. Catlin, supra. Section 2-109(E) states in full:
Cases Involving Constitutional Questions. A party presenting a case involving the federal
or state constitutionality of a statute must file and serve notice thereof with the Supreme
Court Clerk by a separate written notice or by notice in a Petition to Bypass at the time of
filing such party’s brief. If the Attorney General is not already a party to an action where
the constitutionality of the statute is in issue, a copy of the brief assigning
unconstitutionality must be served on the Attorney General within 5 days of the filing of
the brief with the Supreme Court Clerk; proof of such service shall be filed with the
Supreme Court Clerk.
Section 2-109(E) ensures, in light of the constitutional requirement that no legislative act
shall be held unconstitutional except by the concurrence of five judges, that the Nebraska Supreme
Court will secure a full court to hear an appeal challenging the constitutionality of a statute. See
State v. Catlin, supra. See, also, Neb. Const. art. V, § 2 (no legislative act shall be held
unconstitutional except by concurrence of five judges; judges of Supreme Court, sitting without
division, shall hear and determine all cases involving constitutionality of statute). Section 2-109(E)
also ensures that the Attorney General has been notified of the challenge to the constitutionality of
statute, so that the Attorney General may carry out the common-law duty to defend all duly adopted
statutory enactments that are not unconstitutional. State v. Catlin, supra.Without strict compliance with § 2-109(E), the Nebraska Supreme Court will not address
a constitutional challenge to a statute. See State v. Catlin, supra. A litigant must strictly comply
with § 2-109(E) whenever the litigant challenges the constitutionality of a statute, regardless of
how that constitutional challenge may be characterized. See State v. Catlin, supra. See, also, State
v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016) (distinction between facial and as-applied
constitutional challenges immaterial when it comes to § 2-109(E) notice).
In this case, Tre’Sean did not strictly comply with § 2-109(E). First, he did not provide a
separate notice or a petition to bypass to the Supreme Court Clerk. Second, the record does not
show that the Attorney General received a copy of Tre’Sean’s brief; in this appeal, the State is
represented by the Lancaster County Attorney’s office. “When the State is not represented by the
office of the Attorney General, the prosecution having instead been handled by a city or county
attorney, a copy of the brief that raises the constitutionality of a statute must be served on the
Attorney General.” State v. Catlin, 308 Neb. at 300, 953 N.W.2d at 568. Because Tre’Sean did not
strictly comply with § 2-109(E), the Nebraska Supreme Court could not consider the
constitutionality of § 28-1204.05, which was the basis for his claim that the juvenile court erred in
overruling his motion to quash.
As stated previously, this court cannot determine the constitutionality of a statute. See State
v. Doyle, supra. We only have jurisdiction to determine whether a constitutional question has been
properly raised; it was not. See id. Accordingly, we cannot further address the juvenile court’s
decision to overrule Tre’Sean’s motion to quash.
We note that Tre’Sean does not challenge the sufficiency of the evidence to adjudicate him
pursuant to the allegations in the supplemental petition. However, for the sake of completeness,
on our de novo review, we find that the evidence was sufficient and we affirm the adjudication.
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CONCLUSION
For the reasons stated above, we affirm the juvenile court’s adjudication of Tre’Sean on
the supplemental petition.
AFFIRMED.
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