State v. Watts ( 2014 )

Decisions of the Nebraska Court of Appeals
STATE v. WATTS 505
Cite as 22 Neb. Ct. App. 505
had already been paid to the appropriate providers and that
the remaining balances were to be paid directly to the medi-
cal providers and to Medicare as subrogor. We find Rebecca’s
assignment of error with regard to her entitlement for medical
expenses is without merit.
CONCLUSION
We find the county court did not err in finding it had juris-
diction to distribute the settlement proceeds only according to
§ 30-810 and in allocating the settlement proceeds accordingly.
We also find the county court did not err in finding the par-
ties were not entitled to recover the value of medical expenses
incurred for Ellen’s care and paid directly to the medical pro-
viders out of the settlement proceeds.
Affirmed.
State of Nebraska, appellee, v.
Elijah D. Watts, appellant.
___ N.W.2d ___
Filed November 4, 2014. Nos. A-13-1105, A-13-1136.
1. Statutes: Appeal and Error. Statutory interpretation is a matter of law in con-
nection with which an appellate court has an obligation to reach an independent,
correct conclusion irrespective of the determination made by the trial court.
2. Rules of the Supreme Court: Appeal and Error. Interpretation of a court rule is
a matter of law in connection with which an appellate court has an obligation to
reach an independent, correct conclusion irrespective of the determination made
by the trial court.
3. Prior Convictions: Sentences. To constitute a basis for enhancement of punish-
ment on a charge of a second or subsequent offense, the prior conviction relied
upon for enhancement must be a final conviction.
4. Prior Convictions: Sentences: Appeal and Error. A prior conviction that is
pending on appeal will not support enhanced penalties because it has not yet
become final and may be reversed by the appellate court.
5. Sentences: Prior Convictions: Drunk Driving: Time. The finality of a prior
driving under the influence conviction offered for purposes of enhancement is
determined as of the date the subsequent offense was committed.
Appeal in No. A-13-1105 from the District Court for
Lancaster County, Paul D. Merritt, Jr., Judge, on appeal
Decisions of the Nebraska Court of Appeals
506 22 NEBRASKA APPELLATE REPORTS
thereto from the County Court for Lancaster County, Jean A.
Lovell, Judge. Judgment of District Court affirmed. Appeal in
No. A-13-1136 from the District Court for Lancaster County:
Jodi Nelson, Judge. Affirmed.
Chad J. Wythers, of Berry Law Firm, for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
Inbody, Riedmann, and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
This is a consolidated appeal in which Elijah D. Watts chal-
lenges two separate orders of the district court for Lancaster
County involving two separate convictions for driving under
the influence (DUI). In case No. A-13-1105, he appeals the
district court’s dismissal of his appeal from his 2005 county
court conviction for DUI. In case No. A-13-1136, he appeals
his most recent conviction for DUI, third offense, asserting
that the district court erred in finding that his 2005 DUI con-
viction was a valid prior conviction for purposes of enhance-
ment. These cases have been consolidated for briefing and
disposition to address whether Watts’ 2005 DUI conviction,
which is on appeal in case No. A-13-1105, can be used to
enhance his present DUI conviction, which is on appeal in case
No. A-13-1136.
BACKGROUND
Watts was convicted of DUI after pleading guilty in the
county court for Lancaster County in 2005. He was sentenced
to probation, and he completed his probation in early 2007.
Watts did not attempt to appeal his conviction or sentence at
that time.
Watts was arrested for the present DUI on January 18, 2013.
He was charged in the district court for Lancaster County
with DUI, third offense, with a breath alcohol concentra-
tion of .15 of a gram of alcohol per 210 liters of breath or
greater. Watts entered a guilty plea to the underlying offense on
Decisions of the Nebraska Court of Appeals
STATE v. WATTS 507
Cite as 22 Neb. Ct. App. 505
October 11. The district court accepted his plea and found him
guilty beyond a reasonable doubt.
An enhancement hearing was held immediately following
the acceptance of Watts’ plea, during which hearing the State
offered certified copies of the court files containing Watts’
prior DUI convictions from 2005 and 2009. None of the
court records associated with the 2005 conviction contained a
file stamp.
Watts objected to the use of the 2005 conviction on the
basis that it was not a final conviction, because it was cur-
rently pending on appeal. Defense counsel advised the court
that he had filed a notice of appeal from the 2005 conviction
that morning. Watts took the stand and testified as to the fil-
ing of the notice of appeal that morning as well. The district
court found that both of Watts’ prior convictions were valid for
enhancement purposes, and it enhanced Watts’ current DUI to
a third offense.
Watts filed a motion for reconsideration of the district
court’s ruling. During a hearing on the motion, he offered a
certified copy of the county court file for the 2005 conviction,
which showed that a notice of appeal was in fact filed in the
county court on October 11, 2013. It also contained an order
issued by the county court on October 17, in which the court
dismissed Watts’ appeal as premature because the final order
from which he appealed had never been file stamped. The court
ordered the clerk of the court to file stamp the judgment, upon
which, it indicated, Watts’ time to appeal would begin to run.
The clerk of the court file stamped the final order on October
17, and Watts filed a new notice of appeal in the county court
on October 22.
Watts also offered a certified copy of the district court file
showing that the 2005 conviction was currently before the
court on appeal. Contained within the district court file was
a notice issued by the clerk of the county court informing the
clerk of the district court that no request had been received for
preparation of the appeal transcript in this case, nor had any
payment for the transcript fee been received.
The district court overruled the motion for reconsideration.
Watts was sentenced to serve 300 days in the county jail, and
Decisions of the Nebraska Court of Appeals
508 22 NEBRASKA APPELLATE REPORTS
his driver’s license was revoked for a period of 15 years. Watts
timely appeals from that judgment.
On December 2, 2013, the district court dismissed Watts’
appeal from the 2005 county court conviction for failure to
request or pay for an appeal transcript as required by Neb. Ct.
R. § 6-1452(A)(4)(b) (rev. 2011). Watts timely appeals from
that judgment as well.
ASSIGNMENTS OF ERROR
Watts asserts that the district court erred in (1) dismissing
his appeal from the 2005 county court conviction and (2) find-
ing that his 2005 DUI conviction was valid for purposes of
enhancement, even though it was pending on appeal at the time
of the enhancement hearing.
STANDARD OF REVIEW
[1,2] Statutory interpretation is a matter of law in connec-
tion with which an appellate court has an obligation to reach
an independent, correct conclusion irrespective of the determi-
nation made by the trial court. State v. Macek, 278 Neb. 967,
774 N.W.2d 749 (2009). The Nebraska Supreme Court has not
previously enunciated the standard of review applicable to the
interpretation of court rules; however, we find it most analo-
gous to the interpretation of statutes, so we apply the same
standard here. Thus, interpretation of a court rule is a matter of
law in connection with which an appellate court has an obliga-
tion to reach an independent, correct conclusion irrespective of
the determination made by the trial court.
When dispositive issues on appeal present questions of law,
an appellate court has an obligation to reach an independent
conclusion irrespective of the decision of the court below. State
v. Anderson, 279 Neb. 631, 781 N.W.2d 55 (2010).
ANALYSIS
Dismissal of Appeal From
2005 Conviction
Watts argues on appeal that the district court should have
made a decision on the merits rather than dismissing his
appeal from county court for failure to pay the transcript fee.
We disagree.
Decisions of the Nebraska Court of Appeals
STATE v. WATTS 509
Cite as 22 Neb. Ct. App. 505
The procedures for obtaining transcripts for appeals from
a county court to a district court are set forth in the Nebraska
Supreme Court Rules. The rules require appellants to file a
request for preparation of the transcript at the time of filing the
notice of appeal and to pay the estimated cost of the transcript
to the county court before preparation of the transcript may
begin. See § 6-1452(A)(1)(a) and (4)(a). In the event of non-
payment, § 6-1452(A)(4)(b) provides the following:
An appeal may be dismissed for failure to make pay-
ment for the transcript except in cases where a poverty
affidavit has been filed. If payment for the transcript has
not been received within the time allowed under Neb.
Rev. Stat. § 25-2731, and no poverty affidavit has been
filed, the clerk of the county court shall send a certified
copy of the notice of appeal to the clerk of the district
court, together with a statement that the fee has not
been paid.
The record before us reflects that Watts failed to request or
make payment for the county court transcript, and the clerk
of the county court notified the district court of the same in
accordance with this rule. There is no evidence that a poverty
affidavit was ever filed, and Watts does not argue otherwise.
Based on the plain language of § 6-1452(A)(4)(b), the district
court was authorized to dismiss the appeal upon Watts’ fail-
ure to pay for the transcript. We find no error in its having
done so.
Watts acknowledges that the language of the court rule
supports the district court’s decision, but argues that the rule
should be interpreted in light of precedent set forth by the
Nebraska Supreme Court. Specifically, he cites to Riggert v.
King, 192 Neb. 607, 223 N.W.2d 155 (1974), and WBE Co. v.
Papio-Missouri River Nat. Resources Dist., 247 Neb. 522, 529
N.W.2d 21 (1995), for the well-established proposition that it
is incumbent upon the appellant to present a record supporting
the errors assigned and that absent such a record, the lower
court’s decision will be affirmed. However, we note that in
Riggert v. King, supra, there is no indication that the appellant
failed to request or pay for a transcript. It is evident from the
opinion that the court had the transcript before it and that it
Decisions of the Nebraska Court of Appeals
510 22 NEBRASKA APPELLATE REPORTS
was the appellant’s failure to provide a bill of exceptions con-
taining evidence to support his position which led the review-
ing court to presume the evidence supported the findings of the
lower court and affirm the decision.
WBE Co. v. Papio-Missouri River Nat. Resources Dist.,
supra, was an action that originated in a district court. The
appellant failed to include a copy of one of the motions from
which it received an adverse ruling. The court held that because
the motion was not part of the record, the record was not prop-
erly preserved. After reviewing the bill of exceptions, the court
determined the appellant’s assignment of error as to this issue
was without merit. The appellant did not fail to provide a tran-
script; rather, he failed to include one of the motions on which
he received an unfavorable ruling. Furthermore, the case origi-
nated in a district court and did not involve § 6-1452(A)(4)(b),
which is applicable only to cases appealed from a county court
to a district court.
The proposition of law that Watts urges us to apply is
generally applied in situations where the bill of exceptions
containing the trial court evidence is either missing or incom-
plete. As a result, the appellate court examines the transcript
to determine whether the pleadings support the trial court’s
judgment, and if so, it affirms the judgment. See, Centurion
Stone of Neb. v. Whelan, 286 Neb. 150, 835 N.W.2d 62
(2013); Groene v. Commissioner of Labor, 228 Neb. 53, 54,
421 N.W.2d 31, 32 (1988) (“[i]n the absence of a bill of
exceptions, the judgment of the trial court will be affirmed if
the pleadings support the judgment”). It is not applicable in a
situation where, as here, a party appeals from a county court
to a district court and does not request or pay for a transcript.
In this situation, the district court may dismiss the appeal pur-
suant to § 6-1452(A)(4)(b). See State v. Hanus, 3 Neb. Ct. App.
881, 534 N.W.2d 332 (1995).
In State v. Hanus, supra, the appellant did not request a
transcript or file a poverty affidavit within 10 days of fil-
ing his notice of appeal. Our opinion primarily addressed the
lower courts’ shortcomings as they related to the appellant’s
in forma pauperis status. However, as to the district court’s
authority to dismiss the appeal, we relied upon what is now
Decisions of the Nebraska Court of Appeals
STATE v. WATTS 511
Cite as 22 Neb. Ct. App. 505
§ 6-1452(A)(4)(b) and stated: “If in forma pauperis status was
properly denied, [the] appeal was clearly subject to dismissal
for failure to advance the costs of the appeal.” Id. at 893, 534
N.W.2d at 340.
In the present action, Watts failed to advance the costs of
the transcript, and we find no error in the district court’s dis-
missal of the appeal of his 2005 DUI conviction based upon
§ 6-1452(A)(4)(b).
Enhancement of
2013 Conviction
Watts asserts that the district court erred in using his 2005
DUI conviction to enhance his present sentence. He argues that
the 2005 conviction was not final, because it was pending on
appeal at the time of the enhancement hearing.
[3-5] To constitute a basis for enhancement of punishment
on a charge of a second or subsequent offense, the prior con-
viction relied upon for enhancement must be a final convic-
tion. State v. Estes, 238 Neb. 692, 472 N.W.2d 214 (1991).
A prior conviction that is pending on appeal will not support
enhanced penalties because it has not yet become final and
may be reversed by the appellate court. See id. However, in
State v. Estes, supra, the Nebraska Supreme Court held that
the finality of a prior DUI conviction offered for purposes
of enhancement is determined as of the date the subsequent
offense was committed, not the date of the enhancement hear-
ing. It stated:
The defendant’s habitual offender status is determined
at the time the subsequent offense is committed. . . .
Therefore, even if the first conviction is affirmed before
sentencing on the second conviction, it may not be used
for sentencing enhancement purposes, since it was not
final at the time the second offense was committed.
Id. at 695-96, 472 N.W.2d at 216.
Here, Watts’ 2005 DUI conviction was not on appeal at
the time the present offense was committed. He committed
the present offense on January 18, 2013, and then subse-
quently filed his notice of appeal from the 2005 DUI convic-
tion on October 11. We note that the time to appeal the 2005
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512 22 NEBRASKA APPELLATE REPORTS
conviction had not yet expired due to the failure of the clerk to
place a file stamp on the final sentencing order. See Neb. Rev.
Stat. § 25-1301(3) (Reissue 2008) (“[f]or purposes of deter-
mining the time for appeal, the date stamped on the judgment,
decree, or final order shall be the date of entry”). However, the
Nebraska Supreme Court has determined that the lack of a file
stamp does not invalidate a prior conviction for purposes of
enhancement. See State v. Macek, 278 Neb. 967, 774 N.W.2d
749 (2009).
In State v. Macek, supra, the appellant argued that the dis-
trict court erred in using two of his prior DUI convictions to
enhance his sentence, because the prior convictions lacked file
stamps and therefore were not final convictions. The Supreme
Court rejected this argument, in part, because there was no
dispute that the prior convictions had occurred years before
the present offense was committed and had not been appealed.
See id. The Supreme Court further held that the appeal was
an impermissible collateral attack on the prior proceedings
and found that the prior convictions were properly used for
enhancement. See id.
Reading State v. Estes, supra, and State v. Macek, supra,
together, we conclude that Watts’ 2005 DUI conviction is
valid for purposes of enhancement, because no appeal had
been taken at the time the present offense was committed and
because any attempt to attack the prior conviction based on the
lack of a file stamp would have been an impermissible col-
lateral attack, since there was no appeal pending at that time.
Thus, the district court was correct in enhancing Watts’ convic-
tion to a third offense.
CONCLUSION
The district court did not err in dismissing Watts’ appeal
from his 2005 DUI conviction, nor did it err in finding
that such conviction was valid for purposes of enhancement.
Accordingly, we affirm.
Affirmed.