State v. Rice ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/09/2016 09:08 AM CST
- 241 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. RICE
Cite as 295 Neb. 241
State of Nebraska, appellee, v.
David L. R ice, appellant.
___ N.W.2d ___
Filed December 9, 2016. No. S-15-932.
1. Actions: Parties: Death: Abatement, Survival, and Revival: Appeal
and Error. Whether a party’s death abates an appeal or cause of action
presents a question of law.
2. Attorney Fees: Appeal and Error. When attorney fees are authorized,
the trial court exercises its discretion in setting the amount of the fee,
which ruling an appellate court will not disturb on appeal unless the
court abused its discretion.
3. Actions: Parties: Death: Abatement, Survival, and Revival: Appeal
and Error. Statutory provisions regarding abatement and revivor of
actions apply to cases in which a party dies pending an appeal.
4. Actions: Parties: Death: Abatement, Survival, and Revival. Even if
a party’s death does not abate a cause of action, a substitution of parties
may be required before the action or proceeding can continue.
5. Abatement, Survival, and Revival: Moot Question: Appeal and
Error. An abatement can refer to the extinguishment of an appeal only
when the legal right being appealed has become moot because of a
party’s death while the appeal was pending.
6. Postconviction: Attorney Fees: Appeal and Error. Court-appointed
counsel in a postconviction proceeding may appeal to the appellate
courts from an order determining expenses and fees allowed under Neb.
Rev. Stat. § 29-3004 (Reissue 2016). Such an appeal is a proceeding
separate from the underlying postconviction proceeding.
7. Postconviction: Right to Counsel. Under the Nebraska Postconviction
Act, whether to appoint counsel to represent the defendant is within the
discretion of the trial court.
8. Postconviction: Justiciable Issues: Right to Counsel. When the
assigned errors in a postconviction petition before the district court
- 242 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. RICE
Cite as 295 Neb. 241
contain no justiciable issues of law or fact, it is not an abuse of discre-
tion to fail to appoint counsel for an indigent defendant.
9. Postconviction: Attorney Fees. Although appointment of counsel in
postconviction cases is discretionary, Neb. Rev. Stat. § 29-3004 (Reissue
2016) provides that once counsel has been appointed and appointed
counsel has made application to the court, the court “shall” fix reason-
able expenses and fees.
10. Attorney Fees. To determine reasonable expenses and fees under Neb.
Rev. Stat. § 29-3004 (Reissue 2016), a court must consider several fac-
tors: the nature of the litigation, the time and labor required, the novelty
and difficulty of the questions raised, the skill required to properly con-
duct the case, the responsibility assumed, the care and diligence exhib-
ited, the result of the suit, the character and standing of the attorney, and
the customary charges of the bar for similar services.
Appeal from the District Court for Douglas County: James
T. Gleason, Judge. Motion for substitution of parties over-
ruled. Reversed and remanded with directions.
Timothy L. Ashford for appellant.
Donald W. Kleine, Douglas County Attorney, and Katie L.
Benson for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
This case, No. S-15-932, is an appeal from the order of
the district court for Douglas County which denied attorney
Timothy L. Ashford’s application for expenses and fees for
service as court-appointed appellate counsel for David L.
Rice in Rice’s postconviction proceeding. Rice died while
this appeal was pending, and Ashford filed a suggestion of
death. Ashford later filed a motion for substitution of parties
in which he requested that, if necessary, he or a member of
Rice’s family be substituted for Rice as a party to this appeal.
We determine that because Ashford is the proper appellant in
this appeal, no substitution of parties is needed. With regard to
- 243 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. RICE
Cite as 295 Neb. 241
the merits of the appeal, we reverse, and remand to the district
court for further proceedings.
STATEMENT OF FACTS
In 1971, Rice was convicted of first degree murder and was
sentenced to life imprisonment. His conviction and sentence
were affirmed on direct appeal. State v. Rice, 188 Neb. 728,
199 N.W.2d 480 (1972). Rice subsequently filed unsuccess-
ful actions for habeas corpus relief in federal court and a state
court petition for postconviction relief, the denial of which
was affirmed by this court in State v. Rice, 214 Neb. 518, 335
N.W.2d 269 (1983).
On September 28, 2012, Rice filed a successive petition for
postconviction relief. The district court dismissed Rice’s peti-
tion on the bases that (1) the petition was barred by the statute
of limitations set forth in Neb. Rev. Stat. § 29-3001(4) (Reissue
2016), (2) Rice’s claims were procedurally barred because they
were or could have been raised in his direct appeal or his
previous postconviction proceeding, and (3) Rice’s petition
did not set forth claims that would entitle him to relief. Rice
appealed the denial of his petition for postconviction relief and
made several assignments of error on appeal to this court in
case No. S-14-056.
The record in case No. S-14-056 shows that Rice’s petition
for postconviction relief was filed on his behalf in the district
court by attorney Ashford. Ashford also filed on behalf of
Rice a motion to appoint counsel on the basis that Rice was
indigent. Ashford continued to represent Rice in the postcon-
viction proceeding. However, the record in case No. S-14-056
did not contain a ruling on the motion to appoint counsel prior
to the district court’s order denying postconviction relief.
Consequently, after Rice filed his notice of appeal of the order
denying postconviction relief and given the unresolved motion
pending in district court, we directed the district court “to rule
upon [the] motion for appointment of counsel previously filed
in the trial court.”
- 244 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. RICE
Cite as 295 Neb. 241
In an order filed January 24, 2014, the district court
acknowledged that Rice had filed a motion to appoint coun-
sel, but the court stated that it was never presented with the
motion and that Rice never asked it to rule on the motion. The
district court asserted that because Rice had filed a notice of
appeal on January 16, it believed it was without jurisdiction to
rule on the motion. The district court stated, however, that this
court required it to take action. Therefore, the court entered
an order in which it found that Rice should be allowed to
proceed in forma pauperis and appointed Ashford as counsel
for Rice.
The appeal in case No. S-14-056 proceeded, and in due
course, we sustained the State’s motion for summary affirm­
ance in an order in which we cited § 29-3001(4)(e) and stated
that Rice’s “petition for postconviction relief is time barred.”
We overruled Rice’s subsequent motion for a rehearing, and
the mandate in case No. S-14-056 was spread on February
6, 2015.
On August 14, 2015, Ashford filed an application in the
district court for the allowance of expenses and fees associ-
ated with the appeal in case No. S-14-056. The application
was accompanied by Ashford’s affidavit and an invoice which
showed fees of $7,133.75, expenses of $249.85, and mileage
of $44.80, for a total request of $7,428.40. After a hearing in
which the State did not contest the requested expenses and
fees, the district court denied the application for attorney
fees. In its order denying the application, the court stated,
“Subsequent to the hearing, this Judge received notice that
he had been sued in the United States District Court by the
applicant herein.” The court then noted that it had denied
postconviction relief and an evidentiary hearing on the basis
that Rice’s claims were both procedurally and time barred. The
court stated, “Although not material to this Order, the Court is
satisfied that the underlying claims for post conviction relief
were frivolous.” The court then stated that “the appeal itself
- 245 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. RICE
Cite as 295 Neb. 241
was frivolous,” and it therefore concluded that “no fees should
be allowed.”
Ashford appealed the district court’s order denying his appli-
cation for attorney fees, resulting in the current appeal, case
No. S-15-932.
While the current appeal was pending, Ashford filed a sug-
gestion of death indicating that Rice had died on March 11,
2016. Ashford later filed a motion for substitution of parties
in which he requested that, if necessary, he or a member of
Rice’s family be substituted for Rice as a party to this appeal.
We ordered the case to proceed to briefing and oral argument
in order to allow us to consider the effect of Rice’s death on
this appeal, the need for a substitution of parties, and the merits
of the appeal.
ASSIGNMENT OF ERROR
Ashford claims that the district court erred when it denied
his application for expenses and fees.
STANDARDS OF REVIEW
[1] Whether a party’s death abates an appeal or cause of
action presents a question of law. In re Conservatorship of
Franke, 292 Neb. 912, 875 N.W.2d 408 (2016).
[2] When attorney fees are authorized, the trial court exer-
cises its discretion in setting the amount of the fee, which
ruling an appellate court will not disturb on appeal unless the
court abused its discretion. State v. Ortega, 290 Neb. 172, 859
N.W.2d 305 (2015).
ANALYSIS
§ 29-3004 Governs Fees for Court-Appointed
Counsel in This Postconviction Proceeding.
As an initial matter, we note that in this appeal, Ashford
contends that he should be allowed attorney fees under Neb.
Rev. Stat. § 29-3905 (Reissue 2016) and relies on case law
applying § 29-3905 to support his argument. Ashford’s reli-
ance on § 29-3905 is misplaced. Section 29-3905 applies to
- 246 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. RICE
Cite as 295 Neb. 241
appointed counsel for a “felony defendant” and should be read
in connection with Neb. Rev. Stat. § 29-3903 (Reissue 2016)
regarding appointment of counsel in “criminal proceedings.”
The underlying action in the present case is Rice’s action for
postconviction relief, and Neb. Rev. Stat. § 29-3004 (Reissue
2016) governs the appointment of counsel and the payment
of fees to appointed counsel in postconviction proceedings.
Therefore, § 29-3004 rather than § 29-3905 controls the allow-
ance of expenses and fees in this case.
Nevertheless, we note that both § 29-3905 and § 29-3004
require that, upon hearing an application by court-appointed
counsel, the court “shall fix reasonable expenses and fees,
and the county board shall allow payment to [court-appointed
counsel] in the full amount determined by the court.” Because
of the similarity in language, case law interpreting § 29-3905
will be relevant to our application of § 29-3004 in this appeal.
This Appeal Concerns Ashford’s Application for
Expenses and Fees Pursuant to § 29-3004, and
Therefore, the Appeal Does Not Abate as a
Result of Rice’s Death and No Substitution
of Parties Is Necessary.
Before considering the merits of this appeal, we must first
address the suggestion of death and the motion for substitution
of parties filed by Ashford. Specifically, we must determine
whether this appeal abates as a result of Rice’s death and
whether a substitution of parties is necessary. We conclude
that in this appeal limited to the challenge to the district
court’s ruling on Ashford’s application for expenses and fees,
Ashford is the proper appellant, the appeal does not abate
as a result of Rice’s death, and no substitution of parties is
necessary. We therefore overrule the motion for substitution
of parties.
[3-5] We have stated that statutory provisions regarding
abatement and revivor of actions apply to cases in which a
party dies pending an appeal. In re Conservatorship of Franke,
- 247 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. RICE
Cite as 295 Neb. 241
292 Neb. 912, 875 N.W.2d 408 (2016). We further stated even
if a party’s death does not abate a cause of action, a substitu-
tion of parties may be required before the action or proceeding
can continue. Id. Regarding an appeal, we have stated that
an abatement can refer to the extinguishment of an appeal
only when the legal right being appealed has become moot
because of a party’s death while the appeal was pending. Id.
We have acknowledged that the reason substitution may be
required is that a deceased person cannot maintain a right of
action against another or defend a legal interest in an action or
proceeding. Id. Given these principles, to determine whether
this appeal abates and whether substitution of parties is neces-
sary, we must consider the legal right at issue in this appeal
and whether such right may be adequately pursued despite
Rice’s death.
[6] The order being appealed in this case concerns Ashford’s
representation of Rice in connection with this postconviction
appointment. Specifically, this appeal is limited to a chal-
lenge to the district court’s order denying Ashford’s applica-
tion for allowance of attorney fees under § 29-3004. In In
re Claim of Rehm and Faesser, 226 Neb. 107, 410 N.W.2d
92 (1987), court-appointed counsel for a criminal defend­
ant filed applications requesting compensation pursuant to
Neb. Rev. Stat. § 29-1804.12 (Reissue 1985), now codified
at § 29-3905. We held in In re Claim of Rehm and Faesser
that “appointed counsel . . . may appeal to this court from an
order determining the amount of fees and expenses allowed
appointed counsel under § [29-3905]” and that “[s]uch an
appeal is a proceeding separate from the [underlying] criminal
case.” 226 Neb. at 113, 410 N.W.2d at 96. See, also, State
v. Ryan, 233 Neb. 151, 444 N.W.2d 656 (1989) (reviewing
attorney’s appeal of order regarding court-appointed counsel’s
fees in criminal case). Our reasoning in these criminal cases
under a similar appointment statute logically applies to the
instant appeal from an attorney-fee ruling in a postconvic-
tion case. We therefore hold that court-appointed counsel in a
- 248 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. RICE
Cite as 295 Neb. 241
postconviction proceeding may appeal to the appellate courts
from an order determining expenses and fees allowed under
§ 29-3004 and that such an appeal is a proceeding separate
from the underlying postconviction proceeding.
As just noted, Ashford has a statutory basis for the right
he asserts in his own behalf both at the trial level and on
appeal. With this understanding of the legal interest at issue
in this appeal, we determine that this appeal from the trial
proceeding for fees under § 29-3004 did not abate and that
no substitution of parties is necessary as a result of Rice’s
death. The legal right at issue is Ashford’s right to expenses
and fees under § 29-3004, payable by the county. Given the
statute, this proceeding involves interests that are personal to
Ashford rather than to Rice. Ashford’s rights under § 29-3004
did not become moot as a result of Rice’s death, and Ashford
remains as a person capable of pursuing such rights. See
Davis v. Rahkonen, 112 Wis. 2d 385, 332 N.W.2d 855 (Wis.
App. 1983) (ruling that death of party to divorce action did
not deprive court of jurisdiction to award attorney fees pursu-
ant to statute).
We conclude that this appeal did not abate as a result of
Rice’s death and that no substitution of parties is necessary.
We therefore overrule the motion for substitution of parties.
We turn to the merits of this appeal.
Pursuant to § 29-3004, District Court Was
Required to Fix Reasonable Expenses and
Fees and Court Abused Its Discretion
When It Concluded That No Fees
Should Be Allowed.
[7,8] Ashford claims that the district court erred when it
denied his application and concluded that no fees should be
allowed. We conclude that after a court has appointed coun-
sel in a postconviction action, § 29-3004 requires the court
to fix reasonable expenses and fees. Therefore, the district
court abused its discretion in this case when it determined
- 249 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. RICE
Cite as 295 Neb. 241
without an examination of reasonableness that no fees should
be allowed.
Section 29-3004 provides that in postconviction proceedings,
[t]he district court may appoint not to exceed two attor-
neys to represent the prisoners in all proceedings under
sections 29-3001 to 29-3004. The district court, upon
hearing the application, shall fix reasonable expenses and
fees, and the county board shall allow payment to the
attorney or attorneys in the full amount determined by the
court. The attorney or attorneys shall be competent and
shall provide effective counsel.
We have held that under the Nebraska Postconviction Act,
whether to appoint counsel to represent the defendant is within
the discretion of the trial court. See State v. Phelps, 286 Neb.
89, 834 N.W.2d 786 (2013). We have further stated that when
the assigned errors in a postconviction petition before the dis-
trict court contain no justiciable issues of law or fact, it is not
an abuse of discretion to fail to appoint counsel for an indigent
defendant. State v. Armendariz, 289 Neb. 896, 857 N.W.2d
775 (2015).
[9] Although appointment of counsel in postconviction
cases is discretionary, § 29-3004 provides that once counsel
has been appointed and appointed counsel has made applica-
tion to the court, the court “shall” fix reasonable expenses and
fees. The language in § 29-3004 regarding expenses and fees
is nearly identical to the language in § 29-3905 stating that
upon hearing appointed counsel’s application, the court “shall”
fix reasonable expenses and fees, and, as we have noted
above, we look to jurisprudence under § 29-3905 for guid-
ance. We have recognized that under § 29-3905, the trial court
exercises its discretion in setting the amount of the fee. State
v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015). However,
such discretion is exercised within the court’s responsibility
to determine “reasonable” expenses and fees. The mandatory
language of both § 29-3905 and § 29-3004, stating that the
court “shall” fix reasonable expenses and fees, does not give
- 250 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. RICE
Cite as 295 Neb. 241
the court the discretion to determine that it will not fix any
expenses and fees.
In case No. S-14-056, we directed the district court to rule
on the outstanding motion to appoint counsel. We did not
direct a particular ruling. At that point, the district court had
discretion to consider the merits of Rice’s claims when decid-
ing whether or not to appoint postconviction counsel. The
district court appointed Ashford as counsel. After Ashford
was appointed as postconviction counsel, § 29-3004 required
the district court, upon application, to fix reasonable expenses
and fees. In its ruling on the application, the district court
failed to consider the reasonableness of Ashford’s requested
expenses and fees; instead, it determined that the appeal of
the denial of the postconviction motion was frivolous and that
therefore, no fees should be awarded. The proper time for a
court to consider frivolousness is when deciding whether to
grant or deny leave to proceed in forma pauperis, see Neb.
Rev. Stat. § 25-2301.02 (Reissue 2016), or when exercising
discretion on whether to grant or deny appointment of post-
conviction counsel, see State v. Robertson, 294 Neb. 29, 881
N.W.2d 864 (2016). Once a trial court grants leave to proceed
in forma pauperis and appoints postconviction counsel, the
court has no discretion under § 29-3004 to deny counsel’s
request for reasonable attorney fees on the ground that the
action to which counsel was appointed was frivolous. Because
the district court focused on the wrong criterion, it abused
its discretion.
[10] With respect to fixing reasonable expenses and fees, we
have stated that to determine proper and reasonable attorney
fees, a court must consider several factors: the nature of the
litigation, the time and labor required, the novelty and dif-
ficulty of the questions raised, the skill required to properly
conduct the case, the responsibility assumed, the care and
diligence exhibited, the result of the suit, the character and
standing of the attorney, and the customary charges of the bar
for similar services. Kercher v. Board of Regents, 290 Neb.
- 251 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. RICE
Cite as 295 Neb. 241
428, 860 N.W.2d 398 (2015). These are also the proper consid-
erations for a court when fixing reasonable expenses and fees
under § 29-3004.
We conclude that the district court abused its discretion
when it determined that because the appeal of the denial of
Rice’s postconviction claims was frivolous, no fees should
be awarded to appointed postconviction counsel Ashford. We
therefore reverse the district court’s order denying Ashford’s
application for expenses and fees.
On Remand, Application Should Be Assigned
to a Different Judge to Determine
Reasonable Expenses and Fees.
Having reversed the district court’s order denying Ashford’s
application for fees, we need to consider two additional mat-
ters: (1) whether we should fix the expenses and fees or
whether we should remand the cause to the district court
to make that determination and (2) whether the application
should be considered by a different judge if the cause is
remanded. We conclude that the cause should be remanded to
the district court and that on remand, the application should
be assigned to a different judge to fix reasonable expenses and
fees under § 29-3004.
Ashford urges this court to direct the district court on
remand to simply award the expenses and fees he requested.
He notes that the State did not oppose his application either
at the district court level or in this appeal. He relies in part on
State v. Lowery, 19 Neb. Ct. App. 69, 798 N.W.2d 626 (2011), in
which he contends the Nebraska Court of Appeals held that
under § 29-3905, the court must award fees in the amount
requested if the State does not object.
In a concurrence in Lowery, then-Court-of-Appeals-Judge
William B. Cassel suggested that in Schirber v. State, 254
Neb. 1002, 581 N.W.2d 873 (1998), this court as a practical
result had created a presumption that fees and expenses must
be granted in the amount requested if the opposing party did
- 252 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. RICE
Cite as 295 Neb. 241
not object or present contrary evidence. Based on the record
in Schirber, we had stated that “where the evidence contained
in the record supports the fact that the moving party’s request
for attorney fees and expenses is a reasonable request . . .
and no other contrary evidence exists or is offered into evi-
dence disputing reasonableness, the request for such reason-
able attorney fees and expenses must be granted.” 254 Neb.
at 1006, 581 N.W.2d at 876. To the extent Schirber created
a presumption that if the opposing party does not object,
fees and expenses must be awarded in the amount requested,
it is disapproved. Particularly in a case such as the present
case, where § 29-3004 requires the court to fix “reasonable”
expenses and fees, the trial court has a duty to determine that
expenses and fees requested are in fact reasonable regardless
of whether the opposing party objects or presents contrary evi-
dence. The trial court’s duty under the statute to set reasonable
expenses and fees is not obviated when the opposing party
fails to resist the request.
In view of the foregoing analysis, we determine that the
present cause should be remanded to the district court for a
determination of whether Ashford’s request sets forth “reason-
able expenses and fees.” See § 29-3004. The district court
has not yet performed this analysis, and we believe the fixing
of reasonable expenses and fees under § 29-3004 should be
done in the first instance by the district court. Accordingly,
we do not determine the expenses and fees in this appeal;
nor do we direct the district court to award a specific amount
upon remand.
Ashford also argues that the specific trial judge in this
case has a conflict with Ashford and therefore should not
have considered Ashford’s application. The trial judge was
not asked to recuse himself, and his failure to recuse himself
was not assigned as error in this appeal. However, because
the trial judge acknowledged in his order denying Ashford’s
application that he had been named as a defendant in a suit
filed by Ashford in federal court, in order to avoid bias or the
- 253 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. RICE
Cite as 295 Neb. 241
appearance of bias, we believe it is prudent that on remand,
Ashford’s application be assigned to a different judge.
CONCLUSION
In this appeal of the district court’s order denying Ashford’s
application for attorney fees, we determine that Ashford is
the proper appellant and that therefore, this appeal was not
abated and no substitution of parties is necessary as a result
of Rice’s death. The motion for substitution of parties in
this court is overruled. We further conclude that because the
court appointed Ashford as postconviction counsel, § 29-3004
required the district court to fix reasonable expenses and fees,
and that the court abused its discretion when it determined
that no fee should be awarded based on the perceived frivo-
lousness of Rice’s appeal. We reverse the order of the district
court awarding no expenses and fees, and we remand the
cause to the district court with directions that the cause be
assigned to a different judge to fix reasonable expenses and
fees under § 29-3004.
Motion for substitution of parties overruled.
R eversed and remanded with directions.