In re Interest of Sandrino T. , 295 Neb. 270 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/09/2016 09:08 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF SANDRINO T.
Cite as 295 Neb. 270
In re I nterest of Sandrino T., a child
under 18 years of age.
State of Nebraska, appellee, v.
Sandrino T., appellant.
In re Interest of R emus M., a child
under 18 years of age.
State of Nebraska, appellee, v.
R emus M., appellant.
___ N.W.2d ___
Filed December 9, 2016. Nos. S-15-1084, S-15-1087.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
2. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case,
as in any other appeal, before reaching the legal issues presented for
review it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.
3. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902
(Reissue 2016), an appellate court may review three types of final
orders: (1) an order affecting a substantial right in an action that, in
effect, determines the action and prevents a judgment; (2) an order
affecting a substantial right made during a special proceeding; and (3)
an order affecting a substantial right made on summary application in an
action after a judgment is rendered.
4. Words and Phrases. A substantial right is an essential legal right, not a
mere technical right.
5. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as diminishing
a claim or defense that was available to an appellant before the order
from which an appeal is taken.
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IN RE INTEREST OF SANDRINO T.
Cite as 295 Neb. 270
6. ____: ____. A substantial right is not affected for purposes of appeal
when that right can be effectively vindicated in an appeal from the
final judgment.
7. Constitutional Law: Juvenile Courts: Criminal Law. There is no
constitutional right to proceed in juvenile court rather than crimi-
nal court.
8. Constitutional Law: Juvenile Courts: Legislature. Access to juvenile
court is a statutory right granted and qualified by the Legislature; it is
not a constitutional imperative.
Appeals from the Separate Juvenile Court of Lancaster
County: R eggie L. Ryder, Judge. Appeals dismissed.
Joe Nigro, Lancaster County Public Defender, and George
C. Dungan for appellant in No. S-15-1084.
Steffanie Garner Kotik, of Kotik & McClure Law, for appel-
lant in No. S-15-1087.
Joe Kelly, Lancaster County Attorney, and Christopher M.
Reid for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
Sandrino T. and Remus M. were each charged in the sepa-
rate juvenile court of Lancaster County with six counts in con-
nection with automated teller machine (ATM) “skimming.” In
each case, the State filed a motion to transfer to county court.
A consolidated hearing was held on the motions to transfer,
and after the hearing, the juvenile court granted the motions in
separate orders. Both Sandrino and Remus appeal. Sandrino’s
appeal is case No. S-15-1084. Remus’ appeal is case No.
S-15-1087. We consolidate the cases on appeal for disposition.
The primary issue before us is whether the orders transferring
the cases from juvenile court to county court are final and
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IN RE INTEREST OF SANDRINO T.
Cite as 295 Neb. 270
appealable. We determine that the transfer orders are not final
orders, and we therefore dismiss each appeal based on lack
of jurisdiction.
STATEMENT OF FACTS
On September 28, 2015, the State filed separate petitions
in juvenile court against Sandrino and Remus. The petitions
alleged that they committed three counts of attempted unlaw-
ful manufacture of a financial transaction device and three
counts of criminal possession of a forgery device. The alleged
violations were classified as three Class IIIA felonies and three
Class IV felonies.
The charges arose from Sandrino’s and Remus’ alleged
involvement with an operation that used skimming devices and
cameras on ATM’s to collect credit card, debit card, and per-
sonal identification numbers from cards that are inserted into
an ATM. The information thus obtained can then be utilized
to create a “clone” card that could be used to withdraw money
from an ATM or purchase items in a store or online, or the
obtained information could be sold to another party. According
to the State’s evidence, the operation was conducted nation-
wide by a group made up primarily of Romanian citizens who
were brought to the United States for the purpose of furthering
the operation.
Dental examinations were conducted on Sandrino and Remus
to help narrow down their ages. Based on the results of the
dental examinations, Remus was between 161⁄2 and 17 years old
and Sandrino was between 161⁄2 and 171⁄2 years old, although
Sandrino could possibly have been 18 years old.
After filing the petitions, the State moved to transfer each
case to county court for arraignment and further proceedings
under the criminal code. See Neb. Rev. Stat. § 43-274(5)
(Reissue 2016). After a consolidated evidentiary hearing, the
juvenile court granted the motions.
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295 Nebraska R eports
IN RE INTEREST OF SANDRINO T.
Cite as 295 Neb. 270
Sandrino and Remus appeal from the orders of the juvenile
court which granted the State’s motions to transfer the cases
from juvenile court to county court.
ASSIGNMENTS OF ERROR
Sandrino and Remus each claim that the juvenile court erred
when it determined that the evidence was sufficient to transfer
their cases from juvenile court to county court.
STANDARD OF REVIEW
[1] A jurisdictional issue that does not involve a factual
dispute presents a question of law. In re Adoption of Jaelyn B.,
293 Neb. 917, 883 N.W.2d 22 (2016).
ANALYSIS
The cases against Sandrino and Remus were brought in
juvenile court pursuant to Neb. Rev. Stat. § 43-246.01 (Reissue
2016). Section 43-246.01(2) grants original jurisdiction to
the juvenile court over juvenile offenders who are “(a) . . .
sixteen years of age” and committed a misdemeanor or “(b)
. . . fourteen years of age or older” and committed a felony
lesser in grade than a Class IIA. According to the record, both
Sandrino and Remus were at least 16 years old. Six allegations
were brought against each juvenile; three of the allegations
were Class IIIA felonies, and three were Class IV felonies.
Therefore, both Sandrino and Remus were in the category
of juveniles whose cases are initiated in juvenile court under
§ 43-246.01(2).
Although actions against juvenile offenders who fall under
§ 43-246.01(2) must always be initiated in juvenile court
by filing a juvenile petition, they are subject to transfer to
county or district court for further proceedings under the
criminal code. § 43-246.01(2). In this opinion, we sometimes
refer to county and district courts as the “criminal court.” As
noted, the State filed motions to transfer each case to county
court under § 43-274(5) and the juvenile court granted the
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IN RE INTEREST OF SANDRINO T.
Cite as 295 Neb. 270
motions. These are the orders from which Sandrino and
Remus appeal.
[2] In a juvenile case, as in any other appeal, before reach-
ing the legal issues presented for review, it is the duty of an
appellate court to determine whether it has jurisdiction over
the matter before it. See In re Interest of Cassandra B. &
Moira B., 290 Neb. 619, 861 N.W.2d 398 (2015). Neb. Rev.
Stat. § 43-2,106.01(1) (Reissue 2016) gives an appellate court
jurisdiction to review “[a]ny final order or judgment entered
by a juvenile court . . . .” Whether we have jurisdiction to
review the juvenile court’s transfer orders at this point in the
proceedings depends on whether Sandrino and Remus have
appealed from a final order or judgment. No party argues that
the transfer orders were judgments, so the question is whether
the transfer orders are final orders.
Both Sandrino and Remus contend that the transfer orders in
these cases are final, appealable orders. They each argue that
the Legislature effectively redefined transfer orders as final
orders when it enacted 2014 Neb. Laws, L.B. 464. We reject
this argument.
We recently provided an overview of L.B. 464 and its effect
on various statutes in In re Interest of Tyrone K., ante p. 193,
___ N.W.2d ___ (2016). One such statute is Neb. Rev. Stat.
§ 29-1816 (Reissue 2016), which generally concerns transfers
from county and district court to juvenile court. As we observed
in In re Interest of Tyrone K., prior to L.B. 464, § 29-1816
(Cum. Supp. 2012) specifically provided that the county or dis-
trict court’s ruling on a motion to transfer an action to juvenile
court “shall not be a final order for the purpose of enabling an
appeal.” L.B. 464 removed the quoted language, and § 29-1816
(Reissue 2016) is now silent as to the finality of an order ruling
on a motion to transfer a case from criminal court to juvenile
court. In re Interest of Tyrone K., supra. As noted, § 43-274(5)
concerns transfers from juvenile court to county or district
court. Section 43-274(5), the new statute enacted by L.B. 464,
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295 Nebraska R eports
IN RE INTEREST OF SANDRINO T.
Cite as 295 Neb. 270
is silent regarding whether a juvenile court’s order ruling on a
motion to transfer an action from juvenile court to county or
district court is a final order.
Sandrino and Remus argue that by deleting the nonfinal
order language from § 29-1816, the Legislature intended to
authorize interlocutory appeals from orders ruling on motions
to transfer from criminal court to juvenile court, and they
further argue that we should judicially construe § 43-274(5)
to also authorize interlocutory appeals from orders transfer-
ring cases from juvenile court to criminal court. As explained
below, we do not adopt Sandrino’s and Remus’ suggested
reading of the transfer statutes.
We recently addressed arguments comparable to those
advanced here in In re Interest of Tyrone K., supra, a case
with similar procedural facts. In that case, a petition was filed
against the appellant in juvenile court and the State filed a
motion to transfer to criminal court. The appellant filed an
appeal from the order which granted the motion to transfer.
With respect to the appellant’s argument that by virtue of
L.B. 464, the Legislature intended to allow for interlocutory
appeals of orders transfering a case from juvenile court to
criminal court, we stated:
Within the proper confines of established rules of statu-
tory construction, we find nothing which permits the
conclusion that the Legislature intended, by either silence
or omission, to affirmatively confer a statutory right of
interlocutory appeal from an order on a motion to trans-
fer a case from criminal court to juvenile court, or vice
versa. We conclude that when the Legislature removed
the final order language from § 29-1816 without adding
any different language pertaining to finality, it left to the
judiciary the familiar task of applying Nebraska’s final
order statute, § 25-1902, to determine whether transfer
orders are final and appealable.
In re Interest of Tyrone K., ante at 204, ___ N.W.2d at ___.
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295 Nebraska R eports
IN RE INTEREST OF SANDRINO T.
Cite as 295 Neb. 270
[3] Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), an
appellate court may review three types of final orders: (1) an
order affecting a substantial right in an action that, in effect,
determines the action and prevents a judgment; (2) an order
affecting a substantial right made during a special proceeding;
and (3) an order affecting a substantial right made on sum-
mary application in an action after a judgment is rendered. See
Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880
N.W.2d 906 (2016). The orders at issue in the instant appeals
neither determined the actions and prevented judgments nor
were made on summary applications after judgments. As such,
the transfer orders are final and appealable only if they
were made during special proceedings and affected substan-
tial rights.
The transfer orders were issued by the juvenile court, and
as a general rule, juvenile delinquency proceedings are con-
sidered special proceedings. In re Interest of Tyrone K., ante
p. 193, ___ N.W.2d ___ (2016). For purposes of these appeals,
we assume without deciding that the transfer orders at issue
were made in a special proceeding. See id. Therefore, we will
focus our analysis on whether the transfer orders affected sub-
stantial rights.
[4-6] Sandrino and Remus generally argue that their sub-
stantial rights were affected because if they are not allowed to
file interlocutory appeals of the transfer orders, they will lose
their rights to appeal the rulings and they will be prohibited
from accessing the rehabilitative services of the juvenile court
in a timely manner. We have stated that a substantial right is
an essential legal right, not a mere technical right. Id.; In re
Adoption of Madysen S. et al., 293 Neb. 646, 879 N.W.2d 34
(2016). A substantial right is affected if an order affects the
subject matter of the litigation, such as diminishing a claim
or defense that was available to an appellant before the order
from which an appeal is taken. In re Interest of Tyrone K.,
supra. A substantial right is not affected for purposes of appeal
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IN RE INTEREST OF SANDRINO T.
Cite as 295 Neb. 270
when that right can be effectively vindicated in an appeal from
the final judgment. Id.
Sandrino and Remus argue that if they are not allowed
to immediately appeal from the transfer orders, they would
not be able to appeal the transfer orders at the conclusion
of the criminal proceedings, because the language of neither
§ 29-1816 nor § 43-274(5) would allow for such an appeal at
the conclusion of the criminal proceedings. Because an appeal
is available, we disagree. In In re Interest of Tyrone K., we
concluded that “the fact that the statutory scheme enacted by
L.B. 464 contains no specific provision regarding appellate
review of juvenile transfer orders does not mean that transfer
orders are somehow immune from appellate review on direct
appeal after final judgment.” Ante at 207-08, ___ N.W.2d
at ___.
[7] Sandrino and Remus further argue that they have a sub-
stantial right to proceed in juvenile court and receive timely
access to the rehabilitative services available in that forum. We
rejected a similar argument in In re Interest of Tyrone K., ante
p. 193, ___ N.W.2d ___ (2016). In In re Interest of Tyrone K.,
we observed that in State v. Meese, 257 Neb. 486, 599 N.W.2d
192 (1999), we had determined that there is no constitutional
right to proceed in juvenile court rather than criminal court.
We had further observed in Meese that on several occasions,
we had waited until after any conviction and sentence to
review the validity of a criminal trial court’s decision denying
a juvenile’s motion to transfer from criminal court to juvenile
court. We also noted in In re Interest of Tyrone K., ante at 209,
___ N.W.2d at ___, that we had explicitly stated in Meese that
“‘the loss of access to juvenile court itself does not affect a
substantial right.’”
[8] Our reasoning in Meese was not affected by the changes
in the statutory scheme by L.B. 464, and we stated in In re
Interest of Tyrone K. that “[e]ven after L.B. 464, access to
juvenile court is a statutory right granted and qualified by
the Legislature; it is not a constitutional imperative.” Ante at
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IN RE INTEREST OF SANDRINO T.
Cite as 295 Neb. 270
211, ___ N.W.2d at ___. Accordingly, we concluded in In re
Interest of Tyrone K. that the transfer of the appellant’s case
from juvenile court to criminal court did not affect a sub-
stantial right. We similarly conclude in these appeals that the
transfer of Sandrino’s and Remus’ cases from juvenile court to
county court did not affect their substantial rights and that the
orders are not appealable at this time.
CONCLUSION
For the reasons stated above, we conclude that the juvenile
court’s orders transferring Sandrino’s and Remus’ cases from
juvenile court to county court are not final, appealable orders.
Accordingly, we lack jurisdiction, do not reach the merits of
these appeals, and dismiss these appeals.
A ppeals dismissed.