State v. Uhing , 301 Neb. 768 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    12/14/2018 01:10 AM CST
    - 768 -
    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. UHING
    Cite as 
    301 Neb. 768
    State      of   Nebraska,     appellee, v.  Joshua     Uhing,   appellant.
    ___ N.W.2d ___
    Filed November 30, 2018.   No. S-18-375.
    1.	 Jurisdiction. A question of jurisdiction is a question of law.
    2.	 Statutes. Statutory interpretation presents a question of law.
    3.	 Judgments: Appeal and Error. Appellate courts independently review
    questions of law decided by a lower court.
    4.	 Jurisdiction: Appeal and Error. Before reaching the legal issues pre-
    sented for review, it is the power and duty of an appellate court to deter-
    mine whether it has jurisdiction over the matter before it, irrespective of
    whether the issue is raised by the parties.
    5.	 Appeal and Error. Appellate courts do not generally consider argu-
    ments and theories raised for the first time on appeal.
    6.	 Legislature: Courts: Time: Appeal and Error. When the Legislature
    fixes the time for taking an appeal, the courts have no power to extend
    the time directly or indirectly.
    Appeal from the District Court for Douglas County: Peter
    C. Bataillon, Judge. Appeal dismissed.
    Thomas C. Riley, Douglas County Public Defender, Jeanine
    Tlustos, and Lori A. Hoetger for appellant.
    Douglas J. Peterson, Attorney General, and Siobhan E.
    Duffy for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Funke, J.
    Joshua Uhing appeals the district court’s order overrul-
    ing his motion to reconsider the denial of his motion to
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. UHING
    Cite as 
    301 Neb. 768
    transfer to juvenile court under Neb. Rev. Stat. § 29-1816
    (Supp. 2017). For the reasons set forth herein, we dismiss the
    appeal for lack of jurisdiction as untimely under § 29-1816(2)
    and (3)(c).
    BACKGROUND
    Uhing was charged in the district court with two counts of
    sexual assault in the first degree, Class II felonies, and one
    count of incest with a victim age 17 or under, a Class IIA
    felony. The alleged victims were Uhing’s sisters. Uhing was
    born in April 2000 and, on the date the charges were filed, was
    17 years old.
    In October 2017, within 30 days of being charged, Uhing
    filed a motion to transfer to juvenile court. On December 15,
    the court overruled Uhing’s motion to transfer. The court’s
    order noted the significance of the charges, Uhing’s age, the
    likelihood of Uhing’s need for long-term treatment if found
    guilty, the short amount of time Uhing had before reaching
    majority, concern for public safety, and the lack of ability of
    the juvenile court to provide Uhing meaningful benefit. The
    district court thus retained Uhing’s felony charges in adult
    criminal court, and Uhing did not appeal this order.
    On February 8, 2018, Uhing filed a motion captioned
    “Motion to Reconsider Denial of Defendant’s Motion to
    Transfer to Juvenile Court.” The motion did not cite the spe-
    cific statutory or legal authority that provided a basis for the
    motion. Uhing alleged that in the time since the order was
    issued, he underwent an evaluation that recommended offense-
    specific treatment and he was accepted into a youth psycho-
    sexual center which believed Uhing could complete treatment
    prior to his 19th birthday. Uhing claimed that this information
    was unavailable prior to the hearing on the motion to transfer
    and that in the interest of justice, he should be allowed to pre­
    sent evidence of these factual allegations for consideration.
    After a hearing on Uhing’s motion to reconsider, the court
    entered an order on March 19, 2018, overruling the motion.
    The court’s order stated:
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. UHING
    Cite as 
    301 Neb. 768
    [Uhing] has been abused since he has been at least
    ten years old and is alleged to have been involved in
    sexual abuse of his sisters for some time. [Uhing] has sig-
    nificant issues of abuse and neglect, family relationship/­
    abandonment, mood, depression, sexual/mental health,
    and substance abuse. The program[] as set forth in the
    additional evidence is under optimal conditions and it
    does not address the need or length of the aftercare pro-
    grams after the nine month to twelve-month treatment.
    Based upon this additional evidence and the evidence
    offered at the initial hearing on December 8, 2017, this
    Court is still concerned that thirteen and a half months
    is not adequate time to resolve [Uhing’s] significant
    and multiple issues. As such, . . . in consideration of
    all the evidence, and the requirements pursuant to Neb.
    Rev. Stat. § 43-276, this Court still has great concern
    for public safety and the ability of a Juvenile Court to
    provide long term meaningful benefit to [Uhing] in the
    thirteen months that is remaining until his nineteenth
    birthday.
    On April 9, 2018, Uhing appealed the order overruling
    his motion to reconsider. Uhing’s notice of appeal stated:
    “This appeal stems from the Order overruling the Motion
    to Reconsider. Said Order is dated March 19, 2018 and this
    appeal is filed pursuant to LB11 which went into effect March
    29, 2017.” Uhing asserts this court has jurisdiction to consider
    the district court’s order on the motion to reconsider, because
    the underlying order on the motion to transfer was a final,
    appealable order.
    The State, in turn, argues this court lacks jurisdiction of
    the motion to reconsider, because the motion is not a final,
    appealable order. The State asserts that a rule which treats
    as a final, appealable order any order overruling a motion to
    reconsider an order on a motion to transfer is overly broad and
    would undermine appellate deadlines. We granted a petition to
    bypass submitted by the State.
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    STATE v. UHING
    Cite as 
    301 Neb. 768
    ASSIGNMENTS OF ERROR
    Uhing assigns, restated, that the district court abused its
    discretion in overruling his motion to reconsider the court’s
    denial of his motion to transfer to juvenile court, because the
    State failed to meet its burden to show a sound basis for retain-
    ing Uhing’s case in district court.
    STANDARD OF REVIEW
    [1-3] A question of jurisdiction is a question of law.1
    Statutory interpretation presents a question of law.2 Appellate
    courts independently review questions of law decided by a
    lower court.3
    ANALYSIS
    [4] Before reaching the legal issues presented for review,
    it is the power and duty of an appellate court to determine
    whether it has jurisdiction over the matter before it, irrespec-
    tive of whether the issue is raised by the parties.4
    [5] Uhing argues that the denial of a motion to reconsider
    is a final, appealable order.5 In support of this argument,
    Uhing contends, for the first time on appeal, that his motion
    to reconsider was brought under Neb. Rev. Stat. § 25-2001
    (Reissue 2016). However, there is nothing in the record indi-
    cating Uhing ever presented this theory to the district court.
    Appellate courts do not generally consider arguments and
    theories raised for the first time on appeal.6
    
    1 Cl. Ch. v
    . First Nat. Bank of Omaha, 
    296 Neb. 632
    , 
    895 N.W.2d 284
          (2017).
    2
    Id.
    3
    Id.
    4
    Id.
    5
    See Capitol Construction v. Skinner, 
    279 Neb. 419
    , 
    778 N.W.2d 721
          (2010).
    6
    State ex rel. Rhiley v. Nebraska State Patrol, ante p. 241, 
    917 N.W.2d 903
          (2018).
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    STATE v. UHING
    Cite as 
    301 Neb. 768
    Section 29-1816(2) provides alleged juvenile offenders the
    ability to move for a transfer of their case from a county or
    district court to a juvenile court. This motion must be made
    within 30 days after arraignment “unless otherwise permitted
    by the court for good cause shown.”7 Uhing apparently chose
    not to attempt to make this showing of good cause and, thus, is
    left only with taking an appeal.
    Section 29-1816(3)(c) provides the procedure for appealing
    an order on a motion to transfer and states:
    An order granting or denying transfer of the case from
    county or district court to juvenile court shall be con-
    sidered a final order for the purposes of appeal. Upon
    entry of an order, any party may appeal to the Court of
    Appeals within ten days. Such review shall be advanced
    on the court docket without an extension of time granted
    to any party except upon a showing of exceptional cause.
    Appeals shall be submitted, assigned, and scheduled for
    oral argument as soon as the appellee’s brief is due to be
    filed. The Court of Appeals shall conduct its review in
    an expedited manner and shall render the judgment and
    opinion, if any, as speedily as possible.
    Summarized, subsections (2) and (3)(c) of § 29-1816 pro-
    vide that an alleged juvenile offender can move for transfer to
    juvenile court within 30 days of the juvenile’s arraignment and
    that either the juvenile or the State can appeal an order on the
    motion within 10 days of its entry. This procedure is in contrast
    to the typical appeal process in which a party has 30 days from
    the entry of a judgment or final order to appeal the decision
    of a district court unless a party has filed a timely terminat-
    ing motion.8
    In previous appeals of a denial of a motion to transfer to
    juvenile court, we have held that a trial court’s denial of the
    7
    § 29-1816(2).
    8
    See Neb. Rev. Stat. § 25-1912 (Supp. 2017).
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    STATE v. UHING
    Cite as 
    301 Neb. 768
    motion was not a final, appealable order.9 In response to our
    decision in State v. Bluett,10 the Nebraska Legislature amended
    § 29-1816 to include the language that “[a]n order granting or
    denying transfer of the case from county or district court to
    juvenile court shall be considered a final order for the purposes
    of appeal” and to impose the 10-day limitation of the time to
    file the appeal. The Legislature, however, did not include lan-
    guage that filing a motion to reconsider would terminate the
    appeal period.
    Here, Uhing filed the underlying motion to transfer within
    30 days of his arraignment. However, he failed to appeal
    the order denying this motion within the 10 days required
    by § 29-1816(3)(c). Therefore, we lack jurisdiction to con-
    sider any subsequent appeal of the order on Uhing’s motion
    to transfer.
    [6] Uhing’s motion for reconsideration does not cure this
    jurisdictional deficiency. Allowing the appeal of Uhing’s
    motion to reconsider would have the effect of extending the
    time for filing the original appeal. But when the Legislature
    fixes the time for taking an appeal, the courts have no power
    to extend the time directly or indirectly.11 Because the motion
    to reconsider did not extend the time for appeal, which had
    run 10 days after the transfer motion was denied, we lack
    jurisdiction to consider this appeal.
    CONCLUSION
    For the reasons stated above, we dismiss the appeal for lack
    of jurisdiction.
    A ppeal dismissed.
    9
    See State v. Bluett, 
    295 Neb. 369
    , 
    889 N.W.2d 83
    (2016).
    10
    
    Id. 11 State
    v. Lotter, ante p. 125, 
    917 N.W.2d 850
    (2018).