In re Interest of Tyrone K.

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF TYRONE K.
Cite as 295 Neb. 193
In re I nterest of
Tyrone K., a child
under18 years of age.
State of Nebraska, appellee,
v. Tyrone K., appellant.
___ N.W.2d ___
Filed December 2, 2016. No. S-15-1057.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that
does not involve a factual dispute presents a question of law, which an
appellate court independently decides.
2. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case,
as in any other appeal, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
3. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
4. Statutes. It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unambiguous out of
a statute.
5. Statutes: Legislature: Intent. In reading a statute, a court must deter-
mine and give effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
6. ____: ____: ____. Components of a series or collection of statutes
pertaining to a certain subject matter are in pari materia and should
be conjunctively considered and construed to determine the intent of
the Legislature, so that different provisions are consistent, harmonious,
and sensible.
7. Statutes: Courts. A court’s proper role is to interpret statutes and
clarify their meaning.
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IN RE INTEREST OF TYRONE K.
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8. Statutes: Legislature: Public Policy. It is the Legislature’s function
through the enactment of statutes to declare what is the law and public
policy of this state.
9. 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.
10. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
11. 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.
12. ____: ____. A substantial right is not affected for purposes of appeal
when that right can be effectively vindicated in an appeal from the
final judgment.
13. Statutes: Judgments: Juvenile Courts: Appeal and Error. The fact
that the statutory scheme enacted by 2014 Neb. Laws, L.B. 464, con-
tains no specific provision regarding appellate review of juvenile trans-
fer orders does not mean such orders are immune from appellate review
on direct appeal after final judgment.
14. Records: Appeal and Error. It is the appellant’s burden to create a
record for the appellate court which supports the errors assigned.
15. Constitutional Law: Juvenile Courts: Criminal Law. There is no con-
stitutional right to proceed in juvenile court rather than criminal court.
16. Juvenile Courts: Criminal Law. A juvenile whose case may be trans-
ferred to criminal court has no right to have his or her case remain in
juvenile court, and an order transferring such a case from juvenile to
criminal court does not affect a substantial right.
17. 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.
18. Juvenile Courts: Criminal Law. Juveniles whose cases may be trans-
ferred to criminal court, and juveniles whose cases may be directly filed
in criminal court, have no right to avoid the collateral consequences of a
criminal conviction.
Appeal from the Separate Juvenile Court of Lancaster
County: R eggie L. Ryder, Judge. Appeal dismissed.
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IN RE INTEREST OF TYRONE K.
Cite as 295 Neb. 193
Joe Nigro, Lancaster County Public Defender, and Sarah J.
Safarik for appellant.
Joe Kelly, Lancaster County Attorney, and Ashley J. Bohnet
for appellee.
Juliet Summers for amicus curiae Voices for Children in
Nebraska and Christine Henningsen, of Center on Children,
Families and the Law at the University of Nebraska-Lincoln,
for amicus curiae Nebraska Youth Advocates.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Stacy, J.
This case presents the issue of whether an order granting
a motion to transfer a juvenile case to criminal court is final
and appealable. We conclude it is not, and dismiss the appeal
as premature.
I. FACTS
A petition filed in juvenile court on September 4, 2015,
alleged 16-year-old Tyrone K. committed four counts of theft
by receiving stolen property and one count of operating
a motor vehicle to avoid arrest. The charges arose from a
series of vehicle thefts which occurred after Tyrone escaped
from a youth rehabilitation and treatment center. The alleged
law violations were classified as two Class III felonies, a
Class IV felony, and two Class I misdemeanors.1 Due in part
to Tyrone’s extensive history in the juvenile court system, the
prosecutor immediately moved to transfer the proceedings to
county court for arraignment and further proceedings under
the criminal code.2 After conducting an evidentiary hearing,
the juvenile court granted the motion to transfer. Tyrone filed
this appeal. We moved the case to our docket on our own
1
See Neb. Rev. Stat. §§ 28-517, 28-518, and 28-905 (Reissue 2016).
2
See Neb. Rev. Stat. § 43-274(5) (Reissue 2016).
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IN RE INTEREST OF TYRONE K.
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motion pursuant to our statutory authority to regulate the case-
loads of the appellate courts of this state.3
II. STANDARD OF REVIEW
[1] A jurisdictional issue that does not involve a factual
dispute presents a question of law, which an appellate court
independently decides.4
III. ASSIGNMENTS OF ERROR
Tyrone assigns there was insufficient evidence for the juve-
nile court to transfer his case to county court.
IV. ANALYSIS
[2] In a juvenile case, as in any other appeal, it is the duty
of an appellate court to determine whether it has jurisdic-
tion over the matter before it.5 Neb. Rev. Stat. § 43-2,106.01
(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 order at this point in the proceedings depends
on whether Tyrone has appealed from either a judgment or a
final order.
A transfer order is not a judgment, and no party argues oth-
erwise. The transfer order did not address or decide the merits
of the alleged law violations and made no final determination
of the parties’ rights;6 it merely determined the state court
forum in which the case would proceed. Therefore, the thresh-
old question presented here is whether Tyrone has appealed
from a final order.
Tyrone makes two arguments in support of his position that
a transfer order is a final order. First, he argues the Legislature
3
Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
4
See Purdie v. Nebraska Dept. of Corr. Servs., 292 Neb. 524, 872 N.W.2d
895 (2016).
5
In re Interest of Cassandra B. & Moira B., 290 Neb. 619, 861 N.W.2d 398
(2015).
6
See Neb. Rev. Stat. § 25-1301 (Reissue 2016).
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redefined transfer orders as final orders when it enacted 2014
Neb. Laws, L.B. 464. Second, he argues the transfer order is
a final order under Neb. Rev. Stat. § 25-1902 (Reissue 2016),
because it was made in a special proceeding and affects a sub-
stantial right. We address each argument in turn. Before doing
so, however, it is necessary to provide an overview of the rel-
evant statutes.
1. Overview of New
Juvenile Statutes
From 1974 to 2014, when a juvenile committed a law viola-
tion, the relevant juvenile delinquency statutes gave the pros-
ecuting attorney substantial discretion regarding whether to file
charges in criminal court, file delinquency proceedings in juve-
nile court, or offer juvenile pretrial diversion or mediation.7
If the prosecutor elected to file in criminal court, the juvenile
could file a motion asking that the case be transferred to the
juvenile court for further proceedings under the Nebraska
Juvenile Code.8
In 2014, through L.B. 464, the Legislature made significant
changes to this statutory scheme. According to the Introducer’s
Statement of Intent:
Nebraska is one of the few states that allows pros-
ecutors broad authority in deciding whether or not to
file charges in adult or juvenile court. . . . In 2010 in
Nebraska, 45 percent of filings against youth were in
adult court, despite the fact that nearly 90 percent of
charges against youth in adult court were misdemeanors.
Requiring more cases to originate in juvenile court will
give more youth a chance at rehabilitation and reduce
their chance of having a criminal record.9
7
See § 43-274(4) (Reissue 2008) and Neb. Rev. Stat. § 43-276 (Cum. Supp.
2012).
8
Neb. Rev. Stat. § 29-1816 (Cum. Supp. 2012).
9
Introducer’s Statement of Intent, L.B. 464, Judiciary Committee, 103d
Leg., 1st Sess. 1 (Mar. 6, 2013).
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IN RE INTEREST OF TYRONE K.
Cite as 295 Neb. 193
Generally speaking, L.B. 464 limited the discretion of pros-
ecutors to decide whether a case should be filed in juvenile or
criminal court, and replaced it with a three-tiered jurisdictional
structure that specifies the court in which a case should be
filed, depending on the age of the juvenile and the nature of
the alleged law violation. The new jurisdictional structure is
first set out in Neb. Rev. Stat. § 43-246.01 (Reissue 2016).
The relevant sections of L.B. 464 became operative January
1, 2015.10
(a) Exclusive Original Jurisdiction
Section 43-246.01(1) grants exclusive original jurisdiction
to the juvenile court over offenders who (1) are under 16 years
of age and committed a misdemeanor or infraction, other than
a traffic offense, or (2) are under 14 years of age and com-
mitted a felony.11 Proceedings against these juvenile offenders
must always be filed via a juvenile petition and must always
proceed to completion in juvenile court.12 Tyrone does not fall
into this category of juvenile offenders.
(b) Original Jurisdiction
Subject to Transfer
Section 43-246.01(2) grants original jurisdiction to the
juvenile court over juvenile offenders who are (1) 16 years
of age and committed a misdemeanor13 or (2) 14 years of
age or older and committed a felony lesser in grade than a
Class IIA.14 Actions against these juvenile offenders must
always be initiated in juvenile court by filing a juvenile peti-
tion, but are subject to transfer to county or district court
10
2014 Neb. Laws, L.B. 464, § 37.
11
See Neb. Rev. Stat. § 43-247(1) and (2) (Supp. 2015).
12
§ 43-246.01(1).
13
As of January 1, 2017, this jurisdiction also extends to juveniles who are
17 years old, pursuant to § 43-246.01(2)(a).
14
§ 43-246.01(2)(b).
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IN RE INTEREST OF TYRONE K.
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for further p­ roceedings under the criminal code.15 All of the
allegations against Tyrone, except the allegation of operating
a motor vehicle to avoid arrest, put him in this category of
juvenile offenders.
(c) Concurrent Jurisdiction
Section 43-246.01(3) grants to the juvenile court and the
county or district courts concurrent jurisdiction over juvenile
offenders who (1) commit a traffic offense that is not a felony
or (2) are 14 years of age or older and commit a Class I, IA,
IB, IC, ID, II, or IIA felony.16 Actions against these juveniles
may be initiated either in juvenile court or in the county or
district court.17 The allegation against Tyrone of operating a
motor vehicle to avoid arrest put him within this category of
juvenile offenders.
All of the offenses allegedly committed by Tyrone are
offenses over which both the juvenile court and the crimi-
nal court can exercise jurisdiction under the new statutory
scheme. With respect to such offenses, if the action is initiated
in juvenile court, a party can move to transfer it to county or
district court via § 43-274(5) (Reissue 2016), a new statutory
provision created by L.B. 464.18 And if the action is initi-
ated in county or district court, a party can move to transfer
it to juvenile court via § 29-1816 (Reissue 2016).19 Section
29-1816 existed prior to the enactment of L.B. 464, but was
amended by it.
(d) Transfers Under § 43-274(5)
All of the allegations against Tyrone were initiated via a peti-
tion filed in juvenile court, and the prosecutor simultaneously
15
§ 43-246.01(2).
16
§ 29-1816(1)(a)(ii).
17
See §§ 43-246.01(3) and 29-1816.
18
§ 43-246.01(3).
19
§ 29-1816(1)(a)(ii) and (2).
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IN RE INTEREST OF TYRONE K.
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filed a motion to transfer the proceedings to criminal court.
Section 43-274(5) controls in this circumstance. That sec-
tion authorizes a city or county attorney to seek a transfer to
criminal court when both the juvenile court and the criminal
court have statutory jurisdiction.20 It specifies that the trans-
fer motion must be filed with the juvenile court petition, and
requires the juvenile court to schedule a hearing on the motion
within 15 days.21 The city or county attorney has the burden to
prove by a preponderance of the evidence that the case should
be transferred.22 The juvenile court must make a decision
within 30 days of the hearing, and must “set forth findings for
the reason for its decision.”23
(e) Transfers Under § 29-1816
Both before and after L.B. 464, § 29-1816 provided that
if the case is filed in county or district court, at the time of
arraignment, the court must advise the juvenile that he or she
may move at any time not later than 30 days after arraignment
to transfer the case to the juvenile court for further proceedings
under the Nebraska Juvenile Code. If the juvenile so moves,
a hearing must be held within 15 days, and the court “shall”
transfer the case “unless a sound basis exists for retaining the
case.”24 The county or district court must “set forth findings for
the reason for its decision.”25
Prior to L.B. 464, § 29-1816 specifically provided that
the county or district 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.”26 But L.B. 464 removed this
20
§ 43-274(5).
21
Id.
22
Id.
23
Id.
24
§ 29-1816(3)(a).
25
§ 29-1816(3)(b).
26
§ 29-1816(2)(c) (Cum. Supp. 2012).
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IN RE INTEREST OF TYRONE K.
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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. Similarly, § 43-274(5), the
new statute enacted by L.B. 464, is silent regarding whether
a juvenile court’s ruling on a motion to transfer an action to a
county or district court is a final order.
2. L.B. 464 Did Not Determine
Finality of Transfer Orders
Tyrone argues the transfer order is a final, appealable order.
In doing so, he places much significance on the effect of
L.B. 464 on §§ 29-1816 and 43-274(5). He argues 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 he argues that because the Legislature
intended to authorize interlocutory appeals from orders ruling
on motions to transfer from criminal court to juvenile court
under § 29-1816, we should judicially construe § 43-274(5) to
also authorize interlocutory appeals from orders transferring
cases from juvenile court to criminal court.
[3-6] Our analysis of the statutory changes made by L.B. 464
is guided by familiar rules of statutory construction. Statutory
language is to be given its plain and ordinary meaning, and
an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and
unambiguous.27 It is not within the province of a court to read
a meaning into a statute that is not warranted by the language;
neither is it within the province of a court to read anything
plain, direct, or unambiguous out of a statute.28 In reading a
statute, a court must determine and give effect to the purpose
and intent of the Legislature as ascertained from the entire
27
State v. Sikes, 286 Neb. 38, 834 N.W.2d 609 (2013); State v. Parks, 282
Neb. 454, 803 N.W.2d 761 (2011).
28
State v. Warriner, 267 Neb. 424, 675 N.W.2d 112 (2004); State v. Gartner,
263 Neb. 153, 638 N.W.2d 849 (2002).
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language of the statute considered in its plain, ordinary, and
popular sense.29 Components of a series or collection of stat-
utes pertaining to a certain subject matter are in pari materia
and should be conjunctively considered and construed to deter-
mine the intent of the Legislature, so that different provisions
are consistent, harmonious, and sensible.30
We find nothing in the legislative history, and the parties
direct us to nothing, suggesting why the nonfinal order lan-
guage of § 29-1816 was removed. Tyrone argues the removal
of the language is significant in and of itself, based on the
general rule that the Legislature is presumed to know the
language used in its statutes, and if in a subsequent act on
the same or similar subject it uses different terms in the same
connection, a court should presume that a change in the law
was intended.31
We are not convinced that this principle of statutory con-
struction applies under these circumstances. Here, language
prohibiting an interlocutory appeal was removed by L.B. 464,
but no different terms were substituted in the same connection.
Deleting a negative does not automatically create a positive.
Moreover, when articulating the procedure to be followed
after a transfer order is granted by the juvenile court, the
Legislature left no room in the statutory process for interlocu-
tory appeal, providing instead:
If the proceeding is transferred from juvenile court to the
county court or district court, the county attorney or city
attorney shall file a criminal information in the county
court or district court, as appropriate, and the accused
shall be arraigned as provided for a person eighteen years
of age or older . . . .32
29
State v. Mucia, 292 Neb. 1, 871 N.W.2d 221 (2015); State v. Huff, 282
Neb. 78, 802 N.W.2d 77 (2011).
30
State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012).
31
See Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).
32
§ 43-274(5).
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Generally, when the Legislature has authorized interlocu-
tory appeals from orders entered in ongoing criminal cases,
it has done so expressly and has set out detailed and specific
procedures for such appeals which balance the interests of the
litigants and the interests of justice.33 In contrast, L.B. 464
contains no specific procedures governing appellate review
of transfer orders, and the statutory procedure the prosecutor
is to follow after a transfer order is granted appears designed
to facilitate timely resolution of the criminal matter, not inter-
locutory appeal.
Although Tyrone urges us to conclude otherwise, we are not
persuaded that anything meaningful can be gleaned from the
fact that § 43-274(5) is silent regarding the finality of a juve-
nile court’s order on a motion to transfer a case to county or
district court. We note that when L.B. 464 first was introduced,
§ 43-274 contained a provision that a juvenile court’s decision
to transfer proceedings to criminal court “shall be a final order
for the purpose of enabling an appeal.”34 But that final order
language was omitted from § 43-274 during the legislative
proc­ess, and we find nothing in the legislative history explain-
ing why this language was removed. Tyrone urges us to inter-
pret § 43-274(5) to supply by implication the very language
which the Legislature pointedly rejected. We decline to do so.
It is not within the province of the courts to read a meaning
into a statute that is not there.35
Considering §§ 29-1816 and 43-274 together, we observe
that when enacting L.B. 464, the Legislature removed language
from § 29-1816 that prevented transfer orders from being
final and appealable, and also removed proposed language
from § 43-274 that would have made transfer orders final and
33
See, e.g., Neb. Rev. Stat. §§ 29-116 through 29-118 and 29-824 through
29-826 (Reissue 2016).
34
Introduced Copy, L.B. 464, Judiciary Committee, 103d Leg., 1st Sess. 14
(Jan. 22, 2013).
35
Republic Bank v. Lincoln Cty. Bd. of Equal., 283 Neb. 721, 811 N.W.2d
682 (2012); Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004).
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appealable. Consequently, after L.B. 464, we are left with juve-
nile transfer statutes that are uniformly silent on whether any
transfer orders are final and appealable.
[7,8] The briefing submitted to this court advances several
public policy arguments both for and against authorizing
interlocutory appellate review of transfer orders in juvenile
cases. But a court’s proper role is to interpret statutes and
clarify their meaning,36 and it is the Legislature’s function
through the enactment of statutes to declare what is the law
and public policy of this state.37 Within the proper confines
of established rules of statutory construction, we find nothing
which permits the conclusion that the Legislature intended,
by either silence or omission, to affirmatively confer a statu-
tory right of interlocutory appeal from an order on a motion
to transfer 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.
3. Transfer Orders A re Not Final
Orders Under § 25-1902
[9] Under § 25-1902, 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 sub-
stantial right made on summary application in an action after
a judgment is rendered.38 The order here neither determined
36
State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).
37
In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012).
38
Shasta Linen Supply v. Applied Underwriters, 290 Neb. 640, 861 N.W.2d
425 (2015).
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the action and prevented a judgment; nor was the order made
on summary application after judgment. As such, the transfer
order is final and appealable only if it was made during a spe-
cial proceeding and affected a substantial right.
The transfer decision was made by the juvenile court, and as
a general rule, juvenile delinquency proceedings are considered
special proceedings.39 For purposes of this appeal, we assume
without deciding that the transfer order at issue was made in
a special proceeding. We focus our analysis on whether the
order from which Tyrone appeals affected a substantial right.
Specifically, the question presented is whether a substantial
right of a juvenile is affected when the juvenile court grants
the prosecutor’s motion to transfer a case to county court and
both the juvenile court and the county court have statutory
authority to resolve the proceeding.
[10-12] A substantial right is an essential legal right, not
a mere technical right.40 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.41 A
substantial right is not affected for purposes of appeal when
that right can be effectively vindicated in an appeal from the
final judgment.42
In asserting that the transfer order is final and appealable,
Tyrone presents three general arguments. First, he argues that if
an interlocutory appeal is not allowed now, he will forever lose
his right to appeal from the transfer order. Second, he argues
that the transfer order affects a substantial right, because a
39
See In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007).
40
In re Interest of Octavio B. et al., 290 Neb. 589, 861 N.W.2d 415 (2015);
In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
41
Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012);
In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).
42
See, Schropp Indus. v. Washington Cty. Atty.’s Ofc., 281 Neb. 152, 794
N.W.2d 685 (2011); State v. Vela, 272 Neb. 287, 721 N.W.2d 631 (2006).
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juvenile whose criminal charges are tried in county or district
court is denied timely access to rehabilitative services such as
pretrial evaluations, plans, and services. Third, he argues that
the transfer order affects a substantial right, because a convic-
tion in criminal court exposes him to collateral consequences
in the form of loss of civil rights and privileges that are not at
issue in juvenile proceedings.
(a) Appealing Transfer Order
After Final Judgment
Prior to L.B. 464, we regularly reviewed errors assigned to
a trial court’s ruling on a motion to transfer, and we did so at
the conclusion of the criminal case as part of the direct appeal
of the conviction and sentence.43 Tyrone argues that under the
statutory scheme enacted by L.B. 464, he cannot effectively
challenge the transfer order at the conclusion of the criminal
proceedings. We disagree.
Other jurisdictions addressing this question have concluded
that a juvenile may appeal an order transferring his or her
cause to criminal court at the conclusion of the criminal pro-
ceedings.44 Indeed, several courts conclude this is the prefer-
able procedure. As one court reasoned:
“To permit interlocutory review of [a transfer] order
would obviously delay the prosecution of any proceeding
43
See, State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (2015); State
v. Stevens, 290 Neb. 460, 860 N.W.2d 717 (2015); State v. Mantich, 249
Neb. 311, 543 N.W.2d 181 (1996); State v. Reynolds, 247 Neb. 608, 529
N.W.2d 64 (1995); State v. Ice, 244 Neb. 875, 509 N.W.2d 407 (1994);
State v. Nevels, 235 Neb. 39, 453 N.W.2d 579 (1990).
44
See, People v. Browning, 45 Cal. App. 3d 125, 119 Cal. Rptr. 420 (1975),
overruled on other grounds, People v. Williams, 16 Cal. 3d 663, 547 P.2d
1000, 128 Cal. Rptr. 888 (1976); People in Int. of D.H., 37 Colo. App.
544, 552 P.2d 29 (1976); Interest of Clay, 246 N.W.2d 263 (Iowa 1976);
In re Appeal No. 961, 23 Md. App. 9, 325 A.2d 112 (1974); Interest of
Watkins, 324 So. 2d 232 (Miss. 1975); In re T. J. H., 479 S.W.2d 433 (Mo.
1972); In re Becker, 39 Ohio St. 2d 84, 314 N.E.2d 158 (1974); In re D.H.,
No. 27074, 2016 WL 4168867 (Ohio App. July 1, 2016).
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in either the juvenile or the criminal division, with the
result that the prospect of a just disposition would be
jeopardized. In either proceeding the primary issue is
the ascertainment of the innocence or guilt of the person
charged. To permit interlocutory review [of a transfer
order] would subordinate that primary issue and defer
its consideration while the question of the punishment
appropriate for a suspect whose guilt has not yet been
ascertained is being litigated in reviewing courts. . . .”45
Tyrone’s concern appears to be premised on the lack of
statutory direction as to how to attain appellate review of the
transfer order when a case is transferred from juvenile to crimi-
nal court. Section 43-274(5) provides:
If the proceeding is transferred from juvenile court to the
county court or district court, the county attorney or city
attorney shall file a criminal information in the county
court or district court, as appropriate, and the accused
shall be arraigned as provided for a person eighteen years
of age or older in . . . § 29-1816.
Tyrone argues this language prevents him from appealing the
transfer order at the conclusion of the criminal proceedings,
but it is not entirely clear from his briefing why he believes
this is so.
To the extent Tyrone’s argument turns on the absence of a
clear statutory directive regarding the procedure by which a
party may seek appellate review of a juvenile court’s transfer
order, we agree L.B. 464 did not include express provisions in
that regard.
[13] But contrary to Tyrone’s argument, the fact that the
statutory scheme enacted by L.B. 464 contains no specific pro-
vision regarding appellate review of juvenile transfer orders
does not mean that transfer orders are somehow immune from
45
In re Becker, supra note 44, 39 Ohio St. 2d at 86, 314 N.E.2d at 159. See,
also, Interest of Clay, supra note 44; Interest of Watkins, supra note 44;
State v. Thomas, 970 S.W.2d 425 (Mo. App. 1998); In re Joseph T., 575
A.2d 985 (R.I. 1990).
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appellate review on direct appeal after final judgment. We
have not been directed to anything in the statutory scheme or
in our court rules which would prevent a juvenile, on direct
appeal from a criminal judgment, from requesting and pre-
senting a sufficient record to support an assignment of error
related to the juvenile transfer order which authorized the fil-
ing of the criminal proceedings.
We acknowledge that our current rules of appellate pro-
cedure, which were promulgated prior to the enactment of
L.B. 464, were not designed to address and did not contem-
plate the need to create an appellate record from multiple
courts with concurrent jurisdiction over a particular matter.46
But the provisions of our current court rules do not support
Tyrone’s fundamental premise that error related to the transfer
order cannot effectively be reviewed on direct appeal from any
final judgment in the criminal case.
[14] It is the appellant’s burden to create a record for this
court which supports the errors assigned.47 Under the exist-
ing appellate rules, there is nothing preventing an appellant
from filing a praecipe in each court “from which the appeal
is taken,”48 directing the clerk to prepare the transcript neces-
sary to support the assigned errors.49 Likewise, nothing would
preclude an appellant from filing a praecipe to prepare a bill
of exceptions in each such court, with a copy delivered to the
proper court reporting personnel.50 The concerns articulated by
Tyrone do not support the conclusion that he will be prevented
from obtaining appellate review of the transfer order unless he
is permitted to appeal immediately.
46
See, generally, Neb. Ct. R. App. P. § 2-104 and § 2-105 (rev. 2010).
47
See, Centurion Stone of Neb. v. Whelan, 286 Neb. 150, 835 N.W.2d 62
(2013); InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12
(2012).
48
§ 2-104(A)(1).
49
See § 2-104(A)(1) and (2).
50
See, generally, § 2-105.
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(b) Substantial Right to Rehabilitative
Services in Juvenile Court
Tyrone argues he has a substantial right to proceed in juve-
nile court and receive timely access to the rehabilitative serv­
ices available in that forum. This argument is premised on the
assumption that because he was a minor at the time the alleged
offenses were committed, he has a right to have his case pro-
ceed in juvenile court.
There is only one Nebraska case addressing this general
premise. In State v. Meese,51 a confidential informant pur-
chased marijuana from a 16-year-old juvenile in May 1996.
The juvenile was not charged or arrested until October 1997.
She was nearly 18 years old at that time, and the charges
were filed in county court. The juvenile moved to transfer
the proceedings to juvenile court, and the county court denied
her motion. The criminal case was then bound over to district
court for trial.
[15] Prior to trial, the juvenile filed a motion to discharge.
She argued the State’s delay in charging her violated her right
to due process of law, because it resulted in the county court,
rather than the juvenile court, handling the case. We held she
had not appealed from a final order. In doing so, we noted
there is no constitutional right to proceed in juvenile court
rather than criminal court, and we observed that on several
occasions, we had waited until after any conviction and sen-
tence to review the validity of a trial court’s decision on a
motion to transfer. We also explicitly stated “the loss of access
to juvenile court itself does not affect a substantial right.”52
Tyrone emphasizes that Meese was decided at a time when
§ 29-1816 specifically provided that the decision on a motion
to transfer to juvenile court was not a final order, and thus he
argues that Meese is not persuasive authority in light of the cur-
rent version of that statute, which contains no such language.
51
State v. Meese, 257 Neb. 486, 599 N.W.2d 192 (1999).
52
Id. at 495, 599 N.W.2d at 199.
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While we acknowledge the change in statutory language, we
conclude it does not affect our reasoning in Meese.
This is so, in large part, because the current statutory
language is not inconsistent with the statutory language in
effect when Meese was decided. As noted earlier, the cur-
rent version of § 29-1816 simply omits the language that
specifically stated an order transferring a case from criminal
court to juvenile court was not final and appealable. Thus,
at most, the current version is silent as to whether a right to
interlocutory appeal exists from such an order, whereas the
former version expressly stated there was no such right. This
difference in the statutory language does not undermine the
holding in Meese.
[16] More important, despite Tyrone’s arguments to the
contrary, the jurisdictional changes brought about by L.B. 464
did not create a right to have his alleged offenses proceed in
juvenile court rather than criminal court. It is true that when
enacting L.B. 464, the Legislature sought to create a statutory
scheme that would result in more alleged law violations against
juveniles being filed in and resolved in juvenile court.53 And
under that statutory scheme, a certain category of juveniles
do have the right to proceed exclusively in juvenile court.54
Tyrone, however, is not one of those juveniles. Given his
age and the nature of his alleged offenses, the current statute
required that three of the four offenses against Tyrone must be
originally filed in juvenile court.55 But because all of Tyrone’s
alleged offenses are those which can, upon proper motion and
showing, be transferred to criminal court,56 Tyrone has no right
under the current statutory scheme to have his case remain in
juvenile court, so the order transferring his case does not affect
a substantial right.
53
See Introducer’s Statement of Intent, supra note 9.
54
See § 43-246.01(1).
55
See § 43-246.01(2).
56
See, § 43-246.01(2) and (3); § 43-274(5).
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[17] Our reasoning in Meese was thus not affected by the
changes in the statutory scheme. Even after L.B. 464, access to
juvenile court is a statutory right granted and qualified by the
Legislature; it is not a constitutional imperative. As such, we
conclude the transfer of Tyrone’s case from juvenile court to
criminal court did not affect a substantial right.
Our holding in this regard does not ignore the importance
of the unique opportunities and the juvenile-centered pro-
grams available in juvenile court. But in Nebraska, the possi-
bility of disposition under the juvenile code remains available
to juveniles even if their case is transferred from juvenile
to criminal court. Neb. Rev. Stat. § 29-2204.02(4) (Supp.
2015) provides:
If the defendant was under eighteen years of age at the
time he or she committed the crime for which he or she
was convicted, the court may, in its discretion, instead of
imposing the penalty provided for the crime, make such
disposition of the defendant as the court deems proper
under the Nebraska Juvenile Code.
Tyrone concedes that § 29-2204.02(4) allows a juvenile tried
in criminal court to receive disposition under the juvenile code.
But he contends that the code also allows for pretrial juvenile
services, while a criminal action does not, and he argues that
transferring the case to criminal court has deprived him of
the substantial right to receive preadjudication evaluations
and rehabilitative services available in juvenile court. Again,
however, under the current statutory scheme, Tyrone has no
right to receive the rehabilitative services under the juvenile
code, because both the juvenile court and the criminal court
have jurisdiction over his case. A delay in receiving services
to which he has no statutory right does not affect a substan-
tial right.
(c) Exposure to Collateral Consequences
of Criminal Conviction
[18] Finally, Tyrone argues the transfer of his case to crimi-
nal court affects a substantial right, because a finding of guilt
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would expose him to the collateral consequences of a criminal
conviction. It is true that an adjudication of delinquency on
the same charges would not result in a criminal record or the
loss of civil rights. But as we noted previously, under the stat-
utory scheme enacted by L.B. 464, juveniles whose cases may
be transferred to criminal court, and juveniles whose cases
may be directly filed in criminal court, have no right to avoid
the collateral consequences of a criminal conviction. And of
course, not all of the collateral consequences of a transfer
from juvenile to criminal court are disadvantageous to juve-
niles. A transfer makes available rights that are restricted or
unavailable in juvenile court, such as the right to a jury trial,57
the right to a speedy trial,58 and the full panoply of criminal
procedural rights.
V. CONCLUSION
For the foregoing reasons, we conclude the transfer order
from which Tyrone appeals is not a final order. The appeal
is dismissed.
A ppeal dismissed.
57
Neb. Const. art. I, §§ 6 and 11; Neb. Rev. Stat. § 29-2004 (Reissue 2016).
58
U.S. Const. Amend. VI; Neb. Const. art. I, § 11; Neb. Rev. Stat. § 29-1207
(Reissue 2016).