State v. Dye

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Nebraska A dvance Sheets
291 Nebraska R eports
STATE v. DYE
Cite as 291 Neb. 989
State of Nebraska, appellee, v.
Brandon Dye, appellant.
___ N.W.2d ___
Filed October 23, 2015. No. S-14-792.
1. Waiver: Appeal and Error. The validity of an appeal waiver is a ques-
tion of law.
2. Judgments: Appeal and Error. When dispositive issues on appeal
present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
3. Constitutional Law: Waiver: Appeal and Error. A defendant can
waive a constitutional right, including the right to appeal, if done know-
ingly and voluntarily.
4. Convictions: Sentences: Waiver: Appeal and Error. When a defend­
ant appeals a conviction or sentence despite having waived his or her
right to appeal, an appellate court should enforce the waiver only after
having reviewed (1) whether the appeal falls within the scope of the
waiver, (2) whether the defendant knowingly and voluntarily waived his
or her right to appeal, and (3) whether enforcing the waiver would result
in a miscarriage of justice.
5. Waiver: Proof: Appeal and Error. The burden of proof is on the State
to demonstrate that an agreement clearly and unambiguously waives a
defendant’s right to appeal.
6. Waiver: Appeal and Error. Waivers of the right to appeal are to be
applied narrowly, with any ambiguities construed against the State and
in favor of the defendant’s right to appeal.
7. Sentences: Waiver: Appeal and Error. Even when a defendant has
made a valid waiver of appeal rights, an appellate court may reverse a
sentence that is outside of statutory limits or otherwise not authorized
by law.
8. Waiver: Appeal and Error. Once an appellate court has determined
that an appeal waiver is enforceable, the proper remedy is for the appel-
late court to dismiss the appeal.
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Appeal from the District Court for Hall County: Teresa K.
Luther, Judge. Appeal dismissed.
Mark Porto, of Shamberg, Wolf, McDermott & Depue, for
appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Brandon Dye, pro se.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ., and Moore, Judge.
Miller-Lerman, J.
NATURE OF CASE
Brandon Dye was convicted by a jury of six crimes: one
felony count of robbery, two felony counts of first degree false
imprisonment, one misdemeanor count of third degree assault,
one misdemeanor count of third degree sexual assault, and
one misdemeanor count of carrying a concealed weapon. After
trial, the parties entered into a sentencing agreement pursuant
to which the State recommended, inter alia, that a sentence of
imprisonment for 12 to 13 years for the robbery conviction be
imposed and that the other sentences be served concurrently to
such sentence. The district court for Hall County imposed sen-
tences in conformity with the recommendation. Dye appeals.
The State argues that this appeal should be dismissed because,
as part of the sentencing agreement, Dye waived his right to
appeal. Dye argues that the waiver is unenforceable. We con-
clude that the waiver is enforceable, and we therefore dismiss
this appeal.
STATEMENT OF FACTS
The incident giving rise to the charges against Dye occurred
on the afternoon of November 7, 2013, when Dye kicked in
the door of a hotel room in Grand Island, Nebraska, that was
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occupied by three sisters. Dye entered the hotel room because
he was searching for a relative of the sisters for the purpose of
retrieving a debt the relative owed to him. While in the hotel
room, Dye grabbed and bent the arm of one of the sisters and
took a cell phone from her and he attempted to take cell phones
from the other sisters. Dye also made a number of sexually
suggestive comments to the sisters, which they interpreted as
offering money in exchange for sexual favors, and he touched
one of the sisters on the backside. Based on these actions, the
State charged Dye with robbery, two counts of first degree false
imprisonment, third degree assault, third degree sexual assault,
and carrying a concealed weapon. The State also alleged that
Dye was a habitual criminal.
Dye’s defense at trial was based primarily on his assertion
that at the time of the incident, he was temporarily insane
as the result of having involuntarily consumed a drug that
another person put in his drink. Dye admitted that shortly
before the incident, he had been drinking alcohol and smoking
marijuana with his sister and her boyfriend. He testified that
he had consumed a similar amount of alcohol and marijuana
on other occasions and that it had not caused him problems
but that on this occasion, he temporarily lost consciousness.
Although he recalled a taxi arriving at his house shortly before
the incident occurred, he did not recall anything further until
he regained consciousness when police arrived at the scene of
the incident. He testified that even at that point, he did not feel
fully conscious.
As part of his defense, Dye made an offer of proof of
testimony by his girlfriend, Ann Chapman, regarding state-
ments made to her by Chad Willis, the boyfriend of Dye’s
sister. In a hearing on the admissibility of her testimony,
Chapman testified that Willis had told her that on the day of
the incident, he had put something into Dye’s drink without
Dye’s knowledge. Chapman testified that Willis said that he
had “drugged” Dye’s drink with a substance he identified as
“‘E.’” Dye argued that Chapman’s testimony regarding Willis’
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statements should be admitted as an exception to the hearsay
rule pursuant to Neb. Rev. Stat. § 27-804(2)(c) (Reissue 2008)
because it was a statement tending to expose the declarant to
criminal liability. The court found that Willis, who was incar-
cerated, was unavailable as a witness; however, the court con-
cluded that the hearsay statements were not admissible under
§ 27-804(2)(c), because the circumstances did not demonstrate
the trustworthiness of the statements.
The jury found Dye guilty of all counts. When the matter
came for sentencing, the State presented evidence to support
its allegation that Dye was a habitual criminal. At the sen-
tencing hearing, the court noted that a plea agreement had
been offered to Dye prior to the trial and that a sentencing
agreement had been offered to Dye after the convictions but
prior to the sentencing hearing. The court expressed con-
cern that Dye did not understand the potential benefit of the
agreements, because he did not understand the constraints
that would be placed on the court’s sentencing discretion if
it found Dye to be a habitual criminal, specifically, that the
court would be required to sentence him to imprisonment
for a mandatory minimum of 10 years and that he would
not be eligible for parole during that 10-year period. The
court therefore continued the sentencing to a later date in
order to give Dye an opportunity to review his options with
his attorney.
At the next sentencing hearing, the court was informed that
the State and Dye had reached an agreement as to a sentenc-
ing recommendation. The sentencing agreement required the
State to withdraw the habitual criminal allegation, and, as
part of the sentencing agreement, Dye signed a waiver which
stated as follows:
I, Brandon Dye, after receiving counsel from my
attorney . . . hereby voluntarily and knowingly and
intelligently waive any rights to appeal this case and
to any post-conviction relief that I may otherwise be
entitled. I understand this waiver includes appellant
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[sic] and post-conviction relief that may arise from both
statutory or constitutional authority. This waiver comes
pursuant to a bargain [sic] for agreement, whereby the
State agrees to dismiss the habitual criminal charge
against me and recommend a 12 - 13 year sentence on
Count I, with the remaining counts to be run concurrent
to that charge.
The court questioned Dye regarding his understanding of
the sentencing agreement and the waiver. Dye replied in the
affirmative to the court’s questions regarding whether he
wished to waive his right to appeal and to go with the sen-
tencing recommendation and whether he understood the effect
of the waiver and the sentencing agreement. The court then
stated that it would follow the sentencing recommendation.
In accordance with the sentencing recommendation, the court
sentenced Dye to imprisonment for 12 to 13 years for the
robbery conviction, for 2 to 4 years for each of the two false
imprisonment convictions, and for 1 year each for the assault,
sexual assault, and concealed weapon convictions, and the
court ordered that all the sentences be served concurrently to
one another.
Dye filed a pro se notice of appeal, and his trial coun-
sel thereafter filed a motion to withdraw as counsel. The
Nebraska Court of Appeals allowed trial counsel to withdraw
and required the district court to appoint new counsel for
appeal. We later sustained the State’s petition to bypass the
Court of Appeals.
ASSIGNMENTS OF ERROR
In a brief prepared by appellate counsel, Dye claims that
(1) the sentencing agreement, pursuant to which he waived
his right to appeal, is unenforceable, and (2) the district court
erred when it determined that Chapman’s testimony regarding
Willis’ statements was inadmissible hearsay.
We note that after the State filed its brief, Dye filed a pro
se reply brief in which he made several new assignments of
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error. For reasons including our disposition of this appeal,
these purported assignments of error are neither properly
before nor considered by the court.
STANDARD OF REVIEW
[1,2] The validity of an appeal waiver is a question of law.
See U.S. v. Walters, 732 F.3d 489 (5th Cir. 2013). When dis-
positive issues on appeal present questions of law, an appellate
court has an obligation to reach an independent conclusion irre-
spective of the decision of the court below. State v. Casterline,
290 Neb. 985, 863 N.W.2d 148 (2015).
ANALYSIS
Dye contends that the sentencing agreement, pursuant to
which he waived his right to appeal, is unenforceable and that
we should consider the merits of his assigned error regarding
the district court’s evidentiary ruling. He argues that appeal
waivers are against public policy and should not be enforced.
The State contends that the waiver is enforceable. We agree
with the State, and we therefore dismiss this appeal.
[3] We have previously stated that a “defendant can waive
a constitutional right, including the right to appeal, if done
knowingly and voluntarily.” State v. Anderson, 279 Neb. 631,
637, 781 N.W.2d 55, 60 (2010). In Anderson, the defendant
argued that two prior driving under the influence convictions
could not be used to find him guilty of driving under the
influence, third offense, because he was denied due process in
connection with those convictions when he waived his right
to appeal those prior convictions by pleading guilty under the
uniform waiver system. We rejected the defendant’s argument
and concluded that the waiver of appeal rights in the prior
convictions did not violate due process and render the prior
convictions invalid for purposes of characterizing the cur-
rent offense.
Our analysis in Anderson was modest due to the nature of
the issue presented. In the instant case, we must now analyze
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the legal landscape where a defendant waives the right to
appeal but nevertheless directly attempts to appeal the convic-
tion or sentence. The obvious obstacle to the appeal lies in
Dye’s waiver of his appellate rights. We consider this issue
in three parts: First, do appeal waivers violate public policy?
Second, if not, what should an appellate court review before
enforcing a specific waiver? And third, what is the remedy to
enforce an appeal waiver?
Appeal Waivers Do Not Violate
Public Policy in Nebraska.
As noted above, in Anderson, we generally acknowledged
that a defendant may waive the right to appeal. This is in line
with the weight of authority from other state jurisdictions
which holds that a waiver of appeal rights is enforceable when
made knowingly and voluntarily. See Annot., 89 A.L.R. 3d 864
(1979). See, also, Gwin v. State, 456 So. 2d 845 (Ala. Crim.
App. 1984); Staton v. Warden, 175 Conn. 328, 398 A.2d 1176
(1978); People v. Fearing, 110 Ill. App. 3d 643, 442 N.E.2d
939, 66 Ill. Dec. 378 (1982); Creech v. State, 887 N.E.2d 73
(Ind. 2008); State v. Hinners, 471 N.W.2d 841 (Iowa 1991);
State v. Perkins, 108 Wash. 2d 212, 737 P.2d 250 (1987). But
see, State v. Ethington, 121 Ariz. 572, 592 P.2d 768 (1979);
People v. Harrison, 386 Mich. 269, 191 N.W.2d 371 (1971);
Spann v. State, 704 N.W.2d 486 (Minn. 2005).
In the federal courts, the Court of Appeals for the Eighth
Circuit observed that “[a]s a general rule, a defendant is
allowed to waive appellate rights” and that “[e]very [federal]
circuit that has considered this issue has reached the conclu-
sion that at least some forms of appeal waivers are permis-
sible.” U.S. v. Andis, 333 F.3d 886, 889 (8th Cir. 2003). The
court in Andis noted that “the right to appeal is not a [federal]
constitutional right but rather ‘purely a creature of statute.’”
Id. (citing Abney v. United States, 431 U.S. 651, 97 S. Ct.
2034, 52 L. Ed. 2d 651 (1977)). The court reasoned that given
a defendant can waive certain constitutional rights, such as
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the right to a jury trial, the right to confront accusers, and the
privilege against self-incrimination, it “would be hard-pressed
to find a reason to prohibit a defendant from waiving a purely
statutory right.” Id.
We note that although Andis states that the U.S. Constitution
does not guarantee the right to appeal a criminal convic-
tion, Neb. Const. art. I, § 23, does provide that in capital
cases, appeal to this court is a matter of right. The state
Constitution continues that “[i]n all other cases, criminal or
civil, an aggrieved party shall be entitled to one appeal to [the
Court of Appeals] or to the Supreme Court as may be provided
by law.” Furthermore, an earlier version of Neb. Const. art. I,
§ 23, provided for the right of appeal in felony cases. Thus,
in Nebraska, the right to appeal has long been guaranteed by
the state Constitution. Nevertheless, as noted in Andis, consti-
tutional rights can be waived; therefore, the right to appeal,
even if provided by our state Constitution, can be waived.
See Leach v. State, 914 So. 2d 519 (Fla. App. 2012) (right to
appeal, which is protected by state constitution, may be waived
by defendant).
We note that Dye’s waiver was not made pursuant to a plea
agreement but that instead, Dye had already been convicted of
six crimes before he signed the waiver as part of a sentenc-
ing agreement reached with the State. The authorities cited
above, to the effect that appeal waivers do not violate public
policy, mostly involve appeal waivers made pursuant to plea
agreements. In this regard, we are aware that some courts have
expressed concern regarding appeal waivers made as part of a
sentencing agreement for the reason that after the defendant
has been convicted, the prosecutor is in a stronger position
to demand concessions. See, e.g., Spann, supra. However,
we are more persuaded by the reasoning of the courts which
have endorsed appeal waivers in sentencing agreements and
have observed that, if anything, a “defendant’s appreciation of
the value of the right to appeal is far more refined after guilt
or innocence has been decided by trial than before.” People
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v Seaberg, 74 N.Y.2d 1, 10, 541 N.E.2d 1022, 1026, 543
N.Y.S.2d 968, 972 (1989).
We believe the defendant is in a better position after con-
viction than before trial to assess the potential value of an
appeal when negotiating with a prosecutor. Other courts have
offered similar reasoning and approved appeal waivers as
part of sentencing agreements. See, Leach, 914 So. 2d at 522
(“[w]e see no reason to treat a plea bargain waiver of the right
to appeal differently from a waiver that occurs in a sentenc-
ing bargain after a jury’s finding of guilt”); Cubbage v. State,
304 Md. 237, 247, 498 A.2d 632, 638 (1985) (reasoning that
appeal waiver “is equally applicable to one who faces sen-
tencing after having been found guilty and who bargains for
sentencing advantages in consideration of a waiver of appeal
[as one who bargains before trial]”). To the extent there is
concern regarding the bargaining power of the State after the
defendant has been convicted, we think that such concern may
be addressed in the review, discussed further below, that an
appellate court must exercise to determine whether the appeal
waiver was made knowingly and voluntarily and whether
enforcement of the waiver would result in a miscarriage
of justice. We conclude that appeal waivers do not violate
Nebraska public policy.
For completeness, we note that Dye’s agreement reached
after he was convicted contained a second feature, specifically,
this “waiver includes . . . post-conviction relief that may arise
from both statutory or constitutional authority.” Because Dye
is presently attempting to bring a direct appeal, the enforce-
ability of the waiver of the right to appeal is at issue here,
but the enforceability from a public policy standpoint of his
waiver of postconviction rights is not directly implicated. It
would not be prudent for us to remark on the waiver of post-
conviction relief at this time. See U.S. v. Rollings, 751 F.3d
1183 (10th Cir. 2014) (where only appellate waiver provi-
sion is challenged, appellate court not obligated to consider
validity of other parts of agreement). We next turn to issues
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an appellate court should consider when deciding whether a
specific waiver of appeal is enforceable.
Limited Review by Appellate Court: Before Enforcing an
Appeal Waiver, an Appellate Court Should Review (1)
Whether the Appeal is Within the Scope of the Waiver,
(2) Whether the Waiver was Made Knowingly
and Voluntarily, and (3) Whether Enforcement
Would Result in a Miscarriage of Justice.
Having determined as a general matter that appeal waivers
do not violate public policy, we next set forth the process for
an appellate court to determine whether an appeal waiver is
enforceable in a specific case. We adopt a three-step inquiry
developed in federal courts for this purpose.
As discussed above, the Court of Appeals for the Eighth
Circuit in U.S. v. Andis, 333 F.3d 886 (8th Cir. 2003), stated
that a defendant is generally allowed to waive appeal rights.
However, the court in Andis acknowledged certain limits that
are imposed on the enforceability of such waivers. The court
stated that when reviewing an appeal waiver, an appellate
court “must confirm that the appeal falls within the scope of
the waiver and that both the waiver and plea agreement were
entered into knowingly and voluntarily.” Id. at 889-90. The
court further stated that “[e]ven when these conditions are met,
[an appellate court] will not enforce a waiver where to do so
would result in a miscarriage of justice.” Id. at 890. The limits
set forth in Andis were described in U.S. v. Hahn, 359 F.3d
1315, 1325 (10th Cir. 2004), as a “three-prong analysis” which
calls for an appellate court,
in reviewing appeals brought after a defendant has entered
into an appeal waiver, to determine: (1) whether the dis-
puted appeal falls within the scope of the waiver of
appellate rights; (2) whether the defendant knowingly and
voluntarily waived his appellate rights; and (3) whether
enforcing the waiver would result in a miscarriage of
justice . . . .
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[4] We similarly hold that when a defendant appeals a
conviction or sentence despite having waived his or her right
to appeal, an appellate court should enforce the waiver only
after having reviewed (1) whether the appeal falls within the
scope of the waiver, (2) whether the defendant knowingly and
voluntarily waived his or her right to appeal, and (3) whether
enforcing the waiver would result in a miscarriage of justice.
We therefore apply these considerations in the present case
and discuss concepts related to each consideration in connec-
tion therewith.
[5,6] First, we determine whether this appeal falls within
the scope of Dye’s waiver. The court in Andis, supra, noted
that the burden of proof is on the State to demonstrate that an
agreement clearly and unambiguously waives a defendant’s
right to appeal and that waivers of the right to appeal are to be
applied narrowly, with any ambiguities construed against the
State and in favor of the defendant’s right to appeal. We agree
with and adopt this approach. In the present case, the waiver
signed by Dye states that he waives “any rights to appeal this
case.” We determine that the present direct appeal is clearly
and unambiguously within the scope of Dye’s waiver.
Second, we review whether the record shows that Dye
knowingly and voluntarily waived his right to appeal. The
court in Andis recognized that an agreement or waiver may
not be knowing or voluntary if, for example, it is entered
into upon the ineffective assistance of counsel or upon undue
coercion. Other courts also recognize that a waiver of appeal
rights does not waive “an ineffectiveness [of counsel] claim
having to do with the waiver (or the plea agreement as a
whole) and its negotiation.” U.S. v. Smith, 759 F.3d 702, 707
(7th Cir. 2014), cert. denied ___ U.S. ___, 135 S. Ct. 732,
190 L. Ed. 2d 457. See, also, MacDonald v. State, 778 A.2d
1064 (Del. 2001). In the present case, however, Dye does not
assert, and there is no indication in the record, that the waiver
was the result of ineffective assistance of counsel or undue
coercion. Instead, the record shows that the district court
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questioned Dye at length regarding his understanding of the
sentencing agreement, the waiver, and the consequences and
that Dye replied in the affirmative to the court’s questions
regarding whether he wished to waive his right to appeal and
whether he understood the effect of the waiver. The record
demonstrates that Dye knowingly and voluntarily waived his
right to appeal.
[7] Finally, we consider whether enforcing the waiver would
result in a miscarriage of justice. With respect to a miscarriage
of justice, the Court of Appeals for the Eighth Circuit in U.S.
v. Andis, 333 F.3d 886, 891 (8th Cir. 2003), noted that “this
exception is a narrow one and will not be allowed to swallow
the general rule that waivers of appellate rights are valid.”
However, the court in Andis acknowledged, in connection
with the miscarriage of justice consideration, that, inter alia,
“a defendant has the right to appeal an illegal sentence, even
though there exists an otherwise valid waiver.” 333 F.3d at
891-92. The court further noted that a sentence is illegal when
it is not authorized by the judgment of conviction or when
it is greater or lesser than the permissible statutory penalty
for the crime. Therefore, even when a defendant has made a
valid waiver of appeal rights, an appellate court may reverse
a sentence that is outside of statutory limits or otherwise not
authorized by law.
The Andis court noted that some federal circuits have
included within the miscarriage of justice exception sen-
tences based on impermissible factors and claims of ineffec-
tive assist­ance of counsel. However, the sentences in this case
are within statutory limits. And, other than Dye’s argument
that appeal waivers in general violate public policy, he makes
no claim, and we see no indication in the record, that enforce-
ment of the specific waiver in this case would result in a mis-
carriage of justice.
Having determined that this appeal is within the scope of
Dye’s waiver, that Dye waived his appeal rights knowingly
and voluntarily, and that enforcement of the waiver will not
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result in a miscarriage of justice, we conclude that Dye’s
waiver of appeal is enforceable.
Remedy to Enforce Waiver of Appeal: Proper
Remedy to Enforce a Valid Waiver of Appeal
Rights Is to Dismiss the Appeal.
[8] Having determined that the appeal waiver is enforce-
able, we must determine how the waiver is to be enforced
when the defendant ignores the waiver and attempts to appeal
the convictions or sentences. We agree with the majority of
courts which have concluded that once an appellate court has
determined that an appeal waiver is enforceable, the proper
remedy is for the appellate court to dismiss the appeal. E.g.,
U.S. v. Smith, 759 F.3d 702 (7th Cir. 2014); U.S. v. Rollings,
751 F.3d 1183 (10th Cir. 2014); U.S. v. Walters, 732 F.3d 489
(5th Cir. 2013); Cubbage v. State, 304 Md. 237, 498 A.2d
632 (1985).
Contrary to the weight of authority, we are aware that in
State v. Gibson, 68 N.J. 499, 512, 348 A.2d 769, 775 (1975),
the Supreme Court of New Jersey held that “a defendant [who
has signed an appeal waiver and] who has not pleaded guilty,
but has been convicted after trial, remains desirous of securing
appellate review of the conviction and files therefor in time,
should be allowed his appeal.” The New Jersey court distin-
guished an appeal waiver as part of a plea agreement from
the situation in which the defendant was convicted at trial and
waived appeal rights as part of a sentencing agreement. The
New Jersey court warned that “a defendant who has obtained
sentence or charge concessions in consideration of the appeal-
waiver would be subject to their revocation, at the option of the
State, immediately upon the filing of the appeal.” Id. The New
Jersey court therefore required that the trial court advise the
defendant that “notwithstanding his agreement not to appeal
the conviction he may nevertheless file a timely appeal, but
that if he does so, then, at the option of the prosecutor, the
agreement will become inoperative and he may be resentenced
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. . . and that any charges dismissed pursuant thereto may be
reinstated.” Id. at 513, 348 A.2d at 776. As we read Gibson,
the consequence to a convicted defendant who files an appeal
notwithstanding an appeal waiver is that all concessions agreed
to by the prosecution are revoked.
The Court of Appeals of Maryland considered Gibson in
Cubbage, supra, and rejected the Gibson holding. We agree
with the analysis in Cubbage. The court in Cubbage noted,
inter alia, “difficulties with the New Jersey approach,” includ-
ing concerns with regard to judicial economy and with regard
to situations in which the waiver is part of an agreement
involving multiple cases. 304 Md. at 249, 498 A.2d at 638.
Because of such concerns, the court concluded that “the bet-
ter rule is to hold the defendant to the knowing and voluntary
waiver which he made” and that “[o]nce the appellate court
confirms that the waiver is indeed knowing and voluntary, the
appeal going to the merits of the judgment of conviction should
be dismissed.” Id. at 250, 498 A.2d at 639.
We similarly hold that once an appellate court has made
the determinations that an appeal falls within the scope of the
appeal waiver, that the defendant knowingly and voluntarily
waived his or her right to appeal, and that enforcing the appeal
waiver would not result in a miscarriage of justice, then the
appeal going to the merits of the judgment of conviction and
sentence should be dismissed. This is the remedy followed in
U.S. v. Andis, 333 F.3d 886 (8th Cir. 2003), and the majority of
cases, and we employ it here.
Because dismissal is the proper remedy, we do not consider
the evidentiary issue Dye has raised in this appeal.
CONCLUSION
We conclude that Dye’s waiver of his right to appeal entered
into as part of a sentencing agreement after trial is enforce-
able. We therefore dismiss this appeal without considering the
other issue raised by Dye.
A ppeal dismissed.