Gray v. Frakes

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/28/2022 09:07 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
GRAY v. FRAKES
Cite as 311 Neb. 409Graylin Gray, appellant, v. Scott R. Frakes,
director, Nebraska Department of Correctional
Services, and Kevin J. Wilken, administrative
assistant III, in their official
capacities, appellees.
___ N.W.2d ___
Filed April 22, 2022. No. S-21-257.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a
motion to dismiss is reviewed de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing
an order dismissing a complaint, the appellate court accepts as true
all facts which are well pled and the proper and reasonable inferences
of law and fact which may be drawn therefrom, but not the plain-
tiff’s conclusion.
3. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
Petition for further review from the Court of Appeals,
Pirtle, Chief Judge, and Moore and Bishop, Judges, on
appeal thereto from the District Court for Johnson County,
James E. Doyle IV, Judge. Judgment of Court of Appeals
affirmed.
Graylin Gray, pro se.
Douglas J. Peterson, Attorney General, James D. Smith, and
Charles E. Chamberlin for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
GRAY v. FRAKES
Cite as 311 Neb. 409Papik, J.
Graylin Gray, an inmate serving a term of incarceration
in the custody of the Nebraska Department of Correctional
Services (DCS), sought a writ of mandamus in the district
court. He claimed that DCS incorrectly calculated his manda-
tory release date. The district court dismissed Gray’s amended
petition, and Gray appealed. The Nebraska Court of Appeals
summarily affirmed, and we granted Gray’s petition for further
review. Gray contends recalculation of his mandatory release
date is required, because in sentencing him as a habitual crimi-
nal on two felony counts, the sentencing court did not pro-
nounce that it was imposing “mandatory minimum” sentences.
We find that no specific pronouncement of a “mandatory
minimum” sentence is required for DCS to treat the sentence as
such in calculating an inmate’s mandatory discharge date and
therefore affirm.
BACKGROUND
Convictions and Sentences.
Gray was convicted in 2007 of unlawful possession of four
or more financial transaction devices and unlawful circulation
of financial transaction devices in the first degree. Following
enhancement proceedings, Gray was found to be a habitual
criminal and sentenced to 10 to 20 years’ imprisonment on
each count, to be served consecutively.
The Court of Appeals affirmed Gray’s convictions and sen-
tences on direct appeal in an unpublished memorandum opin-
ion filed on March 12, 2009, in case No. A-08-336. We denied
further review.
Mandamus Action Underlying Present Appeal.
In the years after his direct appeal, Gray made numerous
unsuccessful challenges to the convictions and sentences at
issue. See, e.g., Gray v. Kenney, 290 Neb. 888, 863 N.W.2d
127 (2015). In the matter now before us, Gray, representing
himself, petitioned the district court for a writ of mandamus
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
GRAY v. FRAKES
Cite as 311 Neb. 409requiring DCS officials to change his mandatory discharge date
to April 2026. Gray asserted in his verified amended petition
that DCS had impermissibly modified his sentence by setting
his mandatory discharge date for April 2036.
Gray attached a copy of the district court’s written sentenc-
ing order to his amended petition. In the written sentencing
order, the district court stated that it was sentencing Gray to “a
period of not less than 10 years nor more than 20 years” for
each of the two counts, to be served consecutively. The writ-
ten sentencing order did not contain a specific reference to its
habitual criminal finding or a mandatory minimum sentence.
Gray’s petition also referred to his sentencing hearing. At
the sentencing hearing, the district court mentioned its finding
that Gray was a habitual criminal. In its oral pronouncement
of Gray’s sentences, the district court ordered Gray imprisoned
for “a period of not less than 10 years nor more than 20 years”
for each of the two counts, to be served consecutively.
The district court later stated, “[Y]ou must serve 20 years,
minus credit for any time previously served, towards parole
eligibility and 20 years, minus credit for any time previously
served, towards mandatory discharge. You are given credit
for 676 days previously served.” The prosecutor then asked
whether Gray had to serve 10 years before good time began to
accrue. The district court responded, “It was my understand-
ing that you’re not parole eligible on a mandatory minimum
sentence of 10 years on each count.” Gray agreed, “You got
to do a mandatory.” The district court also stated, “[I]t’s my
understanding you have to serve a minimum of 20 years
before you would be considered for discharge.” Gray again
agreed, “Correct.”
DCS records and correspondence attached to Gray’s
amended petition reflect that DCS initially set Gray’s manda-
tory release date for April 2026, but later concluded that Gray
must serve 30 years before mandatory discharge, minus credit
for 676 days served, and set his mandatory discharge date
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
GRAY v. FRAKES
Cite as 311 Neb. 409for April 2036. In correspondence with Gray, DCS explained
that Gray was sentenced to two consecutive 10-to-20-year
terms, with each count carrying a habitual criminal enhance-
ment of a 10-year mandatory term, and that it computed his
mandatory discharge date based on State v. Castillas, 285 Neb.
174, 826 N.W.2d 255 (2013), disapproved on other grounds,
State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015). In
that case, we held that a defendant must serve the mandatory
minimum portion of a sentence before earning good time credit
toward the maximum portion and explained, “[T]he manda-
tory discharge date is computed by subtracting the mandatory
minimum sentence from the maximum sentence, halving the
difference, and adding that difference to the mandatory mini-
mum.” Castillas, 285 Neb. at 191, 826 N.W.2d at 268. See,
also, Caton v. State, 291 Neb. 939, 869 N.W.2d 911 (2015)
(quoting Castillas, supra).
On its own motion, the district court issued an order direct-
ing the parties to show cause why Gray’s mandamus action
should not be dismissed with prejudice for failure to state a
cause of action, in part because DCS had properly calculated
the mandatory release date pursuant to Caton, supra, and
Castillas, supra. Gray responded that Caton and Castillas did
not apply because he was not sentenced to two mandatory
minimum sentences of 10 years each. The district court dis-
agreed and dismissed Gray’s amended petition, citing Neb. Ct.
R. Pldg. § 6-1112(b)(6).
Gray appealed. His brief assigned in part that the district
court erred in dismissing his petition based on its finding that
the April 2036 mandatory release date was accurate. DCS
filed a motion for summary affirmance. In a minute entry,
the Court of Appeals sustained DCS’ motion to summarily
affirm the district court’s dismissal, citing Caton for the above-­
mentioned principles.
We granted Gray’s petition for further review and ordered
the matter submitted without oral argument.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
GRAY v. FRAKES
Cite as 311 Neb. 409ASSIGNMENT OF ERROR
Gray assigns that the Court of Appeals erred in summarily
affirming the district court’s order that dismissed his amended
petition for a writ of mandamus.
STANDARD OF REVIEW
[1,2] A district court’s grant of a motion to dismiss is
reviewed de novo. DMK Biodiesel v. McCoy, 285 Neb. 974,
830 N.W.2d 490 (2013). When reviewing an order dismissing
a complaint, the appellate court accepts as true all facts which
are well pled and the proper and reasonable inferences of law
and fact which may be drawn therefrom, but not the plaintiff’s
conclusion. Id.[3] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court. Id.ANALYSIS
Procedure.
The district court determined that Gray’s amended peti-
tion failed to state a claim and dismissed it pursuant to
§ 6-1112(b)(6). Before turning to Gray’s argument in support
of his petition for further review, we sound a note of caution
regarding the procedure employed in the district court.
Although we have previously reviewed dismissals of man-
damus actions based on § 6-1112(b)(6), see, e.g., State ex rel.
Jacob v. Bohn, 271 Neb. 424, 711 N.W.2d 884 (2006), and
a commentator has written that the sufficiency of the peti-
tion to obtain a writ of mandamus may be challenged under
that provision, see John P. Lenich, Nebraska Civil Procedure
§ 20:11 (2022), the statutes that set forth procedures governing
mandamus actions do not appear to contemplate the evaluation
of petitions for mandamus relief under § 6-1112(b)(6). See
Neb. Rev. Stat. § 25-2156 et seq. (Reissue 2016). Moreover,
we recently concluded in another context that motions under
§ 6-1112(b) should play no role where the governing proce-
dures were set forth by statute and such motions were not
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
GRAY v. FRAKES
Cite as 311 Neb. 409mentioned. See Maria T. v. Jeremy S., 300 Neb. 563, 915
N.W.2d 441 (2018) (explaining that § 6-1112(b) should play
no role in child custody habeas proceeding; that procedure set
forth in habeas statutes governs; and that habeas statutes do not
describe by what means, if any, respondent may challenge suf-
ficiency of relator’s application).
In this case, Gray does not contend that the district court
erred by evaluating his amended petition under § 6-1112(b)(6);
rather, he only disagrees with the conclusion the district court
reached in conducting that analysis. We therefore limit our
review today to that issue.
Merits.
On further review, Gray argues that he is entitled to a writ
of mandamus, because DCS has incorrectly calculated his
mandatory discharge date. Gray’s petition for further review
rests solely on the contention that he was not sentenced to
mandatory minimum terms and that therefore, the principles
articulated in Caton and Castillas do not govern his mandatory
discharge date.
Gray does not and could not dispute that if he is subject to
mandatory minimum terms, DCS’ calculation of his mandatory
discharge date is accurate. See, Caton, supra; Castillas, supra.
Consequently, the only issue that requires discussion is a nar-
row one: whether DCS was correct to treat Gray’s sentences as
mandatory minimum terms in setting his mandatory discharge
date. We conclude that it was. As we will explain, in imposing
a sentence subject to a habitual criminal enhancement, a court
is not required to pronounce that the sentence is the “manda-
tory minimum” for DCS to treat it as such in calculating an
inmate’s mandatory discharge date.
Gray was convicted of two felony counts. After an enhance-
ment hearing, the district court determined Gray to be a habit-
ual criminal pursuant to Neb. Rev. Stat. § 29-2221 (Reissue
2016). At that time and still today, “the court shall sen-
tence such person . . . as a habitual criminal.” § 29-2221(2).
- 415 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
GRAY v. FRAKES
Cite as 311 Neb. 409Section 29-2221(1) directs that a person convicted of a felony
and deemed to be a habitual criminal “shall be punished by
imprisonment in [a DCS] adult correctional facility for a man-
datory minimum term of ten years and a maximum term of not
more than sixty years.”
The district court sentenced Gray to 10 to 20 years on
each count, to be served consecutively. Gray is correct that
the district court’s written sentencing order did not designate
a “mandatory minimum” sentence. The phrase did come up
at the sentencing hearing, but it appears to have been part of
the truth-in-sentencing advisement, not the sentences, and the
meaning of a sentence is, as a matter of law, determined by
the contents of the sentence itself. See State v. Russell, 291
Neb. 33, 863 N.W.2d 813 (2015). See, also, Neb. Rev. Stat.
§ 29-2204 (Reissue 2016) (terms of imprisonment prevail over
any conflict with truth-in-sentencing advisements). But even if
the sentences imposed by the district court made no mention
of a “mandatory minimum” sentence for a habitual criminal,
we conclude that they were consistent with the district court’s
statutory obligations.
At the time of Gray’s convictions and sentencing, and
relevant to the felonies at issue here, § 29-2204(1)(a)(ii)(A)
(Reissue 2008) provided, “[I]n imposing an indeterminate sen-
tence upon an offender the court shall . . . [f]ix the minimum
and maximum limits of the sentence to be served within the
limits provided by law.” See 2002 Neb. Laws L.B. 1, § 8, 3d
Spec. Sess. See, also, § 29-2204(1) (Reissue 2016) (current
version containing virtually same language). This language
plainly obligated the sentencing court to “fix” the minimum
and maximum terms of incarceration a defendant is ordered to
serve, but we do not understand it to have required the court
to also specify as part of the sentences whether a “mandatory
minimum” applies.
We find confirmation of this understanding in our opinion
in Russell, supra. Therein, we explained that when the phrase
“mandatory minimum” is used as a term of art, as it is in the
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
GRAY v. FRAKES
Cite as 311 Neb. 409habitual criminal statute, it refers to certain consequences
regarding probation and parole set by the Legislature for that
sentence. But we distinguished this concept from the minimum
term of years that a sentencing court is statutorily authorized to
impose. We also explained that even when “mandatory mini-
mum” is used as a term of art, it is the minimum term of years
provided by statute that affects the range of penalties that a
sentencing court may impose, not the word “mandatory.”
In this case, the district court complied with § 29-2204, as
we have explained it, by fixing the minimum and maximum
terms of Gray’s sentences within the statutory range for a
habitual criminal. Section 29-2204 did not require the district
court to also pronounce any “mandatory minimum” as part of
the sentences.
But the word “mandatory” in § 29-2221 is not without effect.
Once Gray was committed to the custody of DCS, it became
DCS’ responsibility to implement his sentences, and we have
held that mandatory minimum sentences under § 29-2221 carry
consequences in which DCS plays a role. See, Davis v. State,
297 Neb. 955, 902 N.W.2d 165 (2017); Caton v. State, 291
Neb. 939, 869 N.W.2d 911 (2015). For instance, the offender
cannot become eligible for parole until the mandatory mini-
mum is served in full, and good time credits can be applied to
the maximum term of an indeterminate sentence only after the
offender serves the mandatory minimum. See, Davis, supra;Caton, supra; Neb. Rev. Stat. § 83-1,110 (Reissue 2014). It is
DCS that manages information relevant to parole eligibility,
as well as good time credits. See Neb. Rev. Stat. §§ 83-1,107
and 83-1,109 (Reissue 2014). And as we stated earlier, we
have set forth how DCS should calculate an inmate’s manda-
tory discharge date: By “subtracting the mandatory minimum
sentence from the maximum sentence, halving the difference,
and adding that difference to the mandatory minimum.” State
v. Castillas, 285 Neb. 174, 191, 826 N.W.2d 255, 268 (2013),
disapproved on other grounds, State v. Lantz, 290 Neb. 757,
861 N.W.2d 728 (2015). See, also, Caton v. State, supra.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
GRAY v. FRAKES
Cite as 311 Neb. 409In setting Gray’s mandatory discharge date, DCS treated the
low end of his sentences as mandatory minimums, as provided
by law. As we have explained, when the district court found
Gray to be a habitual criminal, § 29-2221 required that he be
punished with a mandatory minimum term. In other words,
Gray’s minimum terms within the statutory range were manda-
tory minimum terms by operation of law, whether the district
court specifically pronounced them to be mandatory minimum
terms or not.
Under the circumstances here, we conclude that DCS was
correct to treat Gray’s sentences as mandatory minimums in
calculating his mandatory discharge date. Accordingly, we find
that the Court of Appeals did not err in summarily affirming
the district court’s dismissal of Gray’s amended petition for a
writ of mandamus.
CONCLUSION
Finding no merit to the error alleged by Gray, we affirm the
judgment of the Court of Appeals.
Affirmed.
Freudenberg, J., not participating.