State v. Parnell

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/12/2018 12:10 AM CST
- 774 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. PARNELL
Cite as 301 Neb. 774
State of Nebraska, appellee, v.
Tracy N. Parnell, appellant.
___ N.W.2d ___
Filed November 30, 2018. No. S-18-413.
1. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusions.
2. Negligence: Public Officers and Employees: Pleadings: Appeal and
Error. The appropriate filing procedure when an appeal is lost due to
official negligence is for the party seeking relief to file a motion in
the lower court, seeking the ability to establish the basis for obtain-
ing relief.
3. Presumptions. A letter properly addressed, stamped, and mailed raises a
presumption that the letter reached the addressee in the usual course of
the mails.
4. Public Officers and Employees: Presumptions. In the absence of
evidence to the contrary, it may be presumed that public officers faith-
fully performed their official duties, and absent evidence showing
misconduct or disregard of the law, the regularity of official acts is
presumed.
Appeal from the District Court for Douglas County: Gary B.
R andall, Judge. Reversed and remanded.
Tracy N. Parnell, pro se.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
- 775 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. PARNELL
Cite as 301 Neb. 774
Heavican, C.J.
INTRODUCTION
Tracy N. Parnell filed a pro se motion for postconviction
relief on July 12, 2017. The district court denied the motion
without a hearing. Parnell then filed a motion to vacate or
modify the judgment, contending that he was not informed
of the denial and was thus unable to file a timely appeal.
Parnell sought a hearing at which he could prove that he was
not served with the district court’s order denying his motion.
The district court denied the motion without a hearing. Parnell
appeals. We reverse.
BACKGROUND
Parnell was convicted of first degree murder, attempted
first degree murder, two counts of use of a deadly weapon to
commit a felony, and possession of a weapon by a prohibited
person. This court affirmed Parnell’s convictions and sentences
on direct appeal.1
On July 12, 2017, Parnell filed a motion seeking postcon-
viction relief. The district court dismissed the motion without
an evidentiary hearing on August 17. The clerk of the court
certified that a copy of that dismissal was sent to the State and
to Parnell.
On March 16, 2018, Parnell filed a motion alleging that he
never received a copy of the order dismissing his postconvic-
tion motion and thus was unable to file a timely appeal. Along
with the motion to vacate, Parnell requested a hearing on his
motion. Parnell’s motion to vacate was denied on March 21
without a hearing.
Parnell appeals from that denial. In its brief, the State
agrees with Parnell that the district court erred in denying the
motion without first holding a hearing.
1
See State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
- 776 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. PARNELL
Cite as 301 Neb. 774
ASSIGNMENT OF ERROR
Parnell assigns that the district court erred in denying his
motion to vacate without a hearing.
STANDARD OF REVIEW
[1] When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s
conclusions.2
ANALYSIS
Parnell argues that the district court erred in denying
his “Motion to Vacate or Modify Judgement and Motion to
Compel[]” and his request for a hearing on that motion. The
basis of Parnell’s motion is his allegation that he did not
receive a copy of the district court’s order dismissing his
motion for postconviction relief and therefore did not timely
appeal from that denial. In denying Parnell’s motion without a
hearing, the district court reasoned that the certificate of serv­
ice on the postconviction motion indicated that it was served
on Parnell.
[2] The appropriate filing procedure when an appeal is lost
due to official negligence is for the party seeking relief to file
a motion in the lower court, seeking the ability to establish the
basis for obtaining relief.3
[3,4] A letter properly addressed, stamped, and mailed raises
a presumption that the letter reached the addressee in the
usual course of the mails.4 In the absence of evidence to the
contrary, it may be presumed that public officers faithfully
performed their official duties, and absent evidence showing
2
Hotz v. Hotz, ante p. 102, 917 N.W.2d 467 (2018).
3
See State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005).
4
Sherrod v. State, 251 Neb. 355, 557 N.W.2d 634 (2005), overruled on
other grounds, Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
- 777 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. PARNELL
Cite as 301 Neb. 774
­ isconduct or disregard of the law, the regularity of official
m
acts is presumed.5
Parnell’s motion alleged that he did not receive a copy of
the order dismissing his postconviction motion. He sought the
ability to obtain proof of his allegation and submit the same to
the court. This was sufficient to obtain a hearing on his claim
for official negligence.
Furthermore, while the law presumes that a public officer
will faithfully perform his or her official duties and that a let-
ter, once properly mailed, will reach its addressee, both are
presumptions that can be overcome by the showing of evidence
to the contrary. In this case, while Parnell sought the abil-
ity to rebut these presumptions, the district court’s denial of
his motion without a hearing prevented Parnell from offering
evidence to that end. Whether the presumption can be success-
fully rebutted will depend on the evidence presented.
The district court erred when it denied the motion without
holding a hearing at which Parnell was able to offer proof of
his allegation.
CONCLUSION
The district court erred in denying Parnell’s motion without
a hearing. We reverse that decision and remand the cause for
a hearing at which Parnell may offer evidence in connection
with his assertion that he never received the order dismissing
his motion for postconviction relief.
R eversed and remanded.
Freudenberg, J., not participating.
5
See State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).