State v. Boone

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/30/2023 09:07 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BOONE
Cite as 314 Neb. 622State of Nebraska, appellee, v.
Brandon J. Boone, appellant.
___ N.W.2d ___
Filed June 30, 2023. No. S-22-929.
1. 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. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, the party must be appealing from a
final order or a judgment.
3. Criminal Law: Final Orders: Sentences. In a criminal case, the final
judgment is the sentence.
4. Criminal Law: Statutes. Where a criminal procedure is not authorized
by statute, it is unavailable to the defendant in a criminal proceeding.
5. Criminal Law: Jurisdiction. When an unauthorized motion is filed in
a criminal case, the court lacks subject matter jurisdiction to adjudi-
cate it.
6. Constitutional Law: Claims. A manifest injustice common-law claim
must be founded on a constitutional right that cannot and never could
have been vindicated under the Nebraska Postconviction Act or by any
other means.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
Jerry M. Hug, of Hug & Jacobs, L.L.C., for appellant.
Michael T. Hilgers, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BOONE
Cite as 314 Neb. 622Papik, J.
Brandon J. Boone moved to withdraw his guilty pleas to
criminal charges after sentencing but before the time to file
a direct appeal had expired. He claimed that his counsel was
ineffective in advising him to plead guilty and that withdrawal
was necessary to correct a manifest injustice. The district court
denied Boone’s motion, and he appeals. Because we conclude
the district court lacked jurisdiction to consider Boone’s motion
and discern no error as to Boone’s convictions and sentences,
we affirm.
BACKGROUND
After Boone’s onetime girlfriend died from a gunshot wound
to the head, Boone faced multiple criminal charges, includ-
ing first degree murder. Pursuant to a plea agreement, the
State reduced or dismissed the initial charges in exchange for
Boone’s guilty pleas to manslaughter and use of a weapon, a
firearm, to commit a felony.
On November 16, 2022, the district court sentenced Boone
to prison terms of 19 to 20 years for manslaughter and 45 to
50 years for use of a weapon to commit a felony, to be served
consecutively.
A few days after sentencing, Boone’s initial counsel moved
to withdraw. Counsel stated in the motion that Boone had indi-
cated he intended “to proceed on motions and appeal” alleging
ineffective assistance of counsel. The district court sustained
the motion to withdraw and appointed new counsel to repre-
sent Boone.
On December 2, 2022, Boone’s new counsel filed a motion
to withdraw his pleas. The motion asserted that Boone’s prior
counsel had rendered ineffective assistance by advising Boone
to enter the plea agreement and that withdrawal of his pleas
was necessary to correct a manifest injustice. The motion con-
tended that prior counsel told Boone that if he entered the plea
agreement, he would receive “a lenient sentence,” and that
but for this representation, he would have insisted on going
to trial.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BOONE
Cite as 314 Neb. 622The district court, on December 6, 2022, denied Boone’s
motion to withdraw his pleas. In a written order, it stated that
Boone had not shown that withdrawal was necessary to correct
a manifest injustice.
On December 13, 2022, Boone filed an appeal. We granted
the State’s petition to bypass the Nebraska Court of Appeals.
ASSIGNMENT OF ERROR
Boone assigns that the district court erred in denying his
motion to withdraw his pleas.
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. State v. Abernathy, 310 Neb. 880, 969
N.W.2d 871 (2022).
ANALYSIS
Appellate Jurisdiction.
[2,3] Before addressing the merits, we briefly address
appellate jurisdiction. In some contexts, it has been held
that the denial of a motion to withdraw a plea is not a final,
appealable order. See, e.g., State v. Cisneros, 14 Neb. App.
112, 704 N.W.2d 550 (2005). That authority, however, is not
applicable here. For an appellate court to acquire jurisdiction
of an appeal, the party must be appealing from a final order
or a judgment. State v. Combs, 297 Neb. 422, 900 N.W.2d
473 (2017). And in a criminal case, the final judgment is the
sentence. Id. Here, Boone perfected his appeal within 30 days
after the sentence was imposed as required by Neb. Rev. Stat.
§ 25-1912(1) (Cum. Supp. 2022). We thus have jurisdiction
over the appeal.
District Court’s Authority to
Permit Withdrawal of Plea.
Although Boone filed a timely appeal, he assigns no
errors directly challenging his convictions or sentences. His
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BOONE
Cite as 314 Neb. 622sole argument is that the district court erred by denying his
motion to withdraw his pleas. His argument primarily focuses
on why he believes his original counsel was ineffective in
advising him to enter the guilty pleas. The State counters that
before reaching the merits of Boone’s motion to withdraw, we
must first address whether the district court had authority to
allow Boone to withdraw his pleas after sentencing. The State
posits that because the district court did not have authority to
allow Boone to withdraw his pleas, we likewise lack authority
to review the merits of its decision.
Our cases have held that a court has discretion to allow a
defendant to withdraw a plea prior to sentencing for any fair
and just reason, provided that such withdrawal would not sub-
stantially prejudice the prosecution. See, e.g., State v. Warner,
312 Neb. 116, 977 N.W.2d 904 (2022). That authority is not at
issue in this case because Boone sought to withdraw his pleas
after sentencing. We agree with the State that under the circum-
stances of this case, the district court lacked authority to allow
Boone to withdraw his pleas.
[4,5] Generally, where a criminal procedure is not autho-
rized by statute, it is unavailable to the defendant in a criminal
proceeding. See, e.g., State v. McAleese, 311 Neb. 243, 971
N.W.2d 328 (2022). Relatedly, we have said that when an
unauthorized motion is filed in a criminal case, the court lacks
subject matter jurisdiction to adjudicate it. Id. These rules
apply with particular force to motions filed after sentencing.
See, e.g., id. (holding court lacked jurisdiction over postjudg-
ment motion to vacate sentence); State v. Melton, 308 Neb.
159, 953 N.W.2d 246 (2021) (holding court lacked jurisdic-
tion over postjudgment motion to modify nonprobationary
sentence); State v. Dunster, 270 Neb. 773, 707 N.W.2d 412(2005) (holding court lacked jurisdiction over postjudgment
motion to vacate sentence).
Boone does not cite any statutory authorization for his
motion to withdraw his pleas after sentencing, nor are we
aware of any. Instead, Boone generally relies on a line of
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BOONE
Cite as 314 Neb. 622cases holding that a defendant may withdraw a guilty or
no contest plea after sentencing upon a demonstration of a
manifest injustice. See, e.g., State v. Dixon, 223 Neb. 316, 389
N.W.2d 307 (1986), disapproved, State v. Minshall, 227 Neb.
210, 416 N.W.2d 585 (1987); State v. Molina-Navarette, 15
Neb. App. 966, 739 N.W.2d 771 (2007).
To properly address Boone’s argument that the district court
had authority to allow him to withdraw his pleas, some history
is in order. The notion that a court can allow a defendant to
withdraw a plea after sentencing upon a showing that with-
drawal is necessary to correct a manifest injustice entered
our law in the 1970s via a series of cases in which this court
relied on the Standards Relating to Pleas of Guilty promul-
gated by the American Bar Association (ABA Standards). See,
e.g., State v. Evans, 194 Neb. 559, 234 N.W.2d 199 (1975),
disapproved, State v. Minshall, supra; State v. Turner, 186
Neb. 424, 183 N.W.2d 763 (1971), disapproved, State v. Irish,
223 Neb. 814, 394 N.W.2d 879 (1986). The ABA Standards
addressed various aspects of guilty and no contest pleas, and
at one point, this court stated that those standards “outline[d]
what should be the minimum procedure in the taking of such
pleas.” Turner, 186 Neb. at 426, 183 N.W.2d at 765. See, also,
ABA Standards for Criminal Justice, Pleas of Guilty (3d ed.
1999). With respect to plea withdrawal, the ABA Standards
provided that the court should allow withdrawal of a plea if
the defendant proves that withdrawal is necessary to correct a
manifest injustice and that such a motion was not necessarily
barred because it was made after sentencing. See Evans, supra(quoting § 2.1 of ABA Standards).
In later years, however, this court disavowed prior sug-
gestions that the ABA Standards are the governing law. See,
Minshall, supra (disapproving any statements in our opin-
ions that any form of ABA Standards governs disposition of
defendant’s plea before sentencing); Irish, 223 Neb. at 818,
294 N.W.2d at 882 (in stating required advisements prior
to pleas, disapproving “any statements that any form of the
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BOONE
Cite as 314 Neb. 622ABA Standards for Criminal Justice, including those relat-
ing to guilty pleas, has been adopted by this state”). Even
so, the idea that a plea could be withdrawn after sentencing
upon a showing of manifest injustice still lingered in some
form. See, e.g., Minshall, 227 Neb. at 213, 416 N.W.2d at 588(“[t]he ‘manifest injustice’ standard relates to a defendant’s
withdrawal of a plea of guilty or no contest after sentencing”)
(emphasis in original); Molina-Navarette, supra (observing
that after sentencing, plea withdrawal is proper where it is
necessary to correct manifest injustice).
This court expressly held that a court could allow a defend­
ant to withdraw a guilty or no contest plea after sentencing
upon a showing that withdrawal was necessary to correct
a manifest injustice in State v. Gonzales, 283 Neb. 1, 807
N.W.2d 759 (2012), but we withdrew that opinion on rehear-
ing. See State v. Gonzales, 285 Neb. 940, 830 N.W.2d 504(2013) (Gonzales II). In our opinion issued after rehearing,
we rejected the contention that a court can allow a defendant
to withdraw a plea after sentencing merely upon a show-
ing that withdrawal is necessary to correct a manifest injus-
tice. Instead, we recognized an “extremely limited” procedure
whereby a court can allow a defendant to withdraw a plea
after his or her conviction has become final. Id. at 948, 830
N.W.2d at 510.
[6] We held that this “common-law procedure” was “avail-
able only when (1) the [Nebraska Postconviction] Act is not,
and never was, available as a means of asserting the ground
or grounds justifying withdrawing the plea and (2) a consti-
tutional right is at issue.” Gonzales II, 285 Neb. at 949-50,
830 N.W.2d at 511. We explained that this procedure “exists
to safeguard a defendant’s rights in the very rare circumstance
where due process principles require a forum for the vindica-
tion of a constitutional right and no other forum is provided
by Nebraska law.” Id. at 950, 830 N.W.2d at 511. See, also,
State v. Mamer, 289 Neb. 92, 95, 853 N.W.2d 517, 521
(2014) (“[a] manifest injustice common-law claim must be
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BOONE
Cite as 314 Neb. 622founded on a constitutional right that cannot and never could
have been vindicated under the Nebraska Postconviction Act or
by any other means”), citing State v. Chiroy Osorio, 286 Neb.
384, 837 N.W.2d 66 (2013), and Gonzalez II.
Where does all this history leave us today? First, we see no
basis in our law to conclude that courts have authority to allow
a defendant to withdraw a plea after sentencing whenever it
is shown that withdrawal is necessary to prevent a manifest
injustice, merely because the ABA Standards recommended as
much. More than 30 years ago, this court repudiated the idea
that the ABA Standards “rise to the status of legislative acts
or judicial holdings.” State v. Irish, 223 Neb. 814, 818, 394
N.W.2d 879, 882 (1986). Neither the ABA Standards nor our
cases that relied upon them provided the district court with
authority to allow Boone to withdraw his pleas.
As for our decision in Gonzales II, both the State and
Boone make arguments based upon it. Boone points out that
the movant in Gonzales II sought to withdraw her plea long
after the time for direct appeal had run and that our opinion
in that case expressly limited itself to those circumstances. He
argues that Gonzales II did not speak to a trial court’s author-
ity to allow a defendant to withdraw pleas after sentencing
but before the time for direct appeal has run. The State, on
the other hand, acknowledges that Gonzales II addressed only
whether there was a recognized procedure for withdrawing a
plea when only collateral attacks were available, but argues
that the rationale of Gonzales II “applies equally in cases
where, as here, a judgment has been entered but is not yet
final.” Brief for appellee at 12.
We agree with Boone that given the procedural posture of
Gonzales II, our opinion in that case did not directly address
whether and under what circumstances a court can allow
a defendant to withdraw a plea after sentencing but before
the time to file a direct appeal has run. That said, we find
that our approach in Gonzales II offers a sound guide for
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BOONE
Cite as 314 Neb. 622determining whether a postjudgment criminal procedure not
authorized by statute should be judicially recognized.
As mentioned above, the general rule is that criminal pro-
cedures not authorized by statute are unavailable. See State v.
McAleese, 311 Neb. 243, 971 N.W.2d 328 (2022). Our opinion
in Gonzales II was consistent with that general rule and our
precedent insofar as it recognized a nonstatutory procedure
to withdraw a plea after sentencing only where such a proce-
dure is constitutionally required and no statutory procedure
is or ever was available to vindicate a constitutional right.
See, State v. Dunster, 270 Neb. 773, 786, 707 N.W.2d 412,
422 (2005) (declining to recognize procedure not authorized
by statute “especially when at least one existing [statutory]
procedure is available in which to raise the issue”); State v.
Louthan, 257 Neb. 174, 186, 595 N.W.2d 917, 925 (1999)
(concluding that if criminal procedure is not authorized by
statute and not constitutionally mandated, it is “unauthorized
and, therefore, unavailable” (internal quotation marks omit-
ted)). We therefore hold that a motion to withdraw a plea filed
after sentencing but before the time for direct appeal has run is
available only under the same limited circumstances identified
in Gonzales II.
Having established the parameters under which the district
court could allow withdrawal of a plea, it becomes apparent
that the district court lacked authority to allow Boone to do
so. Although Boone’s motion to withdraw sought to vindicate
a constitutional right, other statutorily authorized procedures
were available to him to vindicate that right. As we have
discussed, at the time Boone filed a motion to withdraw his
pleas, the time to pursue a direct appeal had not expired. By
entering guilty pleas, Boone generally waived all defenses to
criminal charges, but he did not waive his right to contend
that his pleas were the result of ineffective assistance of coun-
sel. See, e.g., State v. Blake, 310 Neb. 769, 969 N.W.2d 399(2022). Boone could have raised his ineffective assistance of
counsel claim on direct appeal and, even if the record was
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BOONE
Cite as 314 Neb. 622insufficient to allow the claim to be resolved there, in a sub-
sequent motion for postconviction relief. See, e.g., State v.
Miranda, 313 Neb. 358, 984 N.W.2d 261 (2023) (ineffective
assistance of counsel claim is raised on direct appeal when
claim alleges deficient performance with enough particular-
ity for (1) appellate court to make determination of whether
claim can be decided upon trial record and (2) district court
later reviewing petition for postconviction relief to recognize
whether claim was brought before appellate court).
Because other statutorily authorized procedures were avail-
able to Boone to assert his claim that his counsel provided inef-
fective assistance by advising him to enter the plea agreement,
the district court lacked authority to allow him to withdraw
his pleas.
CONCLUSION
The district court lacked authority to allow Boone to with-
draw his pleas. Because Boone’s sole assignment of error lacks
merit and we discern no error with respect to his convictions
and sentences, we affirm.
Affirmed.