State v. Head

CoNCLuSIoN
For each of the above reasons, we find no error requiring
reversal, and we affirm the judgment of the district court.
aFFirmed .
S tate oF neBraSka , appellant , v .
W illoW t. H ead , appellee .
754 N.W.2d 612
Filed August 8, 2008. 	No. S-07-464.
1. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
2. Judgments: Collateral Attack. A party to a proceeding will be bound by the
judgment in the case when collaterally attacking it, even though the judgment was
irregularly or erroneously entered.
3. Double Jeopardy: Juries: Pleas. A defendant is placed legally in jeopardy when
(1) the jury is impaneled and sworn; (2) a judge, hearing a case without a jury,
begins to hear evidence as to the guilt of the defendant; or (3) the trial court accepts
the defendant’s guilty plea.
Petition for further review from the Court of Appeals, irWin ,
S ieverS, and moore, Judges, on appeal thereto from the District
Court for Douglas County, peter c. B ataillon, Judge. Judgment
of Court of Appeals reversed.
Donald W. kleine, Douglas County Attorney, and James m.
masteller for appellant.
James E. Schaefer and Jill A. Podraza for appellee.
H eavican , 	c.J., 	W rigHt , 	connolly , 	gerrard , 	S tepHan ,
mccormack , and miller -lerman , JJ.
per curiam .
BACkgRouND
Willow t. head pled guilty to, and was convicted of, driving
under the influence of alcohol (DuI) in the district court for
Douglas County. At the enhancement hearing, the State intro-
duced evidence that head had been convicted of DuI offenses
354 	276 NEBRASkA REPoRtS
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on December 6, 1993; February 17, 1995; April 29, 2002; and
August 14, 2003. the district court rejected head’s convictions
from December 1993 and April 2002. Regarding the former con-
viction, the court found that principles of collateral estoppel pre-
vented it from being used for sentence enhancement purposes.
the court rejected the latter conviction based on its reading of
State v. Loyd.1
the State appealed to the Court of Appeals pursuant to Neb.
Rev. Stat. § 29-2315.01 (Cum. Supp. 2006). In a memorandum
opinion filed January 3, 2008, the Court of Appeals reversed
the district court’s determination regarding head’s conviction
from April 2002 and remanded the cause to the district court for
resentencing in light of that offense. head petitioned this court
for further review. We granted head’s petition and, for reasons
set forth below, reverse the Court of Appeals’ decision.
ASSIgNmENtS oF ERRoR
head assigns, restated, that the Court of Appeals erred in (1)
concluding that her April 2002 conviction should be used for
sentence enhancement purposes and (2) remanding the cause for
resentencing even if her April 2002 conviction is a valid convic-
tion for sentence enhancement purposes.
StANDARD oF REvIEW
[1] 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.2
ANALySIS
Applicability of Head’s April 2002 DUI Conviction.
As a threshold matter, head challenges the Court of Appeals’
determination that the district court should have considered
head’s DuI conviction from April 2002 at the enhancement
hearing. this conviction was pursuant to omaha mun. Code
§ 36-115 (2001). Less than a year after head was convicted
of a violation of that ordinance, we struck down the ordinance
because its penalty provision conflicted with Neb. Rev. Stat.
1 State v. Loyd, 265 Neb. 232, 655 N.W.2d 703 (2003).
2 State v. Welch, 275 neb. 517, 747 N.W.2d 613 (2008).
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Cite as 276 Neb. 354

§ 60-6,196 (Cum. Supp. 2000).3 this conflict with state law, we
held in Loyd, rendered the omaha ordinance “unenforceable.”4
In light of that determination, the district court found—and head
argues here—that head’s prior conviction under that ordinance
is no longer valid for sentence enhancement purposes.
[2] We considered and rejected an identical argument in
State v. Keen.5 Like head, the defendant in Keen objected to
the use of a prior conviction secured under § 36-115 (1995)
on the grounds that the ordinance was no longer valid, a move
which we characterized as a “collateral attack” on the validity of
the prior conviction.6 Such an attack was ineffective, however,
because “a party to a proceeding will be bound by the judgment
in the case when collaterally attacking it, even though the judg-
ment was irregularly or erroneously entered.”7
head gives us no reason to part ways with Keen, and we reaf-
firm the decision today. Accordingly, like the defendant in Keen,
head should have “raised the issue of the ordinance’s invalidity
when [s]he was prosecuted” under it in April 2002.8 By failing
to do so, head waived her right to challenge the use of that prior
conviction when it was used to enhance her sentence for her
latest DuI offense. Accordingly, the Court of Appeals did not
err when it concluded that the district court should have consid-
ered head’s DuI conviction from April 29, 2002, for sentence
enhancement purposes.
Propriety of Remand.
our conclusion regarding the applicability of head’s DuI
conviction from April 2002 does not automatically mean that
head can be resentenced on remand in light of that offense.
As a general matter, the State cannot appeal an adverse ruling
3 See Loyd, supra note 1.
4 Id. at 236, 655 N.W.2d at 706.
5 State v. Keen, 272 Neb. 123, 718 N.W.2d 494 (2006).
6 Id. at 127, 718 N.W.2d at 498.
7 Id. (emphasis supplied).
8 See id.
356 	276 NEBRASkA REPoRtS

in a criminal case without specific statutory authority.9 In this
case, the State’s appeal is predicated on § 29-2315.01. however,
a neighboring statutory section provides that “[t]he judgment of
the court in any action taken pursuant to section 29-2315.01 shall
not be reversed nor in any manner affected when the defendant
in the trial court has been placed legally in jeopardy . . . .”10
this court has, at times, reached contradictory interpretations
of the phrase “placed legally in jeopardy.” In State v. Neiss,11
we held that this phrase was no more stringent than the Double
Jeopardy Clause in the federal Constitution. Because that clause
is not offended if an appellate court remands a cause for resen-
tencing,12 the Court of Appeals’ action would be valid if Neiss
were the law.
[3] however, in State v. Vasquez,13 decided 6 years later,
we held that the “placed legally in jeopardy” language is
more exacting than the Double Jeopardy Clause. Vasquez con-
cluded that a defendant is placed legally in jeopardy—and thus
§ 29-2316 precludes a remand—when (1) the jury is impaneled
and sworn; (2) a judge, hearing a case without a jury, begins to
hear evidence as to the guilt of the defendant; or (3) the trial
court accepts the defendant’s guilty plea.14 While this conclusion
contradicted the central holding in Neiss, Vasquez did not men-
tion or explicitly overrule that case.
We granted head’s petition specifically to resolve these con-
tradictory interpretations of the “placed legally in jeopardy”
language. While this case was pending, however, the same
issue arose tangentially in another case on our docket, State v.
Hense.15 In Hense, a majority of this court upheld our decision
9 State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006).
10 Neb. Rev. Stat. § 29-2316 (Cum. Supp. 2006).
11 State v. Neiss, 260 Neb. 691, 619 N.W.2d 222 (2000). See, also, State v.
Wren, 234 Neb. 291, 450 N.W.2d 684 (1990); State v. Schall, 234 Neb. 101,
449 N.W.2d 225 (1989).
12 See Monge v. California, 524 u.S. 721, 118 S. Ct. 2246, 141 L. Ed. 2d 615
(1998).
13 Vasquez, supra note 9.
14 See id.
15 State v. Hense, ante p. 313, 753 N.W.2d 832 (2008).
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Cite as 276 Neb. 354

in Vasquez based on the statutory language in § 29-2316, and
expressly overruled Neiss. thus, the legal principles established
in Vasquez must guide our decision today.
the trial court accepted head’s guilty plea, thus placing her
legally in jeopardy. under Vasquez and Hense, this prevented
the Court of Appeals from remanding the cause back to the trial
court for resentencing, “even though the district court erred” by
failing to consider head’s April 2002 DuI conviction for sen-
tence enhancement purposes.16
CoNCLuSIoN
We conclude that the Court of Appeals did not err when
it held that head’s April 2002 DuI conviction should have
been taken into account when enhancing head’s sentence for
her latest DuI offense. however, our recent interpretation of
§ 29-2316 in Hense precludes a remand in this case despite the
district court’s error.
reverSed .
16 Vasquez, supra note 9, 271 Neb. at 915, 716 N.W.2d at 451.
gerrard, J., concurring in part, and in part dissenting.
I agree with the majority’s conclusion that pursuant to State v.
Keen,1 the Court of Appeals correctly reasoned that head’s 2002
conviction for DuI should have been used as a prior offense for
purposes of sentencing enhancement. But I disagree with the
conclusion that head cannot be resentenced. For the reasons set
forth more fully in my dissenting opinion in State v. Hense,2 I
believe the Court of Appeals was correct in remanding the cause
to the district court and instructing the district court to resen-
tence head for fourth-offense DuI. I dissent from the majority’s
conclusion to the contrary, and would affirm the judgment of the
Court of Appeals.
H eavican, C.J., and S tepHan, J., join in this concurrence
and dissent.
1 State v. Keen, 272 Neb. 123, 718 N.W.2d 494 (2006).
2 State v. Hense, ante p. 313, 753 N.W.2d 832 (2008) (gerrard, J., concurring
in part, and in part dissenting; heavican, C.J., and Stephan, J., join).
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