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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. THIESZEN
Cite as 295 Neb. 293
State of Nebraska, appellant, v.
Sydney L. Thieszen, appellee.
___ N.W.2d ___
Filed December 9, 2016. No. S-16-004.
1. Jurisdiction: Appeal and Error. The question of jurisdiction is a
question of law, which an appellate court resolves independently of the
trial court.
2. Postconviction: Appeal and Error. In appeals from postconvic-
tion proceedings, an appellate court independently resolves questions
of law.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues pre-
sented for review, it is the power and duty of an appellate court to deter-
mine whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final order entered
by the court from which the appeal is taken.
5. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902
(Reissue 2016), the three types of final orders which may be reviewed
on appeal are (1) an order which affects a substantial right in an action
and which in effect determines the action and prevents a judgment, (2)
an order affecting a substantial right made during a special proceeding,
and (3) an order affecting a substantial right made on summary applica-
tion in an action after a judgment is rendered.
6. Postconviction: Final Orders: Appeal and Error. A postconviction
proceeding is a special proceeding for appellate purposes.
7. Postconviction: Final Orders: Sentences. An order vacating a sentence
in a postconviction proceeding is a final order.
8. Constitutional Law: Courts. Upon questions involving the interpreta-
tion of the U.S. Constitution, the decision of the U.S. Supreme Court is
the supreme law, by which state courts are bound.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. THIESZEN
Cite as 295 Neb. 293
Appeal from the District Court for York County: James C.
Stecker, Judge. Affirmed and remanded for resentencing.
Douglas J. Peterson, Attorney General, Erin E. Tangeman,
and Corey M. O’Brien for appellant.
Jeffery A. Pickens, of Nebraska Commission on Public
Advocacy, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
K elch, J.
NATURE OF CASE
Sydney L. Thieszen was 14 years old when he murdered
his 12-year-old sister in 1987. Thieszen was convicted of
first degree murder and sentenced to life imprisonment. In
June 2013, Thieszen filed a motion for postconviction relief,
alleging that his sentence was cruel and unusual punish-
ment in light of the U.S. Supreme Court decision in Miller v.
Alabama.1 The district court granted Thieszen’s motion, and
the State appeals.
BACKGROUND
Thieszen was charged by information with one count of
murder in the first degree and one count of use of a deadly
weapon to commit a felony. Thieszen pled guilty to one count
of murder in the second degree and one count of use of a
firearm to commit a felony. At the time of his convictions,
the crime of murder in the second degree was punishable by
10 years’ to life imprisonment. Thieszen was given maximum
sentences for both crimes: life imprisonment for the murder
conviction and a consecutive term of 80 to 240 months’ impris-
onment for the use of a firearm conviction.
1
Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407
(2012).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. THIESZEN
Cite as 295 Neb. 293
In 1995, Thieszen’s convictions were vacated due to the
omission of the element of “malice” in his murder charge.
Thereafter, a jury trial was conducted, and Thieszen was
convicted of first degree murder and use of a firearm to com-
mit a felony. Thieszen was again sentenced to life imprison-
ment for the murder conviction and a consecutive term of
80 to 240 months’ imprisonment for the use of a firearm
conviction.
On June 19, 2013, Thieszen filed a motion for postconvic-
tion relief, claiming that the life imprisonment sentence he
received as a result of his first degree murder conviction was
cruel and unusual punishment in light of the U.S. Supreme
Court decision in Miller v. Alabama. In Miller v. Alabama,
the U.S. Supreme Court held that “mandatory life without
parole for those under the age of 18 at the time of their crimes
violates the Eighth Amendment’s prohibition on ‘cruel and
unusual punishments.’”2
The district court found that Thieszen’s life sentence was
clearly within the parameters of the holding of Miller v.
Alabama; that based on this court’s subsequent jurisprudence,3
the rule in Miller v. Alabama applies retroactively; and that,
therefore, Thieszen was entitled to postconviction relief.
Accordingly, the district court vacated Thieszen’s life sentence
and set a hearing to determine Thieszen’s sentence on the first
degree murder conviction. The State appeals.
ASSIGNMENTS OF ERROR
The State assigns that the district court erred by granting
postconviction relief and vacating Thieszen’s sentence of life
imprisonment for his first degree murder conviction.
2
Id., 132 S. Ct. at 2460.
3
State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 (2014); State v. Castaneda,
287 Neb. 289, 842 N.W.2d 740 (2014).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. THIESZEN
Cite as 295 Neb. 293
STANDARD OF REVIEW
[1] The question of jurisdiction is a question of law, which
an appellate court resolves independently of the trial court.4
[2] In appeals from postconviction proceedings, an appel-
late court independently resolves questions of law.5
ANALYSIS
[3] Before reaching the legal issues presented for review,
it is the power and duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespec-
tive of whether the issue is raised by the parties.6
[4,5] For an appellate court to acquire jurisdiction of an
appeal, there must be a final order entered by the court from
which the appeal is taken.7 Under Neb. Rev. Stat. § 25-1902
(Reissue 2016), the three types of final orders which may be
reviewed on appeal are (1) an order which affects a substantial
right in an action and which in effect determines the action and
prevents a judgment, (2) an order affecting a substantial right
made during a special proceeding, and (3) an order affecting
a substantial right made on summary application in an action
after a judgment is rendered.8
[6,7] This case involves the second type of final order—
an order affecting a substantial right made during a special
proceeding. The terms “special proceeding” and “substantial
right” are not defined by statute, but have been interpreted
by case law. Our case law establishes that a postconviction
4
State v. Penado, 282 Neb. 495, 804 N.W.2d 160 (2011).
5
State v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014); State v. Baker,
286 Neb. 524, 837 N.W.2d 91 (2013); State v. Marks, 286 Neb. 166, 835
N.W.2d 656 (2013); State v. Pittman, 285 Neb. 314, 826 N.W.2d 862
(2013); State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
6
See State v. Hudson, 273 Neb. 42, 727 N.W.2d 219 (2007).
7
Id.
8
State v. Vela, 272 Neb. 287, 721 N.W.2d 631 (2006).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. THIESZEN
Cite as 295 Neb. 293
proceeding is a special proceeding for appellate purposes.9
Although this court did not use the term “substantial right,” we
have nevertheless found that an order vacating a sentence in a
postconviction proceeding is a final order.10 This is understand-
able in light of the fact that the order granting and disposing
of Thieszen’s entire postconviction motion by vacating his
sentence disposes of the postconviction proceeding, which
was civil in nature. Whereas, resentencing will again be part
of the criminal proceeding. Accordingly, we find that the dis-
trict court entered a final order when it vacated the sentence
of Thieszen.
[8] In Miller v. Alabama, the U.S. Supreme Court held that
the “Eighth Amendment forbids a sentencing scheme that man-
dates life in prison without possibility of parole for juvenile
offenders.”11 In the recent case of Montgomery v. Louisiana,12
the Court verified that the rule in Miller v. Alabama was ret-
roactive on state collateral review. Upon questions involving
the interpretation of the U.S. Constitution, the decision of the
U.S. Supreme Court is the supreme law, by which state courts
are bound.13
The State asserts that the district court erred in finding it
was bound by Miller v. Alabama and that, therefore, the dis-
trict court erred in granting Thieszen postconviction relief. The
State claims that the district court was not bound by Miller v.
Alabama for two reasons; the State argues first that Thieszen’s
sentence to life imprisonment was not mandatory and, second,
that Thieszen has a possibility of parole.
9
See State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).
10
See State v. Bartlett, 210 Neb. 886, 317 N.W.2d 102 (1982).
11
Miller v. Alabama, supra note 1, 132 S. Ct. at 2469.
12
Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193 L. Ed. 2d 599
(2016).
13
See State v. Cozzens, 241 Neb. 565, 490 N.W.2d 184 (1992).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. THIESZEN
Cite as 295 Neb. 293
The State claims first that the life sentence was not manda-
tory, but discretionary, because of Neb. Rev. Stat. § 29-2204(2)
(Reissue 1979), which provided:
Whenever the defendant was under eighteen years of
age at the time he committed the crime for which he
was convicted, the court may in its discretion, instead of
imposing the penalty provided for the crime, make such
disposition of the defendant as the court deems proper
under the provisions of Chapter 43, article 2, as to per-
sons adjudicated in the juvenile courts.
However, as Thieszen noted in his brief, although the stat-
ute cited above was applicable in 1987, when the crime was
committed, its use in 1996, when Thieszen was 23 years of
age, was not a viable option for a murder conviction. Thus, we
conclude that § 29-2204(2) is not applicable to the question of
whether Thieszen was sentenced to a mandatory term of life
imprisonment.
Second, the State argues that Thieszen’s life sentence
does not equate to Miller v. Alabama’s “life without parole,”
because at the time Thieszen was sentenced, the sentencing
scheme was such that, after serving 30 calendar years of the
original sentence, Thieszen would be “considered for pro-
gramming, including recommendation to the Board of Pardons
for commutation of the life sentence to a definite number
of years.”14
We have already rejected this argument in State v.
Castaneda.15 In State v. Castaneda, the juvenile defendant,
Juan Castaneda, was sentenced to two terms of life imprison-
ment for first degree murder. At the time Castaneda was sen-
tenced, Nebraska’s statutes provided that a juvenile convicted
of first degree murder was subject to mandatory life impris-
onment.16 Although the statutes did not expressly contain the
14
Brief for appellant at 14-15.
15
State v. Castaneda, supra note 3.
16
See Neb. Rev. Stat. §§ 28-105 and 28-303 (Reissue 2008).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. THIESZEN
Cite as 295 Neb. 293
qualifier “without parole,” a committed offender becomes
eligible for parole in Nebraska after serving “one-half the
minimum term of his or her sentence.”17 In State v. Castaneda,
we explained that “[b]ecause there is no way to compute ‘one-
half’ of a life sentence, an offender sentenced to life impris-
onment in Nebraska for first degree murder is not eligible
for parole.”18
[9] In State v. Castaneda, the State argued that Miller
v. Alabama did not apply to Castaneda’s sentence, because
offenders like Castaneda had their record reviewed by the
Board of Parole every 10 years and could become eligible
for parole if their sentence was commuted. We rejected this
argument and found that the “mere existence of a remote
possibility of parole does not keep Nebraska’s sentencing
scheme from falling within the dictates of Miller”19 and further
found that “Nebraska’s sentence of life imprisonment is effec-
tively life imprisonment without parole under the rationale of
Miller . . . , because it provides no meaningful opportunity to
obtain release.”20
In the present case, the State attempts to distinguish
State v. Castaneda by suggesting that, unlike Castaneda,
Thieszen’s sentence was likely to be commuted to a term of
years. The State references a letter from the Nebraska Board
of Pardons, which was entered into evidence. The letter states
that since 1969, there have been 28 offenders who were sen-
tenced to life imprisonment as a result of first degree murder
convictions who have had their sentences commuted to a
term of years. However, this letter tells us little about the
likelihood that Thieszen’s life sentence would be commuted
and does not change the discretionary nature of a grant of
commutation.
17
See Neb. Rev. Stat. § 83-1,110(1) (Reissue 2014).
18
State v. Castaneda, supra note 3, 287 Neb. at 311, 842 N.W.2d at 757.
19
Id. at 312, 842 N.W.2d at 757.
20
Id. at 313-14, 842 N.W.2d at 758.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. THIESZEN
Cite as 295 Neb. 293
Therefore, based upon the principles outlined by the U.S.
Supreme Court, the district court’s decision to grant Thieszen’s
motion for postconviction relief must be affirmed.
CONCLUSION
The district court was bound by U.S. Supreme Court prec-
edent in Miller v. Alabama, because the relevant sentencing
scheme mandated life imprisonment without the possibility
for parole. We therefore affirm the district court’s decision
to grant Thieszen’s motion for postconviction relief, and we
remand the cause for resentencing.
A ffirmed and remanded for resentencing.