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www.nebraska.gov/apps-courts-epub/
06/01/2018 09:07 AM CDT
- 887 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. RATUMAIMURI
Cite as 299 Neb. 887
State of Nebraska, appellee, v.
A ntonio D. R atumaimuri, appellant.
___ N.W.2d ___
Filed May 11, 2018. No. S-17-187.
1. Convicted Sex Offender: Proof. Under Neb. Rev. Stat. § 29-4011(1)
(Reissue 2016), the State must prove that the defendant (1) is required
to register under the Sex Offender Registration Act, Neb. Rev. Stat.
§ 29-4001 et seq. (Reissue 2016), and (2) violated a section of the act.
2. Convicted Sex Offender. Under Neb. Rev. Stat. § 29-4003(1)(b)(i)(B)
(Reissue 2016), a trial court must determine whether a defendant who
has committed one of the offenses listed therein is subject to the Sex
Offender Registration Act, Neb. Rev. Stat. § 29-4001 et seq. (Reissue
2016), during the proceedings on the underlying conviction and
sentence.
3. Judgments: Words and Phrases. A judgment is an adjudication of
all the matters that are essential to support it, and every proposition
assumed or decided by the court leading up to the final conclusion and
on which such conclusion is based is as effectually passed upon as the
ultimate question which is finally resolved.
4. Criminal Law: Judgments: Sentences: Appeal and Error. In a
criminal case, the judgment from which the appellant may appeal is
the sentence.
5. Convicted Sex Offender: Appeal and Error. Whether a defendant is
subject to the Sex Offender Registration Act, Neb. Rev. Stat. § 29-4001
et seq. (Reissue 2016), based on a guilty plea or conviction for an
offense that is not inherently sexual must be reviewed on direct appeal
from the underlying conviction and sentence.
6. Judgments: Collateral Attack. When a judgment is attacked in a
way other than by proceeding in the original action to have it vacated,
reversed, or modified, or by a proceeding in equity to prevent its
enforcement, the attack is a collateral attack.
7. ____: ____. A judgment that is not void, even if erroneous, cannot be
collaterally attacked.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. RATUMAIMURI
Cite as 299 Neb. 887
8. Convicted Sex Offender: Collateral Attack: Appeal and Error. A
challenge to a determination that the Sex Offender Registration Act,
Neb. Rev. Stat. § 29-4001 et seq. (Reissue 2016), applies to a defendant
for a listed offense that is not inherently sexual outside of a direct appeal
from the underlying conviction and sentence is an impermissible collat-
eral attack.
9. Courts: Judgments: Appeal and Error. Upon further review from
a judgment of the Nebraska Court of Appeals, the Nebraska Supreme
Court will not reverse a judgment which it deems to be correct sim-
ply because its reasoning differs from that employed by the Court
of Appeals.
Petition for further review from the Court of Appeals, Pirtle,
R iedmann, and A rterburn, Judges, on appeal thereto from the
District Court for Lancaster County, Susan I. Strong, Judge.
Judgment of Court of Appeals affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and
Nathan J. Sohriakoff for appellant.
Douglas J. Peterson, Attorney General, and Joe Meyer for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and Derr and Urbom, District Judges.
Funke, J.
The Lancaster County District Court convicted Antonio Y.
Ratumaimuri of violating the registration requirements of the
Sex Offender Registration Act (SORA).1 Before the Nebraska
Court of Appeals, Ratumaimuri assigned as error that there was
insufficient evidence to support his conviction. Specifically, he
argued the State had failed to prove he was subject to SORA’s
requirements, because it failed to present evidence that—dur-
ing the proceedings for a previous conviction and sentence—
the county court for Lancaster County had made a factual find-
ing pursuant to § 29-4003(1)(b)(i)(B).
1
See Neb. Rev. Stat. § 29-4001 et seq. (Reissue 2016).
- 889 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. RATUMAIMURI
Cite as 299 Neb. 887
The Court of Appeals affirmed Ratumaimuri’s conviction
on the sufficiency of the evidence. However, rather than rely-
ing on the determination in the previous proceedings—that
Ratumaimuri was subject to SORA—alone, the Court of Appeals
concluded that determination was valid because it was based on
an implied factual finding pursuant to § 29-4003(1)(b)(i)(B).
On further review, we hold that (1) a determination that
a defendant is subject to SORA must be reviewed on direct
appeal from the underlying conviction and sentence and (2)
such a determination is not subject to an impermissible collat-
eral attack in subsequent proceedings. Accordingly, the Court
of Appeals erred in analyzing whether the determination in
the previous proceedings was valid. While our reasoning dif-
fers from that employed by the Court of Appeals, our ultimate
conclusion on the judgment is the same. Therefore, we affirm.
BACKGROUND
In November 2015, a police officer found Ratumaimuri
sleeping in a parking garage in Lincoln, Nebraska. The officer
determined Ratumaimuri was a registered sex offender but had
not updated his address since July 2015, when he was incarcer-
ated. Ratumaimuri admitted he had been transient since he was
released from prison, in September 2015, and was in viola-
tion of his SORA requirements because he had not registered
with the Lancaster County Sheriff’s Department. The officer
arrested Ratumaimuri for violating SORA by failing to update
his address or status.
The offense that subjected Ratumaimuri to SORA’s require-
ments was a 2014 conviction for third degree assault. The
State had amended the charge from third degree sexual assault
in exchange for Ratumaimuri’s agreeing to plead no contest.
The State informed Ratumaimuri, however, that the county
court could still determine he was subject to SORA, under
the plea bargain. At the plea hearing, the county court ruled
that Ratumaimuri was subject to SORA’s requirements and
that he had committed a “sexual offense.” Ratumaimuri was
provided with a “Notification of Registration Responsibilities
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. RATUMAIMURI
Cite as 299 Neb. 887
Under [SORA]” form, which stated: “Your conviction or
guilty plea has caused you to be subject to [SORA].” At the
sentencing hearing, the county court questioned Ratumaimuri
about whether he had read and signed the notification form
and whether he understood his responsibilities as a sex
offender. Ratumaimuri did not appeal from that conviction
or sentence.
In the current proceedings, Ratumaimuri was charged with
violating SORA’s registration requirements, under § 29-4011(1).
The State offered into evidence the record from his third degree
assault conviction, which contained the determination that he
was subject to SORA. After a stipulated bench trial, the district
court found Ratumaimuri guilty and sentenced him to 12 to 18
months’ imprisonment. Ratumaimuri filed a timely appeal.
On appeal, Ratumaimuri assigned the district court erred in
convicting him, because there was not sufficient evidence to
prove his guilt. He argued the State failed to prove his previ-
ous conviction subjected him to SORA’s requirements, because
there was no factual finding under § 29-4003(1)(b)(i)(B) that
the crime involved either “sexual penetration” or “sexual con-
tact.” The State argued Ratumaimuri’s appeal itself was an
impermissible collateral attack on his previous conviction
and sentence.
The Court of Appeals determined that Ratumaimuri’s
appeal, regarding the sufficiency of the evidence, was not
a collateral attack and affirmed Ratumaimuri’s conviction,
because the evidence was sufficient to prove Ratumaimuri
was subject to SORA.2 In reaching its conclusion on the suf-
ficiency of the evidence, the Court of Appeals analyzed the
determination of SORA’s application to Ratumaimuri in the
prior proceedings and concluded it was valid because the
county court had made an implied finding of fact pursuant to
§ 29-4003(1)(b)(i)(B).3
2
State v. Ratumaimuri, No. A-17-187, 2017 WL 5713404 (Neb. App. Nov.
28, 2017) (selected for posting to court website).
3
Id.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. RATUMAIMURI
Cite as 299 Neb. 887
Both Ratumaimuri and the State petitioned for further
review. We denied Ratumaimuri’s petition, which assigned
error to the Court of Appeals’ holding that sufficient evidence
supported his conviction. We granted the State’s petition.
ASSIGNMENT OF ERROR
The State assigns, restated, that the Court of Appeals erred
in concluding Ratumaimuri’s appeal was not an impermissible
collateral attack on a previous judgment.
ANALYSIS
[1] Section 29-4011(1) provides: “Any person required to
register under [SORA] who violates the act is guilty of a Class
IIIA felony.” Accordingly, for a conviction under § 29-4011(1),
the State is required to prove that the defendant (1) is required
to register under SORA and (2) violated a section of SORA.
Ratumaimuri did not argue on appeal that he did not violate a
section of SORA, so only the sufficiency of evidence regard-
ing whether he was required to register under SORA was
at issue.
In reviewing a criminal conviction for a sufficiency of the
evidence claim, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.4
The Court of Appeals determined that the record from
Ratumaimuri’s third degree assault conviction provided suf-
ficient evidence to support his conviction. Since we denied
Ratumaimuri’s petition for further review regarding this
issue, we do not reconsider the Court of Appeals’ hold-
ing that Ratumaimuri’s conviction was supported by suffi-
cient evidence.
The State contends that Ratumaimuri’s appeal as a whole
was an impermissible attack on a prior conviction. However,
4
State v. Wofford, 298 Neb. 412, 904 N.W.2d 649 (2017).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. RATUMAIMURI
Cite as 299 Neb. 887
since the appeal raised only one assignment of error, that
being the sufficiency of the evidence, the appeal was proper.
Nonetheless, Ratumaimuri specifically argued that the record
from the prior proceeding was insufficient to subject him to
SORA. As a result, we must consider whether this argument
constituted an impermissible collateral attack on a previous
judgment and whether the Court of Appeals erred in addressing
the merits of this argument.
Generally, SORA requires individuals that plead guilty to
or are convicted of certain enumerated offenses, also known
as automatically registerable offenses, to register with the
county sheriff in the counties where they reside, work, and
attend school.5 SORA requirements may also apply to individu-
als that plead guilty to or are convicted of offenses that are
not inherently sexual, but which are listed in subsections (I)
through (VII), (IX), and (X) of § 29-4003(1)(b)(i)(A). Third
degree assault is one of the listed offenses that is not inher-
ently sexual.6
Section 29-4003(1)(b)(i)(B) sets out the requirements to
bring an offense that is not inherently sexual within SORA,
stating that “[i]n order for [SORA] to apply to the [listed not
inherently sexual offenses], a court shall have found that evi-
dence of sexual penetration or sexual contact, as those terms
are defined in section 28-318, was present in the record . . . .”
In State v. Norman (Norman I),7 on direct appeal, and State
v. Norman (Norman II),8 on appeal after remand, we consid-
ered a trial court’s § 29-4003(1)(b)(i)(B) determination for an
underlying conviction of third degree assault. Both appeals
assigned error to the district court’s determination that the
defendant was subject to SORA’s requirements for his third
degree assault conviction. In Norman I, we reversed the court’s
5
See § 29-4001 et seq.
6
§ 29-4003(1)(b)(i)(A)(VI).
7
State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012).
8
State v. Norman, 285 Neb. 72, 824 N.W.2d 739 (2013).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. RATUMAIMURI
Cite as 299 Neb. 887
determination that SORA was applicable, because the court
made the requisite finding solely on the State’s factual basis
for the plea and not the evidence on the record, which denied
the defendant procedural due process. In Norman II, we deter-
mined the burden for proving that the offense included “sexual
penetration” or “sexual contact,” under § 29-4003(1)(b)(i)(B),
was by clear and convincing evidence, and we held that there
was sufficient evidence to support the court’s factual finding of
“sexual contact.”
[2] As evidenced by these opinions, the trial court must
determine whether a defendant, who has committed a listed
offense that is not inherently sexual, is subject to SORA during
the proceedings on the underlying conviction and sentence.9
This is also supported by § 29-4003(1)(b)(i)(B)’s requirement
that the determination be based on the evidence in the record,
because the court on the underlying conviction is in the best
position to consider the facts present in the case before it.
[3-5] This court has recognized that a judgment is an adju-
dication of all the matters that are essential to support it, and
every proposition assumed or decided by the court leading up
to the final conclusion and on which such conclusion is based
is as effectually passed upon as the ultimate question which is
finally resolved.10 In a criminal case, the judgment from which
the appellant may appeal is the sentence.11 Thus, we hold that
whether a defendant is subject to SORA based on a guilty plea
or conviction for an offense that is not inherently sexual must
be reviewed on direct appeal from the underlying conviction
and sentence.12
[6-8] When a judgment is attacked in a way other than by
proceeding in the original action to have it vacated, reversed,
or modified, or by a proceeding in equity to prevent its
9
See, also, State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
10
State v. Keen, 272 Neb. 123, 718 N.W.2d 494 (2006).
11
Dugan v. State, 297 Neb. 444, 900 N.W.2d 528 (2017).
12
See Neb. Rev. Stat. § 25-1911 (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. RATUMAIMURI
Cite as 299 Neb. 887
enforcement, the attack is a collateral attack.13 A judgment that
is not void, even if erroneous, cannot be collaterally attacked.14
Therefore, we further hold that a challenge to a determina-
tion that SORA applies to a defendant for a listed offense that
is not inherently sexual outside of a direct appeal from the
underlying conviction and sentence is an impermissible col-
lateral attack.
As a result, in the instant matter, we conclude Ratumaimuri’s
argument that the determination in the previous proceedings
was invalid constituted an impermissible collateral attack
on the judgment of his previous conviction and sentence.
Therefore, the Court of Appeals erred in addressing the merits
of Ratumaimuri’s argument and not relying solely on the prior
determination that Ratumaimuri was subject to SORA.
We note that these holdings do not conflict with our earlier
opinion in State v. Torres.15 At the time we decided Torres,
SORA applied only to the automatically registerable offenses
now listed in § 29-4003(1)(a).16 SORA provides that its require-
ments apply to these automatically registerable offenses with-
out any determination during the proceedings on the underly-
ing conviction.17 After our decision in Torres, the Legislature
amended SORA to add the offenses that are not inherently sex-
ual and the requisite findings of sexual penetration or sexual
contact.18 Our opinions in Norman I and Norman II addressed
these new considerations.
Further, Torres is distinguishable from Ratumaimuri’s matter
and our opinions in Norman I and Norman II as it concerned
Reyes Torres’ standing to challenge his conviction and sen-
tence by attacking the constitutionality of SORA. Torres was
13
Fetherkile v. Fetherkile, ante p. 76, 907 N.W.2d 275 (2018).
14
Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016).
15
State v. Torres, 254 Neb. 91, 574 N.W.2d 153 (1998).
16
See § 29-4003 (Cum. Supp. 1996).
17
See § 29-4003(1)(a) (Reissue 2016).
18
2009 Neb. Laws, L.B. 285.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. RATUMAIMURI
Cite as 299 Neb. 887
convicted of third degree sexual assault, which automatically
made him subject to SORA. During the sentencing, Torres was
advised of the requirement, but the district court’s sentencing
order did not address SORA’s requirements. Further, Torres did
not argue to the sentencing court that SORA was unconstitu-
tional. On appeal, however, Torres argued that his sentence was
excessive because SORA potentially increased his sentence for
failing to register under it.
Our decision in Torres first addressed the fact that Torres
did not raise the constitutional challenge before the sentenc-
ing court. We noted that an appellate court will not consider a
constitutional question unless the question has been properly
presented to the trial court for disposition. We then noted
the proposition of law that “defendants are prohibited from
attempting to circumvent or avoid conviction under a particular
statute by asserting a constitutional challenge to another, col-
lateral statute which is irrelevant to the prosecution.”19 As a
result, we determined that the underlying conviction could not
be attacked based upon the constitutionality of SORA.
[9] While our reasoning differs from that employed by the
Court of Appeals, our ultimate conclusion on the judgment
is the same. Upon further review from a judgment of the
Nebraska Court of Appeals, the Nebraska Supreme Court will
not reverse a judgment which it deems to be correct simply
because its reasoning differs from that employed by the Court
of Appeals.20
CONCLUSION
The judgment of the Nebraska Court of Appeals is affirmed.
A ffirmed.
19
Torres, supra note 15, 254 Neb. at 94, 574 N.W.2d at 155.
20
In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).