Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/28/2021 08:10 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WEATHERS
Cite as 30 Neb. App. 189
State of Nebraska, appellee, v.
Brandon J. Weathers,
appellant.
___ N.W.2d ___
Filed September 21, 2021. No. A-21-108.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. ____: ____. Before reaching the merits of the legal issue presented for
review, an appellate court must determine whether it has jurisdiction
over the matter.
3. ____: ____. Appellate courts have an independent obligation to ensure
they have appellate jurisdiction.
4. Constitutional Law: Postconviction: Collateral Attack: Final Orders.
The Nebraska Postconviction Act is the primary procedure for bringing
collateral attacks on final judgments in criminal cases based upon con-
stitutional principles.
5. Postconviction: Collateral Attack. If a defendant has a collateral attack
that could be asserted under the Nebraska Postconviction Act, that act is
his or her sole remedy.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Appeal dismissed.
Brandon J. Weathers, pro se.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Riedmann, Bishop, and Arterburn, Judges.
- 190 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WEATHERS
Cite as 30 Neb. App. 189
Riedmann, Judge.
INTRODUCTION
Brandon J. Weathers appeals the order of the district court
for Douglas County, which denied his motion to vacate his
convictions and sentences. Finding that the district court lacked
jurisdiction over Weathers’ motion, we dismiss the appeal.
BACKGROUND
Weathers was convicted of two felony charges in 2015. This
court affirmed his convictions and sentences on direct appeal.
See State v. Weathers, No. A-16-305, 2017 WL 24777 (Neb.
App. Jan. 3, 2017) (selected for posting to court website).
Thereafter, he filed a motion for postconviction relief, which the
district court denied, and we affirmed that decision on appeal.
See State v. Weathers, No. A-18-483, 2019 WL 1375345 (Neb.
App. Mar. 26, 2019) (selected for posting to court website).
In January 2021, Weathers filed a pro se “Motion to Vacate
Sentences and Conviction” in the original criminal case filed in
the district court. The motion states that it was filed pursuant to
“Neb.Rev.Stat. [§] 25-2001 et seq. [(Reissue 2016)]” and seeks
to vacate Weathers’ convictions and sentences due to a viola-
tion of his Sixth Amendment right to counsel.
No hearing was held on the motion, and the State did not
respond. The district court entered an order detailing the his-
tory of the case in that Weathers’ convictions and sentences
were affirmed on direct appeal and that the denial of his post-
conviction motion was also affirmed on appeal. The court’s
order indicates it also denied a second motion for postconvic-
tion relief that Weathers had filed in September 2020 and a
motion to alter or amend that he filed in October 2020. The
court therefore denied the present pleading and its accom-
panying motion to proceed in forma pauperis as frivolous.
Weathers appeals.
ASSIGNMENT OF ERROR
Weathers assigns that the district court erred in denying his
motion to vacate.
- 191 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WEATHERS
Cite as 30 Neb. App. 189
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law. State v. Reames, 308 Neb. 361, 953 N.W.2d 807 (2021).
ANALYSIS
[2,3] Before reaching the merits of the legal issue presented
for review, we must determine whether we have jurisdiction
over this matter. See id. Appellate courts have an independent
obligation to ensure they have appellate jurisdiction. See id.
Weathers seeks to have vacated his criminal convictions
and sentences. Although the district court and the State treated
Weathers’ motion as a successive motion for postconviction
relief, Weathers makes clear that he filed his motion to vacate
under § 25-2001 and not under the postconviction statutes.
Section 25-2001 provides the manner in which a court in a
civil action may vacate a judgment within the same term it was
entered or out of term on certain grounds.
Despite Weathers’ attempt to invoke § 25-2001, under the
facts of this case, the postconviction statutes offer the sole
remedy for collaterally attacking his final convictions and sen-
tences. In State v. Smith, 288 Neb. 797, 851 N.W.2d 665 (2014),
the defendant was convicted of kidnapping and sentenced to
life imprisonment in 1983. In 2013, he filed a pro se “‘Motion
to Correct Illegal, Unconstitutional and Void Sentence,’” alleg-
ing that his sentence was illegal, unconstitutional, and void
under a recent U.S. Supreme Court decision. State v. Smith,
288 Neb. at 798-99, 851 N.W.2d at 667. The district court
found that it lacked jurisdiction over the defendant’s motion
because it was not brought pursuant to a recognized procedure
under Nebraska law and because the sentence was valid and
could not be modified, amended, or revised.
[4,5] On appeal, the Nebraska Supreme Court observed that
the defendant had not brought the action under the Nebraska
Postconviction Act, Neb. Rev. Stat. §§ 29-3001 to 29-3004
(Reissue 2016) (the Act), and that he acknowledged that such
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WEATHERS
Cite as 30 Neb. App. 189
a claim would be time barred under § 29-3001(4). Rather, the
defendant sought relief under a purported common-law remedy
providing that a void judgment may be attacked at any time
in any proceeding. The Supreme Court rejected this argument,
finding that the Act is the primary procedure for bringing col-
lateral attacks on final judgments in criminal cases based upon
constitutional principles and that if a defendant has a collateral
attack that could be asserted under the Act, that the Act is his
or her sole remedy. See State v. Smith, supra. The Supreme
Court noted that the defendant could have asserted his claim
under the Act, but failed to do so within the time limits pre-
scribed by the Legislature. It therefore concluded that the dis-
trict court did not err in determining that it lacked jurisdiction
to consider the defendant’s motion and in dismissing it without
reaching its merit. And because the district court lacked juris-
diction, the Supreme Court similarly lacked jurisdiction, and it
therefore dismissed the appeal.
Likewise, here, Weathers is clear that he did not bring his
motion to vacate under the Act, but instead, he attempts to
bring it under § 25-2001, a statute allowing for the vacation
of a judgment in a civil action. The basis for Weathers’ motion
is that he represented himself at trial and now alleges that the
district court did not advise him of his Sixth Amendment right
to counsel. This constitutional basis for his motion brings it
within the purview of the Act; therefore, the Act is his sole
remedy for collaterally attacking his final convictions and sen-
tences. As such, the district court lacked jurisdiction over his
motion. See, also, State v. Dunster, 270 Neb. 773, 707 N.W.2d
412 (2005) (finding that court lacked jurisdiction over motion
to vacate death sentence when not brought under postconvic-
tion statutes). Because the district court lacked jurisdiction, so,
too, do we. We therefore dismiss the appeal.
CONCLUSION
We dismiss the appeal for lack of jurisdiction.
Appeal dismissed.