Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/20/2022 01:06 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McALEESE
Cite as 311 Neb. 243
State of Nebraska, appellee, v.
Andrew McAleese, appellant.
___ N.W.2d ___
Filed March 25, 2022. No. S-21-255.
1. Jurisdiction: Appeal and Error. Determination of a jurisdictional
issue which does not involve a factual dispute is a matter of law which
requires an appellate court to reach its conclusions independent from a
trial court.
2. ____: ____. Subject matter jurisdiction is a question of law for the court,
which requires an appellate court to reach a conclusion independent of
the lower court’s decision.
3. Criminal Law: Statutes. Where a criminal procedure is not authorized
by statute, it is unavailable to a defendant in a criminal proceeding.
4. Criminal Law: Jurisdiction. When an unauthorized motion is filed in a
criminal case, the court lacks subject matter jurisdiction to adjudicate it.
5. Judgments: Jurisdiction: Collateral Attack. When a collateral attack
on a criminal judgment is not raised in a recognized proceeding, the
court lacks jurisdiction over the claim.
6. Criminal Law: Judgments: Jurisdiction. A criminal judgment is void
when the court rendering it lacks jurisdiction or a legal basis to impose
judgment.
Appeal from the District Court for Adams County, Terri
S. Harder, Judge, on appeal thereto from the County Court
for Adams County, Michael P. Burns, Judge. Judgment of
District Court affirmed.
Shon T. Lieske, of Lieske, Lieske & Ensz, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McALEESE
Cite as 311 Neb. 243
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Nearly 9 years after the county court sentenced him for driv-
ing under the influence, third offense, Andrew McAleese filed
a motion seeking to vacate and correct his sentence to add an
ignition interlock provision. The county court concluded it had
no legal authority to consider such a motion, and it denied the
motion on that basis. McAleese appealed, and the district court
affirmed. McAleese appeals again, and we granted the State’s
petition to bypass. We likewise affirm.
BACKGROUND
In 2008, McAleese was convicted in the county court for
Adams County of driving under the influence of alcohol, third
offense, a Class W misdemeanor. McAleese was sentenced to a
60-month term of probation, which included a 30-day jail term,
a $600 fine, and a 2-year license revocation.
In September 2010, McAleese’s probation was revoked, and
he was resentenced to a jail term of 120 days, a $600 fine,
and a 15-year license revocation. McAleese was ordered not
to drive a motor vehicle during the 15-year period of revoca-
tion, and the court impounded his operator’s license during
that period.
Although neither party brought it to the attention of the sen-
tencing court at the time, the parties agree that in addition to
the statutory penalty for driving under the influence, 1 the statu-
tory scheme governing the crime of driving under the influence
also requires a sentencing court to issue an order pursuant to
Neb. Rev. Stat. § 60-6,197.01 (Reissue 2021). 2 The version of
§ 60-6,197.01 in effect when McAleese was arrested required
1
See, generally, Neb. Rev. Stat. § 60-6,196(2) (Reissue 2021) (providing
anyone who is convicted of driving under the influence shall be “punished
as provided in sections 60-6,197.02 to 60-6,197.08”).
2
See, generally, Neb. Rev. Stat. § 60-6,197.03(4) (Reissue 2021).
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McALEESE
Cite as 311 Neb. 243
the court to impose one of two restrictions on all motor vehi-
cles owned by the convicted person; it could either (1) order
the motor vehicles immobilized for a period not less than 5
days nor more than 8 months or (2) order “installation of an
ignition interlock device . . . if [the defendant] was sentenced
to an operator’s license revocation of at least one year and has
completed at least one year of such revocation.” 3
It is undisputed that neither the 2010 sentencing order, nor
any other order in our record, imposed either of the statutory
restrictions on motor vehicles owned by McAleese. No appeal
was taken, and the conviction and sentence became final 30
days later. 4
Nine years later, McAleese filed what he titled as a “Motion
to Re-Open the Case [and] Vacate the Previous Sentencing
Order and to Resentence the Defendant to Authorize an
Ignition Interlock Device During Revocation.” The motion
asserted that the 2010 sentencing order failed to include an
order pursuant to § 60-6,197.01, and it requested that the crim-
inal case be reopened so the sentencing order could be vacated
and “corrected to order [McAleese] to obtain [and] install an
ignition interlock device in his vehicle . . . for the remainder
of his revocation period.”
The county court denied the postjudgment motion. It
acknowledged that the 2010 sentencing order was “flawed”
in that it failed to include an order pursuant to § 60-6,197.01.
But the court observed that the 2010 sentence had not been
3
See §§ 60-6,197.01(1)(a) and (b) and 60-6,197.03(4) (Cum. Supp. 2006).
See, also, Neb. Rev. Stat. § 60-6,197.02(4) (Cum. Supp. 2010) (“[a] person
arrested for a violation of section 60-6,196 or 60-6,197 before May 14,
2009, but sentenced . . . after May 14, 2009, shall be sentenced according
to the provisions of section 60-6,197.03 in effect on the date of arrest”).
4
See, State v. Beyer, 260 Neb. 670, 619 N.W.2d 213 (2000) (holding
when no appeal taken from criminal judgment, it becomes final for all
purposes); Caradori v. Hamilton, 193 Neb. 500, 227 N.W.2d 850 (1975)
(same). See, also, State v. Jonsson, 192 Neb. 730, 224 N.W.2d 181 (1974)
(holding judgment and sentence become final 30 days after entered if no
appeal filed).
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McALEESE
Cite as 311 Neb. 243
appealed, and “now, more than nine years later, any recognized
flaws are well past that point in time that may have allowed
the authority of this court to rectify the same.” Concluding
that it had no “legal authority” to reopen the case or grant the
requested relief by correcting the sentence, the court denied
the motion.
McAleese appealed. The district court, sitting as an appel-
late court, agreed the 2010 sentencing order was erroneous in
that it failed to include an order pursuant to § 60-6,197.01. But
the district court also agreed with the county court’s recogni-
tion that it lacked jurisdiction to vacate and correct McAleese’s
sentence, which had long ago become a final judgment. The
district court therefore affirmed the county court’s order deny-
ing the motion based on a lack of jurisdiction.
McAleese filed a timely appeal, and we granted the State’s
petition to bypass.
ASSIGNMENT OF ERROR
McAleese assigns that the district court erred in affirming
the county court’s denial of his motion to vacate and correct
his sentence.
STANDARD OF REVIEW
[1,2] Determination of a jurisdictional issue which does not
involve a factual dispute is a matter of law which requires an
appellate court to reach its conclusions independent from a trial
court. 5 Subject matter jurisdiction is a question of law for the
court, which requires an appellate court to reach a conclusion
independent of the lower court’s decision. 6
ANALYSIS
The court’s failure to issue an order pursuant to § 60-6,197.01
when imposing the 2010 sentence is something McAleese
5
State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018). See State v. Greer,
309 Neb. 667, 962 N.W.2d 217 (2021).
6
State v. Chojolan, 288 Neb. 760, 851 N.W.2d 661 (2014).
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McALEESE
Cite as 311 Neb. 243
could have brought to the attention of the county court at the
time of sentencing or could have assigned as error on direct
appeal. 7 He did neither. Instead, 9 years after his criminal
judgment became final, McAleese filed a motion asking the
sentencing court to reopen his criminal case, vacate his sen-
tence, and impose a “corrected” sentence. McAleese directs us
to no statutory authority for such a motion, and we are aware
of none.
[3-5] We have long recognized the general rule that where
a criminal procedure is not authorized by statute, it is unavail-
able to a defendant in a criminal proceeding. 8 And we have
said that when an unauthorized motion is filed in a criminal
case, the court lacks subject matter jurisdiction to adjudicate
it. 9 Similarly, we have said that when a collateral attack on
7
See, e.g., State v. Sikes, 286 Neb. 38, 834 N.W.2d 609 (2013) (defendant
convicted of driving under influence, third offense, assigns error to sen
tencing order that required ignition interlock device and continuous alcohol
monitor during 15-year license revocation); State v. Hense, 276 Neb. 313,
753 N.W.2d 832 (2008) (State files error proceeding to challenge sen
tencing court’s failure to impose 15-year license revocation as required by
statute when sentencing one convicted of operating vehicle during period
of revocation).
8
See, State v. Melton, 308 Neb. 159, 953 N.W.2d 246 (2021) (holding post
judgment motion to modify nonprobationary sentence is not authorized
by criminal procedure statutes and thus is not available in criminal pro
ceeding); State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005) (holding
court lacked jurisdiction over postjudgment motion to vacate death sen
tence because motion not statutorily authorized and same relief could be
requested in legislatively authorized procedure such as postconviction
motion); State v. Louthan, 257 Neb. 174, 186, 595 N.W.2d 917, 925
(1999) (holding Legislature “has not enacted a procedure for asserting
second-tier challenges to prior plea-based [driving under the influence]
convictions, and thus, unless such a procedure is constitutionally mandated,
it ‘is unauthorized and, therefore, unavailable under Nebraska criminal
procedure’”); State v. Miller, 240 Neb. 297, 481 N.W.2d 580 (1992)
(holding motions for judgment notwithstanding the verdict allowed in civil
proceedings, but unauthorized in criminal proceedings).
9
See, Melton, supra note 8; Dunster, supra note 8; Miller, supra note 8.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McALEESE
Cite as 311 Neb. 243
a criminal judgment is not raised in a recognized proceeding,
the court lacks jurisdiction over the claim. 10
Here, the county court concluded that it lacked “legal author-
ity” to reopen the criminal case or vacate and correct the sen-
tence, and on that basis, it denied the motion. On appeal, the
district court agreed that the county court lacked jurisdiction to
vacate and correct McAleese’s sentence, which had long ago
become a final judgment, and therefore, it affirmed the county
court’s order denying the motion. We likewise conclude the
county court lacked subject matter jurisdiction to adjudicate
the motion filed by McAleese, as there is no recognized crimi-
nal procedure which authorizes a sentencing court to reopen a
criminal case after the judgment has become final in order to
vacate and correct an alleged sentencing error.
Whether McAleese’s motion is viewed as an unauthorized
motion to modify a sentence 11 or as an unauthorized collateral
attack on his criminal judgment, 12 the sentencing court had no
subject matter jurisdiction to adjudicate the motion, and the
district court did not err in affirming the county court’s order
based on a lack of jurisdiction.
For the sake of completeness, we note that McAleese con-
tends that his 2010 sentence was “void, at least in part, due to
its failure to comply with . . . § 60-6,197.01.” 13 We soundly
reject this characterization.
[6] It is well-established that a criminal judgment is void
when the court rendering it lacks jurisdiction or a legal basis
10
State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014). See Dunster,
supra note 8.
11
See, e.g., State v. Irish, 298 Neb. 61, 902 N.W.2d 669 (2017) (holding
district court correctly determined it lacked jurisdiction to consider defend
ant’s postjudgment motion seeking to reduce license revocation period in
sentencing order).
12
See State v. Barnes, 303 Neb. 167, 927 N.W.2d 64 (2019) (affirming
denial of 2018 motion requesting jail credit on 1994 sentence, because
district court had no statutory authority to consider collateral attack on
sentence which was erroneous but not void).
13
Brief for appellant at 15.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McALEESE
Cite as 311 Neb. 243
to impose judgment. 14 Here, there is no dispute that in 2010,
the sentencing court had jurisdiction over McAleese and had
subject matter jurisdiction over the crime for which he was
sentenced. The alleged sentencing error raised by McAleese
does not pertain in any respect to the court’s jurisdiction to
impose the sentence. Instead, it involves only the court’s
failure to issue an order pursuant to § 60-6,197.01 when it
imposed the sentence. This alleged error or irregularity is not
one which rendered the judgment and sentence void, 15 and
McAleese’s claim to the contrary is meritless.
14
See Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016). See, also,
Gray v. Kenney, 290 Neb. 888, 863 N.W.2d 127 (2015); Peterson v.
Houston, 284 Neb. 861, 824 N.W.2d 26 (2012); Rehbein v. Clarke, 257
Neb. 406, 598 N.W.2d 39 (1999); In re Carbino, 117 Neb. 107, 219 N.W.
846 (1928); Keller v. Davis, 69 Neb. 494, 95 N.W. 1028 (1903); In re
Ream, 54 Neb. 667, 75 N.W. 24 (1898).
15
See, Barnes, supra note 12, 303 Neb. at 170, 927 N.W.2d at 67 (explaining
“[a] sentence outside of the period authorized for a valid crime is errone
ous only; it is not a void sentence” and “failing to give credit for time
served, while erroneous, does not render the sentence void”); State v.
Ratumaimuri, 299 Neb. 887, 911 N.W.2d 270 (2018) (finding incorrect
determination that Sex Offender Registration Act applies is error that
does not void application of act); Meyer v. Frakes, 294 Neb. 668, 676,
884 N.W.2d 131, 138 (2016) (holding “failure by the court to impose
a sentence inside of the mandatory statutory limits for a valid crime is
erroneous only; it is not a void sentence subject to collateral attack”);
State v. Woodruff, 205 Neb. 638, 641, 288 N.W.2d 754, 757 (1980) (“[a]
sentence to imprisonment which exceeds the maximum statutory period is
merely erroneous and not void”); Hickman v. Fenton, 120 Neb. 66, 231
N.W. 510 (1930) (sentence for less than minimum prescribed by statute is
erroneous, but not void); McElhaney v. Fenton, 115 Neb. 299, 212 N.W.
612 (1927) (sentence in excess of statutory period was erroneous, but
not void); In re Fanton, 55 Neb. 703, 76 N.W. 447 (1898) (same). See,
also, State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006) (sentence
imposed pursuant to unconstitutional statute is erroneous, but not void);
State v. Conover, 270 Neb. 446, 703 N.W.2d 898 (2005) (same); State
v. Rouse, 206 Neb. 371, 381, 293 Neb. 83, 89 (1980) (explaining that
“[a]n indeterminate sentence imposed for a crime, where not authorized by
statute, is erroneous but not void”); State v. Alford, 6 Neb. App. 969, 578
N.W.2d 885 (1998) (same).
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. McALEESE
Cite as 311 Neb. 243
CONCLUSION
The district court correctly concluded that 9 years after the
judgment and conviction became final, the county court lacked
jurisdiction to adjudicate McAleese’s motion to vacate and
correct his sentence. We therefore affirm the judgment of the
district court.
Affirmed.