State v. Rice
| Decision Date | 09 December 2016 |
| Docket Number | No. S-15-932.,S-15-932. |
| Citation | 888 N.W.2d 159,295 Neb. 241 |
| Parties | STATE of Nebraska, appellee, v. David L. RICE, appellant. |
| Court | Nebraska Supreme Court |
295 Neb. 241
888 N.W.2d 159
STATE of Nebraska, appellee,
v.
David L. RICE, appellant.
No. S-15-932.
Supreme Court of Nebraska.
Filed December 9, 2016.
Timothy L. Ashford, Omaha, for appellant.
Donald W. Kleine, Douglas County Attorney, and Katie L. Benson for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
This case, No. S-15-932, is an appeal from the order of the district court for Douglas County which denied attorney Timothy L. Ashford's application for expenses and fees for service as court-appointed appellate counsel for David L. Rice in Rice's postconviction proceeding. Rice died while this appeal was pending, and Ashford filed a suggestion of death. Ashford later filed a motion for substitution of parties in which he requested that, if necessary, he or a member of Rice's family be substituted for Rice as a party to this appeal. We determine that because Ashford is the proper appellant in this appeal, no substitution of parties is needed. With regard to
the merits of the appeal, we reverse, and remand to the district court for further proceedings.
STATEMENT OF FACTS
In 1971, Rice was convicted of first degree murder and was sentenced to life imprisonment. His conviction and sentence were affirmed on direct appeal. State v. Rice , 188 Neb. 728, 199 N.W.2d 480 (1972). Rice subsequently filed unsuccessful actions for habeas corpus relief in federal court and a state court petition for postconviction relief, the denial of which was affirmed by this court in State v. Rice , 214 Neb. 518, 335 N.W.2d 269 (1983).
On September 28, 2012, Rice filed a successive petition for postconviction relief. The district court dismissed Rice's petition on the bases that (1) the petition was barred by the statute of limitations set forth in Neb. Rev. Stat. § 29–3001(4) (Reissue 2016), (2) Rice's claims were procedurally barred because they were or could have been raised in his direct appeal or his previous postconviction proceeding, and (3) Rice's petition did not set forth claims that would entitle him to relief. Rice appealed the denial of his petition for postconviction relief and made several assignments of error on appeal to this court in case No. S-14-056.
The record in case No. S-14-056 shows that Rice's petition for postconviction relief was filed on his behalf in the district court by attorney Ashford. Ashford also filed on behalf of Rice a motion to appoint counsel on the basis that Rice was indigent. Ashford continued to represent Rice in the postconviction proceeding. However, the record in case No. S-14-056 did not contain a ruling on the motion to appoint counsel prior to the district court's order denying postconviction relief. Consequently, after
Rice filed his notice of appeal of the order denying postconviction relief and given the unresolved motion pending in district court, we directed the district court "to rule upon [the] motion for appointment of counsel previously filed in the trial court."
In an order filed January 24, 2014, the district court acknowledged that Rice had filed a motion to appoint counsel, but the court stated that it was never presented with the motion and that Rice never asked it to rule on the motion. The district court asserted that because Rice had filed a notice of appeal on January 16, it believed it was without jurisdiction to rule on the motion. The district court stated, however, that this court required it to take action. Therefore, the court entered an order in which it found that Rice should be allowed to proceed in forma pauperis and appointed Ashford as counsel for Rice.
The appeal in case No. S-14-056 proceeded, and in due course, we sustained the State's motion for summary affirmance in an order in which we cited § 29–3001(4)(e) and stated that Rice's "petition for postconviction relief is time barred." We overruled Rice's subsequent motion for a rehearing, and the mandate in case No. S-14-056 was spread on February 6, 2015.
On August 14, 2015, Ashford filed an application in the district court for the allowance of expenses and fees associated with the appeal in case No. S-14-056. The application was accompanied by Ashford's affidavit and an invoice which showed fees of $7,133.75, expenses of $249.85, and mileage of $44.80, for a total request of $7,428.40. After a hearing in which the State did not contest the requested expenses and fees, the district court denied the application for attorney fees. In its order denying the application, the court stated, "Subsequent to the hearing, this Judge received notice that he had been sued in the United States District Court by the applicant herein." The court then noted that it had denied postconviction relief and an evidentiary hearing on the basis that Rice's claims were both procedurally and time barred. The court stated, "Although not material to this Order, the Court is satisfied that the underlying claims for post conviction relief were frivolous." The court then stated that "the appeal itself
was frivolous," and it therefore concluded that "no fees should be allowed."
Ashford appealed the district court's order denying his application for attorney fees, resulting in the current appeal, case No. S-15-932.
While the current appeal was pending, Ashford filed a suggestion of death indicating that Rice had died on March 11, 2016. Ashford later filed a motion for substitution of parties in which he requested that, if necessary, he or a member of Rice's family be substituted for Rice as a party to this appeal. We ordered the case to proceed to briefing and oral argument in order to allow us to consider the effect of Rice's death on this appeal, the need for a substitution of parties, and the merits of the appeal.
ASSIGNMENT OF ERROR
Ashford claims that the district court erred when it denied his application for expenses and fees.
STANDARDS OF REVIEW
Whether a party's death abates an appeal or cause of action presents a question of law. In re Conservatorship of Franke , 292 Neb. 912, 875 N.W.2d 408 (2016).
When attorney fees are authorized, the trial court exercises its discretion in setting the amount of the fee, which ruling an appellate court will not disturb on appeal
unless the court abused its discretion. State v. Ortega , 290 Neb. 172, 859 N.W.2d 305 (2015).
ANALYSIS
§ 29–3004 Governs Fees for Court-Appointed Counsel in This Postconviction Proceeding.
As an initial matter, we note that in this appeal, Ashford contends that he should be allowed attorney fees under Neb. Rev. Stat. § 29–3905 (Reissue 2016) and relies on case law applying § 29–3905 to support his argument. Ashford's reliance on § 29–3905 is misplaced. Section 29–3905 applies to
appointed counsel for a "felony defendant" and should be read in connection with Neb. Rev. Stat. § 29–3903 (Reissue 2016) regarding appointment of counsel in "criminal proceedings." The underlying action in the present case is Rice's action for postconviction relief, and Neb. Rev. Stat. § 29–3004 (Reissue 2016) governs the appointment of counsel and the payment of fees to appointed counsel in postconviction proceedings. Therefore, § 29–3004 rather than § 29–3905 controls the allowance of expenses and fees in this case.
Nevertheless, we note that both § 29–3905 and § 29–3004 require that, upon hearing an application by court-appointed counsel, the court "shall fix reasonable expenses and fees, and the county board shall allow payment to [court-appointed counsel] in the full amount determined by the court." Because of the similarity in language, case law interpreting § 29–3905 will be relevant to our application of § 29–3004 in this appeal.
This Appeal Concerns Ashford's Application for Expenses and Fees Pursuant to § 29–3004, and Therefore, the Appeal Does Not Abate as a Result of Rice's Death and No Substitution of Parties Is Necessary.
Before considering the merits of this appeal, we must first address the suggestion of death and the motion for substitution of parties filed by Ashford. Specifically, we must determine whether this appeal abates as a result of Rice's death and whether a substitution of parties is necessary. We conclude that in this appeal limited to the challenge to the district court's ruling on Ashford's application for expenses and fees, Ashford is the proper appellant, the appeal does not abate as a result of Rice's death, and no substitution of parties is necessary. We therefore overrule...
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