In re Interest of Justin v.

• Decision Date: 03 May 2011
• Docket Number: No. A–10–566.,A–10–566.
• Citation: 797 N.W.2d 755,18 Neb.App. 960
• Parties: In re Interest of JUSTIN V., a child under 18 years of age.State of Nebraska, appellee,v.Justin V., appellant.
• Court: Nebraska Court of Appeals

18 Neb.App. 960

797 N.W.2d 755

In re Interest of JUSTIN

v.

, a child under 18 years of age.State of Nebraska, appellee,

v.

Justin

v., appellant.

No. A–10–566.

Court of Appeals of Nebraska.

May 3, 2011.

Syllabus by the Court

1. Justiciable Issues. Justiciability issues that do not involve a factual dispute present a question of law.

2. Moot Question: Jurisdiction: Appeal and Error. Because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, an appellate court reviews mootness determinations under the same standard of review as other jurisdictional questions.

3. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decisions made by the lower courts.

4. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court's findings.

5. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.

6. Juvenile Courts: Minors: Right to Counsel: Waiver: Appeal and Error. The juvenile court's determination as to whether a juvenile's waiver of counsel was voluntary, knowing, and intelligent is reviewed de novo on the record for an abuse of discretion.

7. Pleas: Appeal and Error. The right to withdraw a plea previously entered is not absolute, and, in the absence of an abuse of discretion on the part of the trial court, refusal to allow a defendant's withdrawal of a plea will not be disturbed on appeal.

8. Standing: Moot Question. Standing is judged at the time the action is begun, and thereafter, the analysis is under the rubric of mootness.

9. Moot Question: Words and Phrases. A case becomes moot when the issues initially presented in the litigation cease to exist, when the litigants lack a legally cognizable interest in the outcome of litigation, or when the litigants seek to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive.

10. Courts: Jurisdiction. Although not a constitutional prerequisite for jurisdiction, an actual case or controversy is necessary for the exercise of judicial power.

11. Courts: Judgments. In the absence of an actual case or controversy requiring judicial resolution, it is not the function of the courts to render a judgment that is merely advisory.

12. Moot Question. As a general rule, a moot case is subject to summary dismissal.

13. Criminal Law: Convictions: Proof: Moot Question. A criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.

14. Juvenile Courts: Minors: Right to Counsel: Waiver. Whether a juvenile has knowingly, voluntarily, and intelligently waived the right to counsel is to be determined from the totality of the circumstances.

15. Juvenile Courts: Minors: Right to Counsel: Waiver. The circumstances considered in a totality of the circumstances analysis of a juvenile's waiver of counsel include the age, intelligence, and education of the juvenile; the juvenile's background and experience generally, and more specifically, in the court system; the presence of the juvenile's parents; the language used by the court in describing the juvenile's rights; the juvenile's conduct; the juvenile's emotional stability; and the intricacy of the offense.

16. Juvenile Courts: Minors: Right to Counsel: Waiver: Proof. Where a juvenile waives his or her right to counsel, the burden lies with the State, by a preponderance of the evidence, to show that the waiver was knowingly, intelligently, and voluntarily made.

17. Juvenile Courts: Minors: Confessions: Waiver. Courts should take special care in scrutinizing a purported confession or waiver by a child.

18. Juvenile Courts: Minors: Right to Counsel: Waiver. In explaining to a juvenile his or her right to counsel, courts should take care to employ language that the juvenile can understand and should take the time necessary to conduct a sufficient inquiry into the juvenile's understanding of the right to counsel and waiver thereof.

19. Pleas: Appeal and Error. Prior to sentencing, the withdrawal of a plea forming the basis of a conviction is addressed to the discretion of the trial court, and its ruling will not be disturbed on appeal absent an abuse of that discretion.

20. Pleas. After the entry of a plea of guilty or no contest, but before sentencing, a court, in its discretion, may allow a defendant to withdraw his or her plea for any fair and just reason, provided that the prosecution has not been or would not be substantially prejudiced by its reliance on the plea entered.

21. Pleas: Proof. The burden is on the defendant to establish by clear and convincing evidence the grounds for withdrawal of a plea.

Carlos A. Monzón, of Monzón Law, P.C., L.L.O., Lincoln, for appellant.Gary E. Lacey, Lancaster County Attorney, Alicia B. Henderson, and Meagan Deichert, Senior Certified Law Student, for appellee.IRWIN, MOORE, and CASSEL, Judges.MOORE, Judge.

INTRODUCTION

Justin V. appeals from an order of the separate juvenile court of Lancaster County denying his request to withdraw his initial admission to a charge of criminal mischief. Justin asserts that he did not make a knowing waiver of his right to counsel and that he had a fair and just reason for withdrawing his admission to the charge in this case. Because the juvenile court did not abuse its discretion in determining that Justin's waiver of counsel was knowing, voluntary, and intelligent or in denying Justin's motion to withdraw his admission, we affirm.

BACKGROUND

On July 10, 2009, the State filed a petition in the juvenile court, charging Justin with criminal mischief, a Class II misdemeanor, in violation of Neb.Rev.Stat. § 28–519(4) (Reissue 2008). Specifically, the State alleged that Justin was within the meaning of Neb.Rev.Stat. § 43–247(1) (Reissue 2008) in that on June 13, he had intentionally or maliciously damaged property belonging to a particular entity, causing a pecuniary loss of more than $200 but less than $500.

On August 13, 2009, Justin, then 17 years old, appeared before the juvenile court on the criminal mischief charge. His mother was present with him at the hearing. The court began by asking Justin if he had received a copy of the charge and understood what the charge was. Justin confirmed that a copy had been sent to him and that he knew what the charge was.

Next, the juvenile court explained Justin's various rights. The court explained Justin's right to be represented by an attorney during the course of the proceedings. The court informed Justin that he could hire and consult with a private attorney; that if his family could not afford an attorney, Justin could request an attorney and the court would appoint one at no cost; or that Justin could waive this right and proceed without an attorney. The court then explained Justin's right to a speedy adjudication hearing, the State's burden of proof, and Justin's right to cross-examine witnesses. At this point, the court asked Justin if he had any questions, and Justin replied that he did not.

The juvenile court also explained Justin's right to testify, to put on his own defense, and to remain silent. The court again informed Justin that the State, rather than Justin, had the burden of proof with respect to the charge. The court warned Justin that if he chose to say something during the hearing, it could be used by the State against him. The court clarified by stating that if Justin said something in court about the charge that he had not previously said, he was “stuck with it.” The court then explained that Justin had the right to a prompt or quick hearing. The court told Justin that if he were placed at a juvenile detention center, he would have the right to request a hearing at any time to determine if he could be released to return home. The court also explained Justin's right to appeal the court's decisions. The court then asked Justin if he understood his rights and whether he had any questions. Justin indicated that he understood his rights and did not have any questions.

Next, the juvenile court explained the potential consequences if Justin admitted to the charge or the State proved that it was true at trial. The court told Justin that he could be placed on probation or with the Department of Health and Human Services, Office of Juvenile Services, and that there would be specific terms and conditions he would have to follow as part of either option. With regard to placement, the court explained that it could allow Justin to remain with his family, but that if the court determined at some point that it was necessary and in Justin's best interests, the court had the option to consider various out-of-home placements and even to consider placement at the Youth Rehabilitation and Treatment Center in Kearney, Nebraska. The court told Justin that it would need to find out more information about him before determining the best option. The court further explained the possible terms and conditions that Justin might have to follow if the charge were found to be true, such as paying restitution or performing community service. The court also informed Justin that the longest amount of time the case could remain pending would be until Justin turned 19, but that the case could end sooner if the court determined that Justin did not need to be under the court's jurisdiction that long. The court told Justin that if the charge were found not to be true, it would be dismissed. The court asked Justin if he understood what could happen if the court found the charge...