State v. Burlison, S-96-755

• Citation: 255 Neb. 190,583 N.W.2d 31
• Decision Date: 14 August 1998
• Docket Number: No. S-96-755,S-96-755
• Parties: STATE of Nebraska, Appellee, v. Gary L. BURLISON, Appellant.
• Court: Supreme Court of Nebraska

Page 31

583 N.W.2d 31

255 Neb. 190

STATE of Nebraska, Appellee, v. Gary L. BURLISON, Appellant.

No. S-96-755.

Supreme Court of Nebraska.

Aug. 14, 1998.

Syllabus by the Court

1. Statutes: Judgments: Appeal and Error. Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the courts below.

2. Postconviction: Constitutional Law: Proof. A defendant moving for postconviction relief must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or U.S. Constitution.

3. Postconviction. Once a motion for postconviction relief has been judicially determined, any subsequent motion for such relief from the same conviction and sentence may be dismissed unless the motion affirmatively shows on its face that the basis relied

upon for relief was not available at the time the prior motion was filed

4. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal.

5. Postconviction: Waiver: Appeal and Error. To use a procedural default or waiver as a means of ignoring a plain error that results in an unconstitutional incarceration would place form over substance; would damage the integrity, reputation, and fairness of the judicial process; and would render the plain error doctrine and postconviction relief remedies meaningless.

6. Criminal Law: Statutes: Legislature. Under Nebraska law, all crimes are statutory and no act is criminal unless the Legislature has in express terms declared it to be so.

7. Criminal Law. There are no common-law crimes in Nebraska.

8. Criminal Law: Legislature: Statutes. Within constitutional boundaries, the Legislature is empowered to define a crime.

9. Criminal Law: Statutes. It is a fundamental principle of statutory construction that penal statutes are to be strictly construed.

10. Statutes. In the absence of anything indicating to the contrary, statutory language is to be given its plain and ordinary meaning, and when the words of a statute are plain, direct, and unambiguous, no interpretation is necessary or will be indulged to ascertain their meaning.

11. Statutes. It is not within the province of the courts to read a meaning into a statute that is not there, nor to read anything direct and plain out of a statute.

12. Courts. The doctrine of stare decisis is grounded in public policy and, as such, is entitled to great weight and must be adhered to, unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and mischievous or unless more harm than good will result from doing so.

13. Case Overruled: Homicide: Intent. Prior decisions interpreting Neb.Rev.Stat. § 28-304(1) (Reissue 1995) to include malice as a necessary element of the crime of murder in the second degree were clearly erroneous and are therefore overruled.

14. Aiding and Abetting. One who aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if he were the principal offender.

[255 Neb. 191] 15. Homicide: Intent: Legislature. The only elements of murder in the second degree are those which the Legislature included in Neb.Rev.Stat. § 28-304(1) (Reissue 1995), namely, the causation of death intentionally but without premeditation.

Gary L. Burlison, appellant pro se.

Don Stenberg, Attorney General, and Jay C. Hinsley, Lincoln, for appellee.

CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

PER CURIAM.

Gary L. Burlison appeals from an order of the district court for Dakota County denying his motion for postconviction relief. We granted Burlison's petition to bypass the Nebraska Court of Appeals and now affirm, although for reasons different from those stated by the district court.

FACTS

In an amended information filed on December 7, 1992, the State charged Burlison with aiding and abetting another to commit the offense of murder in the second degree as defined by Neb.Rev.Stat. § 28-304 (Reissue 1995). Burlison pleaded guilty to the charge under the terms of a plea agreement. After accepting his plea, the district court sentenced Burlison to a term of 25 years' imprisonment.

On October 19, 1994, Burlison filed a motion for postconviction relief alleging, inter alia, that the State violated his state and federal constitutional rights by failing to include the element of malice in the amended information. Noting that it had overruled a

previous motion for postconviction relief filed by Burlison, the district court denied his second motion because there was no showing that the grounds relied upon were unavailable at the time of the first motion. Burlison's appeal of this order was dismissed by the Court of Appeals on April 21, 1995, because of his failure to file a brief

On June 7, 1996, Burlison filed a third motion for postconviction relief, again alleging that the State violated his state and [255 Neb. 192] federal constitutional rights by failing to "allege the essential element of malice" in the amended information. On July 1, 1996, the district court denied the motion on grounds that it was based upon the same issues raised in the previous two motions which had been denied. Burlison perfected a timely appeal from this order, and we granted his petition to bypass the Court of Appeals.

ASSIGNMENTS OF ERROR

Burlison's four assignments of error all relate to his contention that his state and federal constitutional rights were denied because the amended information omitted malice as an element of the crime of aiding and abetting second degree murder.

STANDARD OF REVIEW

Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the courts below. State v. Irons, 254 Neb. 18, 574 N.W.2d 144 (1998); State v. Roucka, 253 Neb. 885, 573 N.W.2d 417 (1998).

ANALYSIS

POSTCONVICTION RELIEF

A defendant moving for postconviction relief must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or U.S. Constitution. See, State v. Bowen, 254 Neb. 863, 580 N.W.2d 535 (1998); State v. Boppre, 252 Neb. 935, 567 N.W.2d 149 (1997). Once a motion for post-conviction relief has been judicially determined, any subsequent motion for such relief from the same conviction and sentence may be dismissed unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the prior motion was filed. State v. Bowen, supra; State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994). A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal. State v. Bowen, supra; State v. Jones, 246 Neb. 673, 522 N.W.2d 414 (1994).

[255 Neb. 193] Burlison argues that his prior motions for postconviction relief should not result in a procedural default, because of our reasoning in State v. Hall, 249 Neb. 376, 379-80, 543 N.W.2d 462, 465 (1996), where we held that a person convicted of murder in the second degree based upon his plea of guilty was entitled to postconviction relief because the information did not allege the element of malice, and for that reason "did not sufficiently charge him with a crime." In State v. Hall, the trial court had denied the defendant's motion for postconviction relief, reasoning that he "could have brought to the court's attention the erroneous information either on direct appeal or in the initial postconviction proceeding." 249 Neb. at 379, 543 N.W.2d at 464. Finding plain error, we reversed the trial court's decision, reasoning that "[t]o use a procedural default or waiver as a means of ignoring a plain error that results in an unconstitutional incarceration would place form over substance; would damage the integrity, reputation, and fairness of the judicial process; and would render the plain error doctrine and postconviction relief remedies meaningless." Id. at 380, 543 N.W.2d at 465.

The present matter raises substantially similar issues and is procedurally similar to State v. Hall. Accordingly, despite Burlison's failure to diligently prosecute his appeal from the denial of his prior motion for postconviction relief, we will address the issues raised.

SECOND DEGREE MURDER

Section 28-304, which has been in its present form since 1979, provides in relevant part: "(1) A person commits murder in the second degree if he causes the death of a person intentionally, but without premeditation." Following the entry of Burlison's sentence, we decided State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), in which we held that it was plain error to omit the element of malice from a jury instruction defining second degree murder under § 28-304(1). In State v. Manzer, 246 Neb. 536, 519 N.W.2d 558 (1994), we applied State v. Myers in an appeal from a conviction based upon a plea of guilty, holding that the failure to include malice in the amended information to which the plea was entered constituted plain error. Thereafter, in State v. Ryan, 249 Neb. 218, 223, 543 N.W.2d 128, 135 (1996), we applied the holding from State v. Myers to all cases involving a charge of murder in the second degree by holding that "under § 28-304(1), malice is a necessary element of second degree murder." We have continued to adhere to the rule established in State v. Myers, as articulated in State v. Ryan, in subsequent cases addressing second degree murder in Nebraska. See, e.g., State v. Randall, 249 Neb. 718, 545 N.W.2d 94 (1996); State v. White, 249 Neb. 381, 543 N.W.2d 725 (1996); State v. Hall, 249 Neb. 376, 543 N.W.2d 462 (1996); State v. Barfoot, 248 Neb. 335, 534 N.W.2d 572 (1995); State v.. Lowe, 248 Neb. 215, 533...