State v. Hartzell
| Decision Date | 20 September 2019 |
| Docket Number | No. S-18-1105.,S-18-1105. |
| Citation | 304 Neb. 82,933 N.W.2d 441 |
| Parties | STATE of Nebraska, appellee, v. Shalynn R. HARTZELL, appellant. |
| Court | Nebraska Supreme Court |
John Heieck and Kelsey Helget, Assistant Adams County Public Defenders, for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.
Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
In Shalynn R. Hartzell’s appeal from her conviction and probationary sentence for possession of a controlled substance, the legality of the evidence turns upon whether the traffic stop concluded and a voluntary police-citizen encounter began before she consented to a search of her vehicle. Because the totality of circumstances here establishes that this was not, as Hartzell contends, an unlawful extended seizure, her appeal fails. Before reaching that conclusion, we note jurisdiction but disapprove of the practice of entering separate sentencing and probation orders, and we direct that a sentencing court should instead enter its entire judgment, including all of the terms and conditions of probation, at one time.
Because the crux of Hartzell’s argument is based upon police-citizen encounters, we recount those events first. At oral argument, Hartzell conceded that she does not dispute the historical facts determined by the district court. Therefore, we recount the facts accordingly.
In March 2017, Sgt. Raelee VanWinkle of the Hastings, Nebraska, police department conducted a traffic stop of Hartzell’s vehicle for expired registration tags. Hartzell was alone in the vehicle. VanWinkle issued a "fix-it" ticket, returned Hartzell’s license and registration, and told Hartzell to " ‘have a good night and to drive careful[ly].’ " VanWinkle began to walk back to her patrol vehicle.
After reaching the rear of Hartzell’s vehicle, VanWinkle turned around and again approached Hartzell. VanWinkle asked, " ‘[H]ey, before you go, do you have a minute to talk to me?’ " Hartzell responded, " ‘[S]ure, what’s up?’ " VanWinkle asked to search the vehicle and Hartzell "verbally indicated that she didn't have a problem with that."
After a search of Hartzell’s vehicle, VanWinkle found a marijuana joint, marijuana stems and leaves, a digital gram scale with a white crystalline substance on it, and a methamphetamine pipe. When confronted about these items, Hartzell stated that she was a marijuana user and used the scale to weigh her marijuana. A field test of the pipe residue resulted in a presumptive positive for methamphetamine. VanWinkle arrested Hartzell and searched her person. VanWinkle found "a baggie of methamphetamine in [Hartzell’s] bra." Later, the Nebraska State Patrol Crime Laboratory tested the "baggie" and confirmed it contained methamphetamine with a weight of .94 grams.
While being taken to jail, Hartzell stated that she had tried to "stay clean" and that she had relapsed the prior night. VanWinkle denied conducting an interview in the patrol vehicle.
Once at the jail and after Hartzell waived her Miranda rights, VanWinkle interviewed her. Hartzell admitted that she had relapsed and that she came to Hastings to purchase methamphetamine.
Prior to a stipulated bench trial, Hartzell moved to suppress all evidence found during the search of her vehicle or on her person and all statements made to law enforcement. The district court denied the motion and determined that neither the Fourth Amendment nor the Fifth Amendment had been violated. Because Hartzell’s argument on appeal relies solely on the Fourth Amendment, in that she claims the seizure of the traffic stop was continuous until her ultimate arrest, we summarize only those findings pertinent to the Fourth Amendment analysis.
Regarding Hartzell’s Fourth Amendment claim, the court determined that "a reasonable person would not conclude [she was] not free to leave," because VanWinkle told her to " ‘drive safe[ly]’ " and did not indicate that her compliance with the request to search was required. It noted that although VanWinkle’s patrol vehicle’s lights were still activated, Hartzell knew that VanWinkle had not returned to the patrol vehicle. It determined that VanWinkle did not display a weapon, touch Hartzell, or use an authoritative tone. It concluded that Hartzell was not seized and that VanWinkle did not need reasonable, articulable suspicion to reapproach Hartzell and request consent to search. Hartzell later moved to reconsider and vacate the order on the motion to suppress. She contended that the court entered the order on the day that the court had scheduled the parties to submit their reply briefs. The court then reviewed the reply briefs and declined to vacate the motion to suppress order.
At trial, Hartzell renewed her motion to suppress. The district court adhered to its prior ruling. The district court found Hartzell guilty of possession of a controlled substance, methamphetamine, pursuant to Neb. Rev. Stat. § 28-416(3) (Reissue 2016).
At a sentencing hearing, the district court sentenced Hartzell to 2 years of probation and pronounced several conditions for probation. A few days after the hearing, on October 29, 2018, the court entered a sentencing order, styled as a journal entry (October sentencing order), which also stated that Hartzell "should be ordered to comply with the terms and conditions set out in the separate Order of Probation."
Within 30 days of the entry of the October sentencing order, Hartzell filed her notice of appeal. We moved the appeal to our docket.1
After reviewing the transcript, this court noted that no "separate Order of Probation" appeared in our record. After we notified the parties of this situation, Hartzell supplemented the record with an order of probation entered on July 17, 2019 (July order of probation). This order was entered after our notification to the parties.
We then ordered the parties to submit simultaneous supplemental briefing on jurisdiction. The parties did so prior to oral argument.
Hartzell assigns, consolidated and restated, that the district court erred in denying her motion to suppress, motion to reconsider and vacate, and renewed motion to suppress.
A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court’s decision.2
In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment protection is a question of law that an appellate court reviews independently of the trial court’s determination.3 When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress.4
Before reaching Hartzell’s assignments of error, we must determine whether this court has jurisdiction. It is the duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties.5 Obviously, the question arose because the October sentencing order contemplated a "separate Order of Probation" that was not entered until nearly 8 months after the notice of appeal. However, this appeal does not challenge the content of either the October sentencing order or the July order of probation. Thus, no claim is made that either order conflicted with the pronouncement of sentence. Here, we need only determine whether we have jurisdiction of this appeal, and our statutes provide a clear jurisdictional basis.
Under Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018), which includes appeals from "judgments and sentences upon convictions for felonies and misdemeanors"6 and which must be read together with other statutes governing appeals in criminal cases,7 a notice of appeal filed after the announcement of a decision or final order but before the entry of the judgment, decree, or final order shall be treated as filed after the entry of the judgment, decree, or final order and on the date of entry.8 "In other words, to trigger the savings clause for premature notices of appeal under § 25-1912(2), an announcement must pertain to a decision or order that, once entered, would be final and appealable."9
Here, the oral announcement of a sentence and the content of the October sentencing order, which stated a "separate Order of Probation" would be forthcoming, triggered the savings clause under § 25-1912(2). Although the notice of appeal was filed almost 8 months before the remainder of the judgment was entered, it was filed after the announcement of the October sentencing order, which in turn announced the July order of probation. Taken together, the October sentencing order, which was initially interlocutory, and the July order of probation composed a complete sentencing judgment, from which Hartzell could appeal. Because her notice of appeal was filed after the announcement but before the entry of the judgment, her premature notice of appeal sprang into effect after the entry of the July order of probation.
But we emphasize that this jurisdictional tangle could and should have been avoided. The practice of entering separate sentencing and probation orders is disapproved. Instead, a sentencing court should enter its entire judgment, including all of the terms and conditions of probation, at one time. And we remind trial courts that when imposing a sentence, the court should state with care the precise terms of the sentence which is imposed. This same rule applies to the...
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