State v. Paulsen

• Decision Date: 06 September 2019
• Docket Number: No. S-18-936.,S-18-936.
• Citation: 304 Neb. 21,932 N.W.2d 849
• Parties: STATE of Nebraska, appellee, v. Larry PAULSEN, appellant.
• Court: Nebraska Supreme Court

304 Neb. 21

932 N.W.2d 849

STATE of Nebraska, appellee,

v.Larry PAULSEN, appellant.

No. S-18-936.

Supreme Court of Nebraska.

Filed September 6, 2019

Christopher Ferdico and Erik W. Fern, of Berry Law Firm, for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. Duffy, Lincoln, for appellee.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Per Curiam.

Over 6 months after the district court for Dawson County sentenced him to probation and imposed various terms thereof, Larry Paulsen filed a motion to modify one of those terms relating to possession of firearms. The district court denied the motion, and Paulsen has appealed. We conclude that the district court did not err in denying Paulsen’s motion and therefore affirm.

BACKGROUND

Conviction and Sentence.

Paulsen’s conviction in this case arose out of the district court’s acceptance of his plea of guilty to driving under the influence, second offense. The district court set forth its sentence in a journal entry filed on January 16, 2018, in which it stated that it was sentencing Paulsen to jail for 30 days and probation for 24 months "under the terms and conditions set by the Court." The district court also revoked Paulsen’s driver’s license for 18 months and ordered him to pay a $1,000 fine. The district court later entered an order setting forth various conditions to which Paulsen would be subject during his 24 months of probation. One of the conditions states that Paulsen shall not "have nor associate with anyone who has possession of firearms, ammunition, or illegal weapons."

Paulsen did not appeal his conviction or sentence.

Motion to Modify Probation Order.

On August 28, 2018, Paulsen filed a motion to modify the terms of his probation under Neb. Rev. Stat. § 29-2263(3) (Reissue 2016). Paulsen asked the district court to remove the term of probation relating to firearms. In the motion, Paulsen asserted that he had "always been a collector of different firearms, including mostly hunting rifles or shotguns," that he had "always been in possession of those weapons in his residence," but that he "recently had that room locked up by Dawson County Probation and the keys to the room were delivered to [his] counsel." Paulsen alleged that he had no history of violence, that there was no evidence any of his driving under the influence convictions were caused by firearm ownership, and that there was thus no reasonable connection between his rehabilitation and the firearms restriction in the probation order. Paulsen also stated that he had not been sanctioned since beginning his probation term.

The State did not object to Paulsen’s motion, and consequently, the district court considered it without a hearing. In a written order, the district court denied Paulsen’s motion. It explained that the firearms restriction is part of the court’s usual and customary terms of probation and that it is included to protect the public and probation officers. The district court then noted that in ruling on requests to modify probation conditions, it considers whether there has been a material change in circumstances which arose after the entry of the probation order. The district court found that Paulsen had not identified a material change in circumstances or any other reason that would entitle him to the relief sought. There is no indication in the record that the administration of probation ceased during the pendency of this appeal.

Paulsen appeals the order denying modification.

ASSIGNMENT OF ERROR

Paulsen contends that the district court erred by overruling his motion for modification of his probation order.

STANDARD OF REVIEW

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. State v. McGuire , 301 Neb. 895, 921 N.W.2d 77 (2018).

The standard of review governing orders denying a motion to modify probation are discussed further in the analysis section below.

ANALYSIS

Paulsen contends that the district court erred by denying his request to eliminate the condition of his probation relating to firearms. Before we may reach that question, however, we must ensure we have appellate jurisdiction. See State v. Uhing , 301 Neb. 768, 919 N.W.2d 909 (2018). We have an independent obligation to ensure we have appellate jurisdiction, id. , and in this case, the State also contends appellate jurisdiction is lacking.

Jurisdiction.

For an appellate court to acquire jurisdiction of an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken. Simms v. Friel , 302 Neb. 1, 921 N.W.2d 369 (2019). For purposes of appellate jurisdiction, a judgment is the final determination of the rights of the parties in an action. State v. Thalmann , 302 Neb. 110, 921 N.W.2d 816 (2019). In a criminal case, the judgment from which the appellant may appeal is the sentence. Id. Here, the sentencing order was entered on January 16, 2018, and the order setting forth the terms of Paulsen’s probation was entered on February 22. Paulsen did not timely appeal from either of those orders and therefore did not timely appeal from a final judgment.

The jurisdictional question before us is thus whether the order denying Paulsen’s motion for modification of his probation terms was a final order. Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the three types of final orders which may be reviewed on appeal are (1) an order affecting a substantial right in an action that, in effect, determines the action and prevents a judgment; (2) an order affecting a substantial right made during a special proceeding; and (3) an order affecting a substantial right made on summary application in an action after a judgment is rendered. State v. Thalmann, supra. We find that the order from which Paulsen appeals falls into the third category for reasons we will explain.

Starting with the most straightforward aspect of the third category of final orders, the district court’s order was made "upon a summary application in an action after judgment." See § 25-1902. We have said that an order made "upon a summary application in an action after judgment" under § 25-1902 is " ‘an order ruling on a postjudgment motion in an action.’ " See State v. Coble , 299 Neb. 434, 438, 908 N.W.2d 646, 651 (2018). See, also, John. P. Lenich, What’s So Special About Special Proceedings? Making Sense of Nebraska’s Final Order Statute , 80 Neb. L. Rev. 239, 313 (2001) ("only reasonable interpretation of the words of the statute ... is that an order ‘upon a summary application in an action after judgment’ is an order ruling on a post-judgment motion in an action").

Paulsen’s motion seeking a modification of his probation terms plainly meets that definition.

While a more difficult question, we also find that an order denying a motion to modify or eliminate a probation condition affects a substantial right. We have identified many factors that define when an order affects a substantial right. Broadly, these factors relate to the importance of the right and the importance of the effect on the right by the order at issue. State v. Thalmann , 302 Neb. 110, 921 N.W.2d 816 (2019).

Regarding the importance of the right affected, we often state that a substantial right is an essential legal right, not merely a technical right. See, e.g., id. Also relevant to the importance of the right, we have stated that an order affects a substantial right if it affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which he or she is appealing. See id. Whether the effect of an order is substantial depends on whether it affects with finality the rights of the parties in the subject matter. Id. This aspect of affecting a substantial right also depends on whether the right could otherwise be effectively vindicated. Id. An order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review. Id.

In order to determine whether an order denying a motion to modify a probation condition affects a right that is sufficiently important to be classified as substantial, we must consider the source and nature of the right asserted. Paulsen contends that § 29-2263(3) confers a substantial right that was affected by the district court’s order denying his motion to modify. The text of § 29-2263(3) provides: "During the term of probation, the court on application of a probation officer or of the probationer ... may modify or eliminate any of the conditions imposed on the probationer or add further conditions authorized by [ Neb. Rev. Stat. § 29-2262 (Reissue 2016) ]."

Section 29-2263(3) gives trial courts the authority to modify or eliminate conditions of probation "[d]uring the term of probation." Because a defendant’s term of probation will not begin until after the sentence is pronounced, § 29-2263(3) creates an exception to the general rule that, once a valid criminal sentence has been put into execution, the trial court cannot modify, amend, or revise it in any way, either during or after the term or session of court at which the sentence was imposed. See, e.g., State v. Marrs , 272 Neb. 573, 723 N.W.2d 499 (2006). In other words, while other aspects of a criminal sentence are quite static, § 29-2263(3) allows a court to make adjustments to conditions of probation as changing circumstances warrant.

Section 29-2263(3) is not so explicit about the standards trial courts are to apply when considering whether to modify or eliminate probation terms. But § 29-2263(3) is part of a collection of statutes dealing with probation. As we often say, such a collection of statutes pertaining to a single subject matter "are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible." See State v....