State v. Portsche
| Decision Date | 03 March 2000 |
| Docket Number | No. S-99-533.,S-99-533. |
| Citation | 606 N.W.2d 794,258 Neb. 926 |
| Parties | STATE of Nebraska, appellant, v. Tod PORTSCHE, appellee. |
| Court | Nebraska Supreme Court |
Gary E. Lacey, Lancaster County Attorney, and Amy G. Jacobsen, Lincoln, for appellant.
Dennis R. Keefe, Lancaster County Public Defender, and Joseph D. Nigro, Lincoln, for appellee.
Tod Portsche, appellee, was charged in the district court for Lancaster County with being a felon in possession of a firearm in violation of Neb.Rev.Stat. § 28-1206 (Reissue 1998). The case was tried to the court which entered an order finding that because Portsche's prior felony conviction was uncounseled, he was not a convicted felon for purposes of § 28-1206, and that, therefore, his prior conviction could not be used to establish the material element of being a convicted felon pursuant to § 28-1206. The trial court found Portsche not guilty.
The State sought leave to docket error proceedings under Neb.Rev.Stat. § 29-2315.01 (Reissue 1995) on April 26, 1999. The Nebraska Court of Appeals granted leave. The case was thereafter moved to the docket of the Nebraska Supreme Court. The State assigns as error the district court's rulings that Portsche was not a convicted felon for purposes of § 28-1206 and that Portsche's prior conviction could not be used as a predicate for the instant charge of being a felon in possession of a firearm.
We conclude that the district court correctly determined that Portsche's prior uncounseled conviction could not be used to establish that he was a convicted felon for purposes of § 28-1206 and that Portsche was not guilty of the felon in possession charge that was brought under § 28-1206. Accordingly, the State's exception is overruled.
Portsche was charged on August 21, 1998, in the district court for Lancaster County with being a felon in possession of a firearm. Specifically, the State charged that on June 7, Portsche was in possession of a semiautomatic rifle. In 1991, Portsche had been convicted in the district court for Seward County of operating a motor vehicle during a time of suspension, a Class IV felony under Neb.Rev.Stat. § 60-6,196(6) (Cum.Supp.1999), then found at Neb.Rev.Stat. § 39-669.07 (Cum.Supp. 1990).
On November 24, 1998, Portsche entered a plea of guilty, and the plea was accepted by the district court. Portsche was found guilty, and sentencing was set for January 26, 1999.
On November 30, 1998, the district court sent letters to counsel for both Portsche and the State indicating concern as to whether a prior uncounseled felony conviction could be used as the predicate for Portsche's instant charge of being a felon in possession of a firearm and ordered counsel to submit letter memoranda addressing the issue by January 8, 1999. After reviewing the information submitted by counsel, the district court on January 20, 1999, sent letters to counsel advising them of its conclusion that "since there was no finding Mr. Portsche freely, voluntarily, knowingly and intelligently waived his right to counsel during the Seward County proceeding, [the district court was] of the opinion the Seward County conviction cannot be used to support a conviction" in the instant case.
On January 26, 1999, the district court vacated and set aside its November 24, 1998, finding of guilt based on a guilty plea. When the case came on for trial on February 22, 1999, the State moved the district court to reconsider its ruling of January 26. The district court reconsidered and, on March 12, issued its order again concluding that the State could not use Portsche's uncounseled 1991 conviction as a predicate for the charge of being a felon in possession of a firearm.
Portsche waived a jury trial and agreed to proceed with a stipulated trial, which was conducted on March 29, 1999. At the trial, the parties stipulated that Portsche was in possession of a firearm on June 7, 1998. The State offered Portsche's 1991 felony conviction. The district court found that the prior conviction was not valid for purposes of § 28-1206 because the record did not reflect that Portsche had an attorney or waived his right to an attorney at the time of his plea on August 30, 1991. The district court therefore found Portsche not guilty of the instant charge of being a felon in possession of a firearm.
On April 16, 1999, the State presented to the district court an application for leave to docket an appeal, which application the district court approved the same day. The State filed the application with the Court of Appeals on April 26. The Court of Appeals granted the application on May 14, and the appeal was subsequently moved to this court's docket.
The State asserts that the district court erred in ruling (1) that Portsche was not a convicted felon for the purpose of committing the crime of being a felon in possession of a firearm pursuant to § 28-1206 and (2) that Portsche's prior uncounseled conviction could not be used as a predicate for the crime of being a felon in possession of a firearm.
The instant appeal is before this court as an error proceeding filed by the Lancaster County Attorney pursuant to § 29-2315.01, which states in part that "[t]he county attorney may take exception to any ruling or decision of the court made during the prosecution of a cause by presenting to the trial court the application for leave to docket an appeal with reference to the rulings or decisions of which complaint is made." The scope and purpose of appellate review in error proceedings are defined in Neb.Rev.Stat. § 29-2316 (Reissue 1995). The purpose of the review is to provide an authoritative exposition of the law to serve as precedent in future cases. State v. Dorcey, 256 Neb. 795, 592 N.W.2d 495 (1999). However, in the instant case, because jeopardy has attached, this court's decision will not affect the judgment of the trial court herein. See, State v. Jennings, 195 Neb. 434, 238 N.W.2d 477 (1976); State v. Wilen, 4 Neb. App. 132, 539 N.W.2d 650 (1995).
The State's assignments of error present questions of law. To the extent questions of law are involved, an appellate court is obligated to reach conclusions independent of the decisions reached by the courts below. State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805 (1999).
Section 28-1206(1) provides as follows: "Any person who possesses any firearm or brass or iron knuckles and who has previously been convicted of a felony or who is a fugitive from justice commits the offense of possession of a deadly weapon by a felon or a fugitive from justice."
In the instant case, it is uncontested that Portsche possessed a firearm on June 7, 1998. It is also uncontested that in 1991, Portsche was convicted of a Class IV felony in the district court for Seward County. The district court in the instant case found that the record of Portsche's 1991 conviction did not reflect that Portsche either had an attorney or waived his right to an attorney at the time of his plea. The State does not challenge this finding. Therefore, the sole issue in this proceeding is whether Portsche's uncounseled 1991 conviction can be used to establish that Portsche is a felon for purposes of Nebraska's felon in possession statute, § 28-1206.
Although not cited by either party, in State v. Groves, 239 Neb. 660, 477 N.W.2d 789 (1991), this court has previously held, albeit without exposition, that to prove a prior conviction for felon in possession purposes, the State need only establish that at the time of the prior conviction, the defendant had or waived counsel. In Groves, the defendant was convicted of being a felon in possession of a firearm and, on appeal, argued that his prior felony conviction should have been excluded because the record in that case failed to affirmatively reflect that he was represented by counsel, that he waived counsel, or that he was advised of certain other constitutional rights. We stated in Groves as follows:
This court has held that to prove a prior conviction for enhancement purposes and for habitual criminal proceedings, the State need only establish that at the time of the prior conviction, the defendant had or waived counsel.... This rule is equally applicable to use of a prior conviction as proof that the defendant is a convicted felon.
(Citation omitted.) Id. at 676, 477 N.W.2d at 801. We then found in Groves that the record of the prior conviction showed that the defendant had his attorney present with him at each court appearance up to and including sentencing and that therefore the prior counseled felony conviction was properly admitted for establishing that Groves was a felon in possession. Id.
In Groves, we held that in a felon in possession case, in order to use a prior felony conviction as proof that the defendant is a convicted felon, the State must establish that at the time of the prior conviction, the defendant had or waived counsel. We find that rule to be applicable in the instant case. We therefore conclude that the district court properly ruled that Portsche's uncounseled 1991 conviction could not be used to establish that Portsche had "previously been convicted of a felony" under § 28-1206, and we dismiss the State's exception brought to this court under § 29-2315.01. However, because the purpose of our review in an error proceeding is to provide an authoritative exposition of the law to serve as precedent in future cases, State v. Dorcey, 256 Neb. 795, 592 N.W.2d 495 (1999), and because Groves contained little discussion beyond the conclusion quoted above, we take this opportunity to further explain the rationale behind our holding.
The State relies mainly on two cases, a Nebraska case and a U.S. Supreme Court case, in support of its argument that a prior uncounseled conviction...
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...involved a federal statute, and "is not binding upon" our interpretation of Arizona's prohibited possessor laws. State v. Portsche, 258 Neb. 926, 606 N.W.2d 794, 801 (2000); see also State v. Gore, 101 Wash.2d 481, 681 P.2d 227, 231 (1984) (Lewis "is not controlling in our interpretation of......
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