State v. Rolling, 83-843

• Decision Date: 20 July 1984
• Docket Number: No. 83-843,83-843
• Citation: 352 N.W.2d 175,218 Neb. 51
• Parties: STATE of Nebraska, Appellee, v. Walter W. ROLLING, Appellant.
• Court: Nebraska Supreme Court

Page 175

352 N.W.2d 175

218 Neb. 51

STATE of Nebraska, Appellee, v. Walter W. ROLLING, Appellant.

No. 83-843.

Supreme Court of Nebraska.

July 20, 1984.

Syllabus by the Court

1. Habitual Criminals: Sentences. The Nebraska habitual criminal statute, Neb.Rev.Stat. § 29-2221 (Reissue 1979), is not a separate offense but, rather, provides an enhancement of the penalty for the crime committed, with a minimum sentence of 10 years and a maximum sentence of 60 years for each conviction committed by one found to be a habitual criminal, even though, absent a conviction as a habitual criminal, the minimum or maximum sentence might be less.

2. Post Conviction: Sentences. Matters relating to sentences imposed within statutory limits are not a basis for post conviction relief.

3. Post Conviction. Once post conviction relief has been denied, subsequent petitions will not be entertained unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time of filing the prior motion for post conviction relief.

4. Sentences. Whenever a judge imposes a more severe sentence upon a defendant after a new trial or upon resentencing, the reasons for doing so must affirmatively appear in the record. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant.

Walter W. Rolling, pro se.

Paul L. Douglas, Atty. Gen., and Lynne R. Fritz, Lincoln, for appellee.

KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, SHANAHAN, and GRANT, JJ., and BRODKEY, J., Retired.

KRIVOSHA, Chief Justice.

The appellant, Walter W. Rolling, apparently committed to the adage, "If at first you don't succeed, try, try again," has once more sought relief in this court. In view of the action we are required to take, perhaps Rolling should better have adopted the adage, "Let sleeping dogs lie."

On April 29, 1980, Rolling was charged in a five-count information. Count I charged him with a violation of a Class I misdemeanor. Count II charged him with a violation of a Class IV felony, while counts III and IV charged him with a violation of a Class III felony, including using a knife to commit a felony, in violation of Neb.Rev.Stat. § 28-1205 (Reissue 1979). Upon conviction under this section the sentence imposed must, by statutory mandate, run consecutive to any other sentences imposed. Count V alleged facts which, if true, made Rolling a habitual criminal and subject to the provisions of Neb.Rev.Stat. § 29-2221 (Reissue 1979).

Following trial, Rolling was found guilty by a jury on all four substantive counts, and after a proper hearing he was sentenced by the trial court as follows: count I, misdemeanor theft, 161 days in jail; count II, felony theft, 1 year in the Nebraska state penitentiary; count III, attempted robbery, felony, 5 years in the Nebraska state penitentiary; count IV, use of a firearm to commit a felony, not less than 4 nor more than 7 years in the Nebraska state penitentiary; and count V, being a habitual criminal, not less than 4 nor more than 7 years in the Nebraska state penitentiary. The trial court ordered that the sentences imposed on counts I, II, and III shall be served concurrently, and the sentences for counts IV and V shall also be served concurrently but consecutive to the sentences in counts I, II, and III. Rolling then appealed to this court, maintaining that the evidence was insufficient for the jury to find him guilty beyond all reasonable doubt and that the sentences imposed were harsh and an abuse of discretion. We overruled both of the assignments and affirmed the conviction. See State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981) (Rolling I ). We did, however, note plain error in Rolling I in that the sentences imposed by the trial court were in violation of the statutes. Specifically, we said:

Rolling was found by the court to be an habitual criminal. Nevertheless, he was sentenced by the trial court on the first four counts to terms of imprisonment of less than 10 years. In addition, he was specifically sentenced to a term of imprisonment as an habitual criminal. The sentencing is in all respects improper and must be corrected. Under the provisions of § 29-2221, one is not sentenced as an habitual criminal. This is due to the fact that the habitual criminal statute is not a separate offense but, rather, provides an enhancement of the penalty with a minimum sentence of 10 years and a maximum sentence of 60 years for each conviction committed by one found to be an habitual criminal even though, absent a conviction as an habitual criminal, the minimum or maximum sentence might be less. See State v. Journey, 201 Neb. 607, 271 N.W.2d 320 (1978).

(Emphasis supplied.) Id. at 245, 307 N.W.2d at 125.

We therefore set aside the sentences and remanded the case to the trial court for proper sentencing. See State v. Gaston, 191 Neb. 121, 214 N.W.2d 376 (1974). Upon remand the trial court, for reasons not at all clear from the record, resentenced Rolling as follows: count I, misdemeanor theft, 161 days in jail; count II, felony theft, 1 year in the Nebraska state penitentiary; count III, attempted robbery, felony, 5 years in the Nebraska state penitentiary; count IV, use of a firearm to commit a felony, not less than 10 nor more than 60 years in the Nebraska state penitentiary. Counts I, II, and III were to be served concurrently with each other, and count IV was to be served consecutive to the sentences imposed on counts I, II, and III. The records before this court indicate that Rolling took no direct appeal of that sentence to this court but, instead, on December 14, 1982, filed a petition seeking post conviction relief pursuant to the provisions of Neb.Rev.Stat. § 29-3001 (Reissue 1979). The trial court denied Rolling's petition, and on appeal to this court the denial of relief was affirmed under our Neb.Ct.R. 7 B(2) (Rev.1983).

Rolling, dissatisfied with that result, filed a second petition on September 12, 1983, seeking post conviction relief, and once again the trial court dismissed his petition. It is from this denial that he now appeals to this court.

Normally, we would not grant any relief in this case on the basis that matters relating to sentences imposed within statutory limits are not a basis for post conviction relief. See State v. DeLoa, 194 Neb. 270, 231 N.W.2d 357 (1975). Further, once post conviction relief has been denied, subsequent petitions will not be entertained unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time of the filing of the prior motion for post conviction relief. See, State v. Newton, 202 Neb. 361, 275 N.W.2d 297 (1979); State v. Ohler, 215 Neb. 401, 338 N.W.2d 776 (1983). We are, however, compelled to accept jurisdiction in this case because the sentences imposed by the trial court still do not conform to the requirements of law and, therefore, are invalid on their face.

Section 29-2221 clearly and specifically provides as follows:

(1) Whoever has been twice convicted of crime, sentenced and committed to prison, in this or any other state, or by the United States, or once in this state and once at least in any other state, or by the United States, for terms of not less than one year each, shall, upon conviction of a felony committed in this state, be deemed to be an habitual criminal, and shall be punished by imprisonment in the Nebraska Penal and Correctional Complex for a term of not less than ten nor...