State v. Schnell
| Decision Date | 10 November 2008 |
| Docket Number | No. A-08-533.,A-08-533. |
| Citation | 757 N.W.2d 732,17 Neb. App. 211 |
| Parties | STATE of Nebraska, appellee, v. John R. SCHNELL, appellant. |
| Court | Nebraska Court of Appeals |
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
This matter is before us on John R. Schnell's motion to withdraw his appeal, the State's objection to the motion, and on the merits of the appeal. We determine that an appellant is not always entitled to dismiss his or her appeal as a matter of right, and we overrule Schnell's motion. Because we find plain error in the sentences imposed by the district court — done consistently with the court's similarly incorrect advisement regarding the penalty consequences of Schnell's pleas — we reverse the judgment of the court and remand the cause for further proceedings.
Schnell pled guilty to four crimes: count I, robbery; count II, use of a deadly weapon to commit a felony; count III, robbery; and count IV, use of a deadly weapon to commit a felony. Before accepting the pleas, the district court advised Schnell as follows:
THE COURT: And do you understand these are all Class II felonies and the maximum possible sentence for a Class II felony is 50 years['] imprisonment, and it can carry a one year minimum sentence, do you understand?
[Schnell]: Yes, ma'am.
THE COURT: And do you understand that if you are sentenced to terms of imprisonment on more than one charge, when it comes to — with the two use charges, [c]ounts II and IV, the [c]ourt must run those sentences consecutive to the charges before, to each of the robbery charges, and that means one after another, do you understand that?
[Schnell]: I understand.
THE COURT: But the [c]ourt does have the discretion, the [c]ourt could run all four of them consecutive one after another, which would add up to a possible total of 200 years, but I also have the discretion, I could run [c]ount II concurrent with [c]ounts III and IV. Do you understand that I have discretion?
[Schnell]: Yes, ma'am.
The district court accepted the pleas and subsequently sentenced Schnell to 8 to 12 years' imprisonment on counts I and III (the two robbery counts) and 4 to 8 years' imprisonment on counts II and IV (the two use of a weapon counts). The court ordered count II (the first use of a weapon count) to be served consecutively to count I (the first robbery count), count IV (the second use of a weapon count) to be served consecutively to count III (the second robbery count), and counts III and IV (the second robbery and use of a weapon counts) to be served concurrently with counts I and II (the first robbery and use of a weapon counts).
Schnell timely appealed and filed an appellate brief, which challenged only the excessiveness of the sentences. The State then filed its appellate brief, arguing that the sentences were not excessive and pointing out potential plain error in the court's failure to make the sentences for use of a weapon consecutive to any other sentence imposed. Schnell thereafter moved to withdraw his appeal, but provided no reason for withdrawal. The State objected, stating that the district court's order was invalid and constituted plain error and that this court has the power to remand the cause for the imposition of a lawful sentence when an erroneous sentence has been pronounced. Schnell filed an objection to the State's objection, asserting that the State did not have standing to object to the dismissal both because the State "failed to appeal the sentence" and because the State "failed to file a cross-appeal." Schnell also filed a reply brief in which he argued that his pleas were not voluntarily made, because the district court advised him that it had the discretion to run one sentence for use of a deadly weapon concurrently with the sentences on other counts.
Pursuant to Neb. Ct. R.App. P. §§ 2-106(E) and 2-111(E)(5)(b), no oral argument was allowed.
Schnell alleges that the court abused its discretion by rendering an excessive sentence.
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Kinkennon, 275 Neb. 570, 747 N.W.2d 437 (2008).
Consideration of plain error occurs at the discretion of an appellate court. State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
Whether Appellant May Dismiss Appeal as Matter of Right.
As set forth above, 6 days after the State filed its appellate brief, Schnell moved to withdraw his appeal. The State promptly objected. Although Schnell purported to object to the State's objection, the rules of appellate practice do not authorize an objection to an objection. See Neb. Ct. R.App.P. §§ 2-107(B)(4) and (5) and 2-108(D). Despite this technical flaw, the issues raised by Schnell's filing are inherent in our consideration of the motion to dismiss the appeal. Schnell's reply brief did not address the State's suggestion of plain error, but by addressing Schnell's pleas, it seems to concede that plain error exists in the sentences for use of a weapon. Before addressing issues of error in the sentences, we first consider Schnell's motion to dismiss his appeal.
[1] Under the rules of appellate procedure prescribed by the Nebraska Supreme Court, generally, an appellant may dismiss his or her appeal. See § 2-108(A). Thus, the Supreme Court has long held that as a general rule, an appellant may dismiss his or her appeal without the consent of the appellee. See Marvel v. Craft, 116 Neb. 802, 219 N.W. 242 (1928).
But even though the appellee's consent is not needed, the court rule on dismissal of an appeal shows that an appellant's motion to dismiss does not automatically require dismissal. First, § 2-108(B) requires the party seeking dismissal to file a motion to dismiss and § 2-108(C) requires the party to serve the motion upon the attorney or attorneys of record for all other parties. Second, the second sentence of § 2-108(D) states, "Appellee's response to the motion must be made within 14 days." This supports the State's right to respond to Schnell's motion to dismiss the appeal and dovetails the general right to respond to a motion afforded under § 2-106(C)(2) (). Third, under the remainder of § 2-108(D), (Emphasis supplied.) The State has not filed a notice of intention to cross-appeal, but, as discussed below, in the instant case the State has no right to file such a notice as it has no right of cross-appeal.
[2, 3] The State cannot obtain a review of a trial court's final order in a criminal case by asserting a cross-appeal. State v. Halsey, 232 Neb. 658, 441 N.W.2d 877 (1989). Absent specific statutory authorization, the State, as a general rule, has no right to appeal an adverse ruling in a criminal case. State v. Merrill, 273 Neb. 583, 731 N.W.2d 570 (2007). In the case before us, the State did not assert a cross-appeal and it would not have had a right of cross-appeal, because it did not comply with the statutory prerequisites to docket error proceedings. Accordingly, the portion of § 2-108(D) allowing a party having a right of cross-appeal to file a notice of intention to cross-appeal is not implicated. However, this does not impair the State's right to file a response — a right specifically afforded under the second sentence of § 2-108(D) and generally provided by § 2-106(C)(2).
Thus, the question becomes, Does an appellant have the absolute right to dismiss his or her appeal, or is dismissal upon an appellant's motion a matter of judicial discretion? Because our research has not uncovered any Nebraska law or rule on the specific issue, we turn to other sources.
"An appeal cannot be dismissed except on leave of court, and an appellant cannot do it as a matter of right." 5 C.J.S. Appeal and Error § 751 at 20-21 (2007). In In re Estate of Tucci, 104 N.C.App. 142, 408 S.E.2d 859 (1991), the Court of Appeals of North Carolina determined that a party's attempt to withdraw its appeal was ineffective. The court stated it was well established that " " Id. at 149, 408 S.E.2d at 864, quoting Davidson v. Stough, 258 N.C. 23, 127 S.E.2d 762 (1962).
As a general proposition, an appellant does not possess an absolute right to withdraw his appeal. State v. Gaffey, 92 N.J. 374, 456 A.2d 511 (1983). See, also, DeGarmo v. Goldman, 19 Cal.2d 755, 123 P.2d 1 (1942); Henderson v. Dreyfus, 26 N.M. 262, 191 P. 455 (1920). The Gaffey court stated that New Jersey court rules do not give appellants the right unilaterally to withdraw their appeals and that New Jersey appellate courts had recognized that an appeal can be withdrawn only with the consent of the court. But, the Gaffey court stated that a court will ordinarily permit an appeal to be voluntarily dismissed, unless prejudice to the appellee will result. In Gaffey, however, it was the state that was seeking to withdraw the appeal, and the court determined that it could require the state to maintain its appeal when the rights of the defendant may be prejudiced. In DeGarmo, the court refused to dismiss the appeal because dismissal may adversely affect a coappellant's rights. In Henderson, the Supreme Court of New Mexico stated, "The authorities are uniform to the effect that an appeal cannot be dismissed...
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