State v. Turner, 39909

• Decision Date: 03 July 1975
• Docket Number: No. 39909,39909
• Citation: 194 Neb. 252,231 N.W.2d 345
• Parties: STATE of Nebraska, Appellee, v. Willie A. TURNER, Appellant.
• Court: Nebraska Supreme Court

Page 345

231 N.W.2d 345

194 Neb. 252

STATE of Nebraska, Appellee, v. Willie A. TURNER, Appellant.

No. 39909.

Supreme Court of Nebraska.

July 3, 1975.

Syllabus by the Court

1. The enactment of the Post Conviction Act, sections 29--3001 to 29--3004, R.S.Supp., 1974, did not eliminate the common law remedy of writ of error coram nobis.

2. A remedy is cumulative when it is created by statute and is in addition to a remedy which still remains in force.

3. A writ of error coram nobis reaches only matters of fact, unknown to the applicant at the time of judgment, not discoverable by him with reasonable diligence, and which fact or facts are of such a nature that if known to the court would have prevented the entry of judgment.

4. In an application for post conviction relief, if the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief the court may deny an evidentiary hearing.

5. In this state forms of action have been abolished and the nature of an action is to be judged by what is pled and not by the name which may have been applied to the pleading.

6. In a proceeding under the Post Conviction Act the applicant is required to plead facts which, if proved, constitute a violation or infringement of constitutional rights, and the pleading of mere conclusion of fact or law is not sufficient to require the court to grant an evidentiary hearing.

7. Where, in a criminal prosecution, a defendant, through his counsel, files a motion to suppress evidence taken in a search and seizure alleged to have been in violation of the Constitution of the United States, and the parties, through counsel, enter into a stipulation for the trial of the motion upon the basis of evidence submitted in a companion case, reserving the right to present additional evidence by or on behalf of the defendant, and then proceed to trial without offering either the stipulated evidence or additional evidence, such conduct constitutes a waiver of rights on the motion to suppress, and the unexplained absence of the defendant at the session where the stipulation was entered into is not ground for post conviction relief.

Willie Turner, pro se.

Paul L. Douglas, Atty. Gen., Jerold V. Fennell, Sp. Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

CLINTON, Justice.

Defendant was convicted by a jury of unlawfully possessing a controlled substance with intent to deliver and was sentenced to a term of 3 to 9 years in the Nebraska Penal and Correctional Complex. On appeal to this court his conviction was affirmed. State v. Turner, 192 Neb. 397, 222 N.W.2d 105.

The present appeal arises from the denial of what the defendant, who appeared pro se both here and in the trial court, describes as an application for a writ of error coram nobis. The error assigned is that the trial court erred in denying the application. We affirm.

The transcript indicates that the trial court's denial of the application was based upon an examination of the application itself and of the files and records in the case, including the bill of exceptions which was before this court when we affirmed the conviction. No evidentiary hearing was held on the application.

The first question which we must decide is a preliminary one. Is this proceeding truly an application for a writ of error coram nobis, or is it an application for relief under the post conviction act, sections 29--3001 to 29--3004, R.S.Supp., 1974? For reasons we outline shortly, the correctness of the action of the trial court's determination depends in part upon the answer to that question.

The remedy provided by the Post Conviction Act and that afforded under the ancient common law writ of error coram nobis overlap to some degree. 24 C.J.S. Criminal Law § 1606(1), p. 661 et seq. In some jurisdictions the adoption of a post conviction hearing act has been said to have completely replaced the writ of error coram nobis. Strong v. Gladden, 225 Or. 345, 358 P.2d 520; Mitchell v. State, 229 Ark. 469, 317 S.W.2d 1; Brady v. State, 222 Md. 442, 160 A.2d 912. In this state, however, the Post Conviction Act does not have the broad reach of similar acts of some of the other states. The recommendation of the American Bar Association Standard 1.1, Post-Conviction Remedies, for the adoption of a unitary post conviction remedy replacing all existing procedures and encompassing 'all claims whether factual or legal in nature' for reviewing the validity of judgments of conviction was not adopted by this state. Section 29--3003, R.S.Supp., 1974, provides: 'The remedy provided by sections 29--3001 to 29-3004 is cumulative and is not intended to be concurrent with any other remedy existing in the courts of this state. Any proceeding filed under the provisions of sections 29--3001 to 29--3004 which states facts which if true would constitute grounds for relief under another remedy shall be dismissed without prejudice.' Our Post Conviction Act reaches only the claims of a 'prisoner in custody under sentence' asking to be 'released on the ground that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States.' § 29--3001, R.S.Supp., 1974. A remedy is cumulative when it is created by statute and is in addition to another remedy which still remains in force. People v. Santa Fe Federal Savings & Loan Assn., 28 Cal.2d 675, 171 P.2d 713; 10 A Words and Phrases, 'Cumulative Remedy,' p. 414. The cumulative remedy may not be pursued simultaneously with the previously existing remedy. State v. Carr, 181 Neb. 251, 147 N.W.2d 619; State v. Williams, 181 Neb. 692, 150 N.W.2d 260.

In the case of Carlsen v. State, 129 Neb. 84, 261 N.W. 339, this court breathed life into the writ of error coram nobis and held it to exist by virtue of the provisions of section 49--101, Compt.St.1929, and the provisions of our Constitution. The cited section of the statute preserved in this state the common law of England insofar as it is not inconsistent with our statutes and Constitution. As interpreted by this court in that case and others, including Parker v. State, 178 Neb. 1, 131 N.W.2d 678, the writ reaches only matters of fact, unknown to the applicant at the time of judgment, not discoverable by him with reasonable diligence, and which fact or facts are of such a nature that if known to the court they would have prevented entry of the judgment. See, also, 24 C.J.S. Criminal Law § 1606(7), p. 688 et seq. The remedy is not available to correct errors of law. 24 C.J.S. Criminal Law § 1606(8), p. 694. The writ does not reach such matters as the legality of a search or seizure. Winston v. United States, 2 Cir., 224 F.2d 337; Engling v. State, 178 Kan. 564, 290 P.2d 1009; People v. Cole, 152 Cal.App.2d 71, 312 P.2d 701.

In most states the application for the writ is regarded as a new action and not a continuation of the original proceeding. 24 C.J.S. Criminal Law § 1606(20), p. 758. Ordinarily in such an action, if the application states a prima facie cause for relief a hearing must be held. 24 C.J.S. Criminal Law § 1606(31), § 1606(28), pp. 820, 783. In such an action the State is the proper party defendant and entitled to notice. 24 C.J.S. Criminal Law § 1606(27), p. 781. The State is entitled to raise in the trial court the sufficiency of the application. 24 C.J.S. Criminal Law § 1606(28), p. 783; and an opportunity to reply. Op. Cit.

An examination of our opinions in Parker v. State, Supra; Carlsen v. State, Supra, and Hawk v. State, 151 Neb. 717, 39 N.W.2d 561, would indicate that generally the above procedure has been the practice in this state. It seems clear, therefore, that if an application pleads facts unknown to the applicant at the time the judgment was entered, which facts were not readily discoverable by him and which are of such a nature that they would have precluded entry of the judgment, then a hearing must be held for the very nature of the proceedings is to show facts not disclosed by the record. It would seem obvious in such a case that the mere examination of the files and records does not suffice except perhaps where they clearly contradict the material allegations of the application for the writ.

In this case, no one served a notice upon the State following the filing of the application, no responsive pleading was made by the State at any time, and no appearance was made by the State prior to the filing of its briefs in this court. If this case is properly to be treated as an application for writ of error coram nobis, there is no statutory sanction for the informal way in which the matter was handled.

On the other hand, if the application, despite the name which the application has applied to it, is to be properly treated as one for post conviction relief, then our statute provides: 'Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.' § 29--3001, R.S.Supp., 1974.

The writ of error coram nobis is a common law civil proceeding applicable both to civil and criminal judgments. 24 C.J.S. Criminal Law § 1606(2), p. 669. Although our statutes and Constitution preserve the common law remedy, forms of action have been abolished and the nature of the action is to be judged by what is pled and not by the name which may have been applied to it. § 25--101, R.R.S.1943; 24 C.J.S. Criminal Law § 1606(22), p. 766; State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676. Defendant did not plead facts which entitled him to relief by writ of error coram nobis.

In the light of the previously...