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Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. PARNELL

Cite as 301 Neb. 774

State of Nebraska, appellee, v.

Tracy N. Parnell, appel

___ N.W.2d ___

Filed November 30, 2018. No. S-18-413.

1. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the lower court’s 

conclusions.

2. Negligence: Public Officers and Employees: Pleadings: Appeal and 

Error. The appropriate filing procedure when an appeal is lost due to 

official negligence is for the party seeking relief to file a motion in 

the lower court, seeking the ability to establish the basis for obtaining relief.

3. Presumptions. A letter properly addressed, stamped, and mailed raises a 

presumption that the letter reached the addressee in the usual course of 

the mails.

4. Public Officers and Employees: Presumptions. In the absence of 

evidence to the contrary, it may be presumed that public officers faithfully performed their official duties, and absent evidence showing 

misconduct or disregard of the law, the regularity of official acts is 

presumed.

Appeal from the District Court for Douglas County: Gary B.

Randall, Judge. Reversed and remande

Tracy N. Parnell, pro se.

Douglas J. Peterson, Attorney General, and Stacy M. Foust 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, 

Papik, JJ

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

02/15/2019 01:06 AM CST
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Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. PARNELL

Cite as 301 Neb. 774

Heavican, C

INTRODUCTION

Tracy N. Parnell filed a pro se motion for postconviction 

relief on July 12, 2017. The district court denied the motion 

without a hearing. Parnell then filed a motion to vacate or 

modify the judgment, contending that he was not informed 

of the denial and was thus unable to file a timely appeal. 

Parnell sought a hearing at which he could prove that he was 

not served with the district court’s order denying his motion. 

The district court denied the motion without a hearing. Parnell 

appeals. We reverse.

BACKGROUND

Parnell was convicted of first degree murder, attempted 

first degree murder, two counts of use of a deadly weapon to 

commit a felony, and possession of a weapon by a prohibited 

person. This court affirmed Parnell’s convictions and sentences 

on direct appeal.1

On July 12, 2017, Parnell filed a motion seeking postconviction relief. The district court dismissed the motion without 

an evidentiary hearing on August 17. The clerk of the court 

certified that a copy of that dismissal was sent to the State and 

to Parnell.

On March 16, 2018, Parnell filed a motion alleging that he 

never received a copy of the order dismissing his postconviction motion and thus was unable to file a timely appeal. Along 

with the motion to vacate, Parnell requested a hearing on his 

motion. Parnell’s motion to vacate was denied on March 21 

without a hearing.

Parnell appeals from that denial. In its brief, the State 

agrees with Parnell that the district court erred in denying the 

motion without first holding a hearing.

1 See State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
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Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. PARNELL

Cite as 301 Neb. 774

ASSIGNMENT OF ERROR

Parnell assigns that the district court erred in denying his 

motion to vacate without a hearing.

STANDARD OF REVIEW

[1] When reviewing questions of law, an appellate court 

resolves the questions independently of the lower court’s 

conclusions.2

ANALYSIS

Parnell argues that the district court erred in denying 

his “Motion to Vacate or Modify Judgement and Motion to 

Compel[]” and his request for a hearing on that motion. The 

basis of Parnell’s motion is his allegation that he did not 

receive a copy of the district court’s order dismissing his 

motion for postconviction relief and therefore did not timely 

appeal from that denial. In denying Parnell’s motion without a 

hearing, the district court reasoned that the certificate of service on the postconviction motion indicated that it was served 

on Parnell.

[2] The appropriate filing procedure when an appeal is lost 

due to official negligence is for the party seeking relief to file 

a motion in the lower court, seeking the ability to establish the 

basis for obtaining relief.3

[3,4] A letter properly addressed, stamped, and mailed raises 

a presumption that the letter reached the addressee in the 

usual course of the mails.4 In the absence of evidence to the 

contrary, it may be presumed that public officers faithfully 

performed their official duties, and absent evidence showing 

2 Hotz v. Hotz, ante p. 102, 917 N.W.2d 467 (2018).

3 See State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005).

4 Sherrod v. State, 251 Neb. 355, 557 N.W.2d 634 (2005), overruled on 

other grounds, Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
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Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. PARNELL

Cite as 301 Neb. 774

misconduct or disregard of the law, the regularity of official 

acts is presumed.5

Parnell’s motion alleged that he did not receive a copy of 

the order dismissing his postconviction motion. He sought the 

ability to obtain proof of his allegation and submit the same to 

the court. This was sufficient to obtain a hearing on his claim 

for official negligence.

Furthermore, while the law presumes that a public officer 

will faithfully perform his or her official duties and that a letter, once properly mailed, will reach its addressee, both are 

presumptions that can be overcome by the showing of evidence 

to the contrary. In this case, while Parnell sought the ability to rebut these presumptions, the district court’s denial of 

his motion without a hearing prevented Parnell from offering 

evidence to that end. Whether the presumption can be successfully rebutted will depend on the evidence presented.

The district court erred when it denied the motion without 

holding a hearing at which Parnell was able to offer proof of 

his allegation.

CONCLUSION

The district court erred in denying Parnell’s motion without 

a hearing. We reverse that decision and remand the cause for 

a hearing at which Parnell may offer evidence in connection 

with his assertion that he never received the order dismissing 

his motion for postconviction relief.

Reversed and remand

Freudenberg, J., not participati

5 See State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).