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311 Nebraska Reports

GRAY v. FRAKES

Cite as 311 Neb. 409

Graylin Gray, appellant, v. Scott R. Frakes, 

director, Nebraska Department of Correctional 

Services, and Kevin J. Wilken, administrative 

assistant III, in their official 

capacities, appellees.

___ N.W.2d ___

Filed April 22, 2022. No. S-21-257.

1. Motions to Dismiss: Appeal and Error. A district court’s grant of a 

motion to dismiss is reviewed de novo.

2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing 

an order dismissing a complaint, the appellate court accepts as true 

all facts which are well pled and the proper and reasonable inferences 

of law and fact which may be drawn therefrom, but not the plaintiff’s conclusion.

3. Statutes: Appeal and Error. Statutory interpretation is a question of 

law that an appellate court resolves independently of the trial court.

Petition for further review from the Court of Appeals, 

Pirtle, Chief Judge, and Moore and Bishop, Judges, on 

appeal thereto from the District Court for Johnson County, 

James E. Doyle IV, Judge. Judgment of Court of Appeals 

affirmed.

Graylin Gray, pro se.

Douglas J. Peterson, Attorney General, James D. Smith, and 

Charles E. Chamberlin for appellees.

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

and Papik, JJ.

Nebraska Supreme Court Online Library

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

06/10/2022 01:06 AM CDT
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GRAY v. FRAKES

Cite as 311 Neb. 409

Papik, J.

Graylin Gray, an inmate serving a term of incarceration 

in the custody of the Nebraska Department of Correctional 

Services (DCS), sought a writ of mandamus in the district 

court. He claimed that DCS incorrectly calculated his mandatory release date. The district court dismissed Gray’s amended 

petition, and Gray appealed. The Nebraska Court of Appeals 

summarily affirmed, and we granted Gray’s petition for further 

review. Gray contends recalculation of his mandatory release 

date is required, because in sentencing him as a habitual criminal on two felony counts, the sentencing court did not pronounce that it was imposing “mandatory minimum” sentences. 

We find that no specific pronouncement of a “mandatory 

minimum” sentence is required for DCS to treat the sentence as 

such in calculating an inmate’s mandatory discharge date and 

therefore affirm.

BACKGROUND

Convictions and Sentences.

Gray was convicted in 2007 of unlawful possession of four 

or more financial transaction devices and unlawful circulation 

of financial transaction devices in the first degree. Following 

enhancement proceedings, Gray was found to be a habitual 

criminal and sentenced to 10 to 20 years’ imprisonment on 

each count, to be served consecutively.

The Court of Appeals affirmed Gray’s convictions and sentences on direct appeal in an unpublished memorandum opinion filed on March 12, 2009, in case No. A-08-336. We denied 

further review.

Mandamus Action Underlying Present Appeal.

In the years after his direct appeal, Gray made numerous 

unsuccessful challenges to the convictions and sentences at 

issue. See, e.g., Gray v. Kenney, 290 Neb. 888, 863 N.W.2d 

127 (2015). In the matter now before us, Gray, representing 

himself, petitioned the district court for a writ of mandamus 
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GRAY v. FRAKES

Cite as 311 Neb. 409

requiring DCS officials to change his mandatory discharge date 

to April 2026. Gray asserted in his verified amended petition 

that DCS had impermissibly modified his sentence by setting 

his mandatory discharge date for April 2036.

Gray attached a copy of the district court’s written sentencing order to his amended petition. In the written sentencing 

order, the district court stated that it was sentencing Gray to “a 

period of not less than 10 years nor more than 20 years” for 

each of the two counts, to be served consecutively. The written sentencing order did not contain a specific reference to its 

habitual criminal finding or a mandatory minimum sentence.

Gray’s petition also referred to his sentencing hearing. At 

the sentencing hearing, the district court mentioned its finding 

that Gray was a habitual criminal. In its oral pronouncement 

of Gray’s sentences, the district court ordered Gray imprisoned 

for “a period of not less than 10 years nor more than 20 years” 

for each of the two counts, to be served consecutively.

The district court later stated, “[Y]ou must serve 20 years, 

minus credit for any time previously served, towards parole 

eligibility and 20 years, minus credit for any time previously 

served, towards mandatory discharge. You are given credit 

for 676 days previously served.” The prosecutor then asked 

whether Gray had to serve 10 years before good time began to 

accrue. The district court responded, “It was my understanding that you’re not parole eligible on a mandatory minimum 

sentence of 10 years on each count.” Gray agreed, “You got 

to do a mandatory.” The district court also stated, “[I]t’s my 

understanding you have to serve a minimum of 20 years 

before you would be considered for discharge.” Gray again 

agreed, “Correct.”

DCS records and correspondence attached to Gray’s 

amended petition reflect that DCS initially set Gray’s mandatory release date for April 2026, but later concluded that Gray 

must serve 30 years before mandatory discharge, minus credit 

for 676 days served, and set his mandatory discharge date 
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GRAY v. FRAKES

Cite as 311 Neb. 409

for April 2036. In correspondence with Gray, DCS explained 

that Gray was sentenced to two consecutive 10-to-20-year 

terms, with each count carrying a habitual criminal enhancement of a 10-year mandatory term, and that it computed his 

mandatory discharge date based on State v. Castillas, 285 Neb. 

174, 826 N.W.2d 255 (2013), disapproved on other grounds, 

State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015). In 

that case, we held that a defendant must serve the mandatory 

minimum portion of a sentence before earning good time credit 

toward the maximum portion and explained, “[T]he mandatory discharge date is computed by subtracting the mandatory 

minimum sentence from the maximum sentence, halving the 

difference, and adding that difference to the mandatory minimum.” Castillas, 285 Neb. at 191, 826 N.W.2d at 268. See, 

also, Caton v. State, 291 Neb. 939, 869 N.W.2d 911 (2015) 

(quoting Castillas, supra).

On its own motion, the district court issued an order directing the parties to show cause why Gray’s mandamus action 

should not be dismissed with prejudice for failure to state a 

cause of action, in part because DCS had properly calculated 

the mandatory release date pursuant to Caton, supra, and 

Castillas, supra. Gray responded that Caton and Castillas did 

not apply because he was not sentenced to two mandatory

minimum sentences of 10 years each. The district court disagreed and dismissed Gray’s amended petition, citing Neb. Ct. 

R. Pldg. § 6-1112(b)(6).

Gray appealed. His brief assigned in part that the district 

court erred in dismissing his petition based on its finding that 

the April 2036 mandatory release date was accurate. DCS 

filed a motion for summary affirmance. In a minute entry, 

the Court of Appeals sustained DCS’ motion to summarily 

affirm the district court’s dismissal, citing Caton for the abovementioned principles.

We granted Gray’s petition for further review and ordered 

the matter submitted without oral argument.
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GRAY v. FRAKES

Cite as 311 Neb. 409

ASSIGNMENT OF ERROR

Gray assigns that the Court of Appeals erred in summarily 

affirming the district court’s order that dismissed his amended 

petition for a writ of mandamus.

STANDARD OF REVIEW

[1,2] A district court’s grant of a motion to dismiss is 

reviewed de novo. DMK Biodiesel v. McCoy, 285 Neb. 974, 

830 N.W.2d 490 (2013). When reviewing an order dismissing 

a complaint, the appellate court accepts as true all facts which 

are well pled and the proper and reasonable inferences of law 

and fact which may be drawn therefrom, but not the plaintiff’s 

conclusion. Id.

[3] Statutory interpretation is a question of law that an 

appellate court resolves independently of the trial court. Id.

ANALYSIS

Procedure.

The district court determined that Gray’s amended petition failed to state a claim and dismissed it pursuant to 

§ 6-1112(b)(6). Before turning to Gray’s argument in support 

of his petition for further review, we sound a note of caution 

regarding the procedure employed in the district court.

Although we have previously reviewed dismissals of mandamus actions based on § 6-1112(b)(6), see, e.g., State ex rel. 

Jacob v. Bohn, 271 Neb. 424, 711 N.W.2d 884 (2006), and 

a commentator has written that the sufficiency of the petition to obtain a writ of mandamus may be challenged under 

that provision, see John P. Lenich, Nebraska Civil Procedure 

§ 20:11 (2022), the statutes that set forth procedures governing 

mandamus actions do not appear to contemplate the evaluation 

of petitions for mandamus relief under § 6-1112(b)(6). See 

Neb. Rev. Stat. § 25-2156 et seq. (Reissue 2016). Moreover, 

we recently concluded in another context that motions under 

§ 6-1112(b) should play no role where the governing procedures were set forth by statute and such motions were not 
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Cite as 311 Neb. 409

mentioned. See Maria T. v. Jeremy S., 300 Neb. 563, 915 

N.W.2d 441 (2018) (explaining that § 6-1112(b) should play 

no role in child custody habeas proceeding; that procedure set 

forth in habeas statutes governs; and that habeas statutes do not 

describe by what means, if any, respondent may challenge sufficiency of relator’s application).

In this case, Gray does not contend that the district court 

erred by evaluating his amended petition under § 6-1112(b)(6); 

rather, he only disagrees with the conclusion the district court 

reached in conducting that analysis. We therefore limit our 

review today to that issue.

Merits.

On further review, Gray argues that he is entitled to a writ 

of mandamus, because DCS has incorrectly calculated his 

mandatory discharge date. Gray’s petition for further review 

rests solely on the contention that he was not sentenced to 

mandatory minimum terms and that therefore, the principles 

articulated in Caton and Castillas do not govern his mandatory 

discharge date.

Gray does not and could not dispute that if he is subject to 

mandatory minimum terms, DCS’ calculation of his mandatory 

discharge date is accurate. See, Caton, supra; Castillas, supra. 

Consequently, the only issue that requires discussion is a narrow one: whether DCS was correct to treat Gray’s sentences as 

mandatory minimum terms in setting his mandatory discharge 

date. We conclude that it was. As we will explain, in imposing 

a sentence subject to a habitual criminal enhancement, a court 

is not required to pronounce that the sentence is the “mandatory minimum” for DCS to treat it as such in calculating an 

inmate’s mandatory discharge date.

Gray was convicted of two felony counts. After an enhancement hearing, the district court determined Gray to be a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 

2016). At that time and still today, “the court shall sentence such person . . . as a habitual criminal.” § 29-2221(2). 
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GRAY v. FRAKES

Cite as 311 Neb. 409

Section 29-2221(1) directs that a person convicted of a felony 

and deemed to be a habitual criminal “shall be punished by 

imprisonment in [a DCS] adult correctional facility for a mandatory minimum term of ten years and a maximum term of not 

more than sixty years.”

The district court sentenced Gray to 10 to 20 years on 

each count, to be served consecutively. Gray is correct that 

the district court’s written sentencing order did not designate 

a “mandatory minimum” sentence. The phrase did come up 

at the sentencing hearing, but it appears to have been part of 

the truth-in-sentencing advisement, not the sentences, and the 

meaning of a sentence is, as a matter of law, determined by 

the contents of the sentence itself. See State v. Russell, 291 

Neb. 33, 863 N.W.2d 813 (2015). See, also, Neb. Rev. Stat. 

§ 29-2204 (Reissue 2016) (terms of imprisonment prevail over 

any conflict with truth-in-sentencing advisements). But even if 

the sentences imposed by the district court made no mention 

of a “mandatory minimum” sentence for a habitual criminal, 

we conclude that they were consistent with the district court’s 

statutory obligations.

At the time of Gray’s convictions and sentencing, and 

relevant to the felonies at issue here, § 29-2204(1)(a)(ii)(A) 

(Reissue 2008) provided, “[I]n imposing an indeterminate sentence upon an offender the court shall . . . [f]ix the minimum 

and maximum limits of the sentence to be served within the 

limits provided by law.” See 2002 Neb. Laws L.B. 1, § 8, 3d 

Spec. Sess. See, also, § 29-2204(1) (Reissue 2016) (current 

version containing virtually same language). This language 

plainly obligated the sentencing court to “fix” the minimum 

and maximum terms of incarceration a defendant is ordered to 

serve, but we do not understand it to have required the court 

to also specify as part of the sentences whether a “mandatory 

minimum” applies.

We find confirmation of this understanding in our opinion 

in Russell, supra. Therein, we explained that when the phrase 

“mandatory minimum” is used as a term of art, as it is in the 
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habitual criminal statute, it refers to certain consequences 

regarding probation and parole set by the Legislature for that 

sentence. But we distinguished this concept from the minimum 

term of years that a sentencing court is statutorily authorized to 

impose. We also explained that even when “mandatory minimum” is used as a term of art, it is the minimum term of years 

provided by statute that affects the range of penalties that a 

sentencing court may impose, not the word “mandatory.”

In this case, the district court complied with § 29-2204, as 

we have explained it, by fixing the minimum and maximum 

terms of Gray’s sentences within the statutory range for a 

habitual criminal. Section 29-2204 did not require the district 

court to also pronounce any “mandatory minimum” as part of 

the sentences.

But the word “mandatory” in § 29-2221 is not without effect. 

Once Gray was committed to the custody of DCS, it became 

DCS’ responsibility to implement his sentences, and we have 

held that mandatory minimum sentences under § 29-2221 carry 

consequences in which DCS plays a role. See, Davis v. State, 

297 Neb. 955, 902 N.W.2d 165 (2017); Caton v. State, 291 

Neb. 939, 869 N.W.2d 911 (2015). For instance, the offender 

cannot become eligible for parole until the mandatory minimum is served in full, and good time credits can be applied to 

the maximum term of an indeterminate sentence only after the 

offender serves the mandatory minimum. See, Davis, supra; 

Caton, supra; Neb. Rev. Stat. § 83-1,110 (Reissue 2014). It is 

DCS that manages information relevant to parole eligibility, 

as well as good time credits. See Neb. Rev. Stat. §§ 83-1,107 

and 83-1,109 (Reissue 2014). And as we stated earlier, we 

have set forth how DCS should calculate an inmate’s mandatory discharge date: By “subtracting the mandatory minimum 

sentence from the maximum sentence, halving the difference, 

and adding that difference to the mandatory minimum.” State 

v. Castillas, 285 Neb. 174, 191, 826 N.W.2d 255, 268 (2013), 

disapproved on other grounds, State v. Lantz, 290 Neb. 757, 

861 N.W.2d 728 (2015). See, also, Caton v. State, supra.
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In setting Gray’s mandatory discharge date, DCS treated the 

low end of his sentences as mandatory minimums, as provided 

by law. As we have explained, when the district court found 

Gray to be a habitual criminal, § 29-2221 required that he be 

punished with a mandatory minimum term. In other words, 

Gray’s minimum terms within the statutory range were mandatory minimum terms by operation of law, whether the district 

court specifically pronounced them to be mandatory minimum 

terms or not.

Under the circumstances here, we conclude that DCS was 

correct to treat Gray’s sentences as mandatory minimums in 

calculating his mandatory discharge date. Accordingly, we find 

that the Court of Appeals did not err in summarily affirming 

the district court’s dismissal of Gray’s amended petition for a 

writ of mandamus.

CONCLUSION

Finding no merit to the error alleged by Gray, we affirm the 

judgment of the Court of Appeals.

Affirmed.

Freudenberg, J., not participating.