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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. KELLEY

Cite as 305 Neb. 409

State of Nebraska, appellee, v. 

William T. Kelley, appellant.

___ N.W.2d ___

Filed March 27, 2020. No. S-19-227.

1. Judgments: Jurisdiction: Appeal and Error. Determination of a jurisdictional issue which does not involve a factual dispute is a matter of 

law, which requires an appellate court to reach its conclusions independent from those of a trial court.

2. Jurisdiction: Appeal and Error. Before reaching the merits of the 

issues presented for review, it is an appellate court’s duty to determine 

whether it has jurisdiction to decide them.

3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, there must be a final order or final 

judgment entered by the court from which the appeal is taken.

4. Criminal Law: Judgments: Sentences: Appeal and Error. In a criminal case, the judgment from which the appellant may appeal is the 

sentence.

5. Double Jeopardy: Pleadings: Final Orders. Under Neb. Rev. Stat. 

§ 25-1902 (Reissue 2016), a plea in bar is a “special proceeding,” and 

an order overruling a nonfrivolous double jeopardy claim affects a substantial right.

6. Double Jeopardy. The Double Jeopardy Clause protects against three 

distinct abuses: (1) a second prosecution for the same offense after 

acquittal, (2) a second prosecution for the same offense after conviction, 

and (3) multiple punishments for the same offense.

7. Double Jeopardy: Juries: Evidence: Pleas. In Nebraska, jeopardy 

attaches (1) in a case tried to a jury, when the jury is impaneled and 

sworn; (2) when a judge, hearing a case without a jury, begins to hear 

evidence as to the guilt of the defendant; or (3) at the time the trial court 

accepts the defendant’s guilty plea.

Appeal from the District Court for Gage County: Vicky L. 

Johnson, Judge. Appeal dismissed.

Nebraska Supreme Court Online Library

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

03/27/2020 09:06 AM CDT
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. KELLEY

Cite as 305 Neb. 409

Timothy S. Noerrlinger for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

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

and Papik, JJ.

Papik, J.

William T. Kelley appeals the denial of his plea in bar, 

in which he claimed that charges that he committed sexual 

assaults should be barred because the State agreed not to prosecute him for those charges in a prior plea agreement. Kelley’s 

plea in bar did not, however, present a colorable double jeopardy claim. Accordingly, we lack appellate jurisdiction and 

have no choice but to dismiss the appeal.

BACKGROUND

In August 2018, Kelley was charged by information with 

one count of first degree sexual assault and one count of 

third degree sexual assault of a child. Kelley was alleged to 

have committed the first degree sexual assault between June 

1, 2007, and January 11, 2008. Kelley was alleged to have 

committed the third degree sexual assault of a child between 

September 1, 2007, and January 12, 2008. The victim of both 

crimes was alleged to be T.K.

Kelley filed a plea in bar. In the plea in bar, he asserted 

that in March 2009, he entered guilty pleas to multiple criminal charges in two different criminal cases. Kelley claimed 

that he pleaded guilty to those charges as part of an agreement in which the State agreed not to bring any charges 

alleging that he sexually assaulted T.K. Kelley contended 

that by filing criminal charges it had previously agreed not 

to bring, the State was violating rights guaranteed to him by 

the Double Jeopardy Clauses of the federal and the Nebraska 

Constitutions.

The district court held a hearing on Kelley’s plea in bar. 

The evidence introduced at the hearing showed that in 2009, 
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305 Nebraska Reports

STATE v. KELLEY

Cite as 305 Neb. 409

after Kelley had been charged with multiple crimes in two 

different criminal cases, Kelley and the State entered into a 

written plea agreement. Pursuant to that agreement, Kelley 

pleaded guilty to various offenses, the court accepted his 

pleas, and he was found guilty and sentenced accordingly. 

The written plea agreement did not include a promise by the 

State not to prosecute Kelley for alleged assaults on T.K. It 

also included a clause that stated, “[t]he parties to this plea 

agreement state and acknowledge that this document contains 

all of the promises, agreements, and understandings between 

the parties.”

Despite the absence of any indication in the written plea 

agreement that the State was agreeing not to charge Kelley 

with any charges pertaining to T.K., Kelley claimed that was, 

in fact, part of the agreement. In support of that argument, 

Kelley called his attorney in the prior criminal cases as a witness. That attorney testified that an agreement not to prosecute 

Kelley for alleged assaults on T.K. was part of the agreement 

he reached with the prosecutor and that Kelley’s counsel 

had inadvertently omitted it from the written plea agreement. 

Kelley also testified and asserted that the “only reason” he 

agreed to the plea agreement was the State’s agreement not to 

prosecute him for assaults on T.K. The prosecutor in the prior 

criminal cases, however, testified that an agreement not to 

prosecute Kelley for alleged assaults on T.K. was not part of 

the agreement.

The district court overruled the plea in bar. Kelley appealed.

ASSIGNMENTS OF ERROR

Kelley assigns two errors on appeal. He contends that the 

district court erred by overruling his plea in bar. He also asserts 

that he received ineffective assistance of counsel.

STANDARD OF REVIEW

[1] Determination of a jurisdictional issue which does not 

involve a factual dispute is a matter of law, which requires an 

appellate court to reach its conclusions independent from those 
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STATE v. KELLEY

Cite as 305 Neb. 409

of a trial court. Griffith v. Nebraska Dept. of Corr. Servs., 304 

Neb. 287, 934 N.W.2d 169 (2019).

ANALYSIS

[2] Before reaching the merits of the issues presented for 

review, it is our duty to determine whether we have jurisdiction to decide them. See Green v. Seiffert, 304 Neb. 212, 933 

N.W.2d 590 (2019). As we will explain, after exercising that 

duty here, we find that we do not have jurisdiction.

[3,4] For an appellate court to acquire jurisdiction of an 

appeal, there must be a final order or final judgment entered 

by the court from which the appeal is taken. State v. Paulsen, 

304 Neb. 21, 932 N.W.2d 849 (2019). In a criminal case, the 

judgment from which the appellant may appeal is the sentence. 

Id. Kelley has not been sentenced in this case, so we may only 

exercise jurisdiction if he has appealed from a final order. 

Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the four types 

of final orders which may be reviewed on appeal are (1) an 

order affecting a substantial right in an action that, in effect, 

determines the action and prevents a judgment; (2) an order 

affecting a substantial right made during a special proceeding; 

(3) an order affecting a substantial right made on summary 

application in an action after judgment is rendered; and (4) 

an order denying a motion for summary judgment when such 

motion is based on the assertion of sovereign immunity or the 

immunity of a government official.

[5] Kelley contends that our precedent recognizes that an 

order overruling a plea in bar is a final order. We have held 

that a plea in bar is a “special proceeding,” for purposes 

of § 25-1902, and that an order overruling a nonfrivolous

double jeopardy claim affects a substantial right. See State v. 

Williams, 278 Neb. 841, 774 N.W.2d 384 (2009). Based on 

this reasoning, we have reviewed several cases in which the 

trial court overruled a plea in bar, but the defendant presented 

a colorable double jeopardy claim. See, e.g., State v. Huff, 

279 Neb. 68, 70, 776 N.W.2d 498, 501 (2009) (“[appellant’s] 

plea in bar raises a colorable double jeopardy claim, and we 
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STATE v. KELLEY

Cite as 305 Neb. 409

therefore have jurisdiction over this interlocutory appeal”). 

See, also, State v. Bedolla, 298 Neb. 736, 905 N.W.2d 629 

(2018); State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017); 

Williams, supra.

In this case, however, we find that Kelley has not presented 

such a claim. Kelley does assert that the State could not, consistent with the Double Jeopardy Clauses of the federal and 

Nebraska Constitutions, charge him with sexually assaulting 

T.K. He claims that is the case because the State agreed in the 

plea agreement not to do so. He has never, however, explained 

why the State’s alleged breach of the plea agreement amounts 

to a violation of double jeopardy.

[6] Not only has Kelley not made an argument that the 

Double Jeopardy Clauses preclude the State from charging 

him with sexually assaulting T.K., we cannot conceive of a 

colorable one. And that is true even if we assume that the 

State agreed in the plea agreement not to bring charges against 

Kelley alleging that he sexually assaulted T.K. The Double 

Jeopardy Clause protects against three distinct abuses: (1) a 

second prosecution for the same offense after acquittal, (2) 

a second prosecution for the same offense after conviction, 

and (3) multiple punishments for the same offense. State v. 

Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019). Nothing in 

our record indicates that Kelley has previously been acquitted, 

convicted, or punished for sexually assaulting T.K.

[7] Neither is there anything in our record indicating that 

Kelley will be twice placed in jeopardy for sexually assaulting T.K. In Nebraska, jeopardy attaches (1) in a case tried to a 

jury, when the jury is impaneled and sworn; (2) when a judge, 

hearing a case without a jury, begins to hear evidence as to the 

guilt of the defendant; or (3) at the time the trial court accepts 

the defendant’s guilty plea. Id. As far as our record discloses, 

prior to the filing of the information in this case, Kelley had 

not ever been charged with sexually assaulting T.K. and proceedings had certainly not progressed to the point that jeopardy 

had attached with respect to such charges.
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. KELLEY

Cite as 305 Neb. 409

The fact that Kelley has assigned as error on appeal that he 

received ineffective assistance of counsel does not change our 

analysis. Kelley argues that his counsel in the prior criminal 

cases provided ineffective assistance by failing to include language in the written plea agreement that the State would not 

bring charges against Kelley alleging that he sexually assaulted 

T.K. We question whether a party can assert that counsel in a 

prior criminal case was ineffective in the context of a plea in 

bar, but even if that is set to the side and even if we assume 

that Kelley’s ineffective assistance of counsel allegation has 

merit, we see no basis to say that rights guaranteed to Kelley 

by the Double Jeopardy Clauses have been violated.

Our decision today should not be read to hold that a defend

ant has no remedy if the State pursues charges it previously 

agreed not to bring as part of a plea agreement. Indeed, we 

have previously noted that “when the State breaches a plea 

agreement, the defendant generally has the option of either 

having the agreement specifically enforced or withdrawing his 

or her plea.” State v. Smith, 295 Neb. 957, 972, 892 N.W.2d 52, 

63 (2017). But as Kelley’s counsel acknowledged in oral argument, the only remedy he has pursued is a plea in bar based 

on an alleged double jeopardy violation. Because Kelley has 

not asserted a colorable double jeopardy claim, however, we 

lack jurisdiction to decide anything else and are obligated to 

dismiss the appeal.

CONCLUSION

Because Kelley has not presented a colorable double jeopardy claim, the order overruling his plea in bar was not a final, 

appealable order. Accordingly, we dismiss the appeal for lack 

of jurisdiction.

Appeal dismissed.

Freudenberg, J., not participating.