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Decisions of the Nebraska Court of Appeals

23 Nebraska Appellate Reports

STATE v. NEWCOMER

Cite as 23 Neb. App. 761

State of Nebraska, appellee, v. 

James R. Newcomer, appellant.

___ N.W.2d ___

Filed March 8, 2016. No. A-15-790.

1. Constitutional Law: Criminal Law. The Excessive Fines Clause limits 

those fines directly imposed by, and payable to, the government, and 

provides that no excessive fines shall be imposed.

2. Pleas: Waiver. The voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge, whether the defense is procedural, 

statutory, or constitutional.

3. Constitutional Law: Criminal Law. The Eighth Amendment to the 

U.S. Constitution and article I, section 9, of the Nebraska Constitution 

prohibit the imposition of excessive fines.

4. ____: ____. The purpose of the Excessive Fines Clause is to limit the 

government’s power to extract payments, whether in cash or in kind, as 

punishment for some offense.

5. ____: ____. A criminal forfeiture is a form of monetary punishment no 

different, for Eighth Amendment purposes, than a traditional fine.

6. ____: ____. In determining whether a fine is so excessive as to violate 

the Excessive Fines Clause, the test is whether the penalty is grossly 

disproportional to the gravity of the defendant’s offense.

7. Constitutional Law: Criminal Law: Proof. The party claiming that 

a fine violates the Excessive Fines Clause must first make a prima 

facie showing of gross disproportionality, and if the claimant does so, 

the court then considers whether the disproportionality reaches such 

a level of excessiveness that the punishment is more criminal than 

the crime.

8. Criminal Law. The gravity of an offense can be considered more serious when the defendant has previously committed the same act.

9. Sentences: Legislature. Judgments about the appropriate punishment 

for an offense belong in the first instance to the Legislature.

Nebraska Supreme Court Online Library

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

04/07/2016 12:10 PM CDT
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Decisions of the Nebraska Court of Appeals

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STATE v. NEWCOMER

Cite as 23 Neb. App. 761

10. Criminal Law: Affidavits: Time. A defendant in a criminal case must 

file an application to proceed in forma pauperis within 30 days after the 

entry of judgment, order, or sentence.

11. ____: ____: ____. The relevant date under Neb. Rev. Stat. § 29-2306 

(Reissue 2008) is the date the defendant files the application to proceed in forma pauperis, not the date on which the court grants the 

application.

Appeal from the District Court for Sarpy County: David K. 

Arterburn, Judge. Affirmed.

Patrick J. Boylan, Chief Deputy Sarpy County Public 

Defender, for appellant.

Douglas J. Peterson, Attorney General, and George R. Love 

for appellee.

Pirtle, Riedmann, and Bishop, Judges.

Riedmann, Judge.

INTRODUCTION

James R. Newcomer appeals from his conviction in the 

district court of Sarpy County of forgery of a certificate of 

title. On appeal, he challenges the fine he received as part of 

his sentence and the rejection of his initial poverty affidavit 

attached to his motion to proceed in forma pauperis. Finding 

no merit to his claims, we affirm.

BACKGROUND

Newcomer was initially charged with four counts of forgery 

of a certificate of title, a Class IV felony. Pursuant to a plea 

agreement with the State, Newcomer pled no contest to one 

count and the State dismissed the remaining three counts.

According to the factual basis provided by the State at the 

plea hearing, on November 3, 2014, police officers located 

three vehicles parked outside of Newcomer’s residence, all of 

which had fictitious license plates. Newcomer admitted to the 

officers that the vehicles were his and that he had placed the 
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Decisions of the Nebraska Court of Appeals

23 Nebraska Appellate Reports

STATE v. NEWCOMER

Cite as 23 Neb. App. 761

license plates on the vehicles. Through investigation, police 

determined that Newcomer had purchased 12 vehicles in 2014 

and titled them under his own name, his girlfriend’s name, and 

his two daughters’ names. With respect to four of the vehicles, 

police confirmed that the bills of sale submitted to the Sarpy 

County Department of Motor Vehicles for title processing 

were forged. The true sales prices of the vehicles were $450, 

$500, $800, and $600.

The court accepted Newcomer’s plea and found him guilty. 

On August 3, 2015, Newcomer received a sentence of 60 days 

in jail and a $10,000 fine.

On August 27, 2015, Newcomer filed a notice of appeal, a 

motion to proceed in forma pauperis, and a poverty affidavit. 

The court found that the poverty affidavit was insufficient and 

allowed Newcomer to submit a new affidavit which fully set 

forth his income and assets. Newcomer did so on September 

1, and his motion to proceed in forma pauperis was granted 2 

days later. His appeal is now before this court.

ASSIGNMENTS OF ERROR

Newcomer assigns that the district court erred in imposing a 

grossly disproportionate fine for his crime and in denying his 

first poverty affidavit in support of his application to proceed 

in forma pauperis.

ANALYSIS

Excessive Fine.

[1] Newcomer argues that the fine he received is excessive and grossly disproportionate to the crime, in violation 

of the Excessive Fines Clauses of the U.S. and Nebraska 

Constitutions. The Excessive Fines Clause limits those fines 

directly imposed by, and payable to, the government, and provides that no excessive fines shall be imposed. See, U.S. Const. 

amend. VIII; Neb. Const. art. I, § 9; State v. Hynek, 263 Neb. 

310, 640 N.W.2d 1 (2002). By arguing that the fine imposed 

on him is excessive and unconstitutional, Newcomer is raising 
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Decisions of the Nebraska Court of Appeals

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STATE v. NEWCOMER

Cite as 23 Neb. App. 761

an as-applied constitutional challenge. See State v. Harris, 284 

Neb. 214, 817 N.W.2d 258 (2012).

[2] The State recognizes that challenges to the constitutionality of a statute as applied to a defendant are properly 

preserved by a plea of not guilty and argues that because 

Newcomer pled no contest to the charge, this claim has been 

waived. See id. The State is correct that the voluntary entry of 

a guilty plea or a plea of no contest “waives every defense to 

a charge, whether the defense is procedural, statutory, or constitutional.” See State v. Albrecht, 18 Neb. App. 402, 407, 790 

N.W.2d 1, 6 (2010). But Newcomer’s constitutional challenge 

is not a “defense to a charge”; rather, he now challenges the 

sentence he received, claiming that it violates the constitutional 

prohibition on excessive fines.

In State v. Brand, 219 Neb. 402, 363 N.W.2d 516 (1985), the 

defendant pled guilty to a sexual assault charge. On appeal, he 

argued that, as applied in his particular case, his sentence was 

so excessive that it violated the Cruel and Unusual Punishment 

Clauses of the U.S. and Nebraska Constitutions. The Supreme 

Court found that to the extent his argument could be directed 

to the claim that the statute is unconstitutional by its terms, 

such argument was waived. But the Supreme Court addressed 

the constitutionality of the sentence as applied to the defendant 

and determined that the sentence imposed passed constitutional muster.

Similarly here, Newcomer does not challenge the constitutionality of the statute allowing a $10,000 fine to be imposed 

for the conviction of forgery of a certificate of title. Instead, 

he claims that imposing a $10,000 fine in this case was so 

excessive as to be unconstitutional. This claim has not been 

waived by his no contest plea, and therefore, we will address 

its merits.

[3,4] Both the Eighth Amendment to the U.S. Constitution 

and article I, section 9, of the Nebraska Constitution prohibit the imposition of “excessive fines.” The purpose of the 

Excessive Fines Clause is to limit “the government’s power to 
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STATE v. NEWCOMER

Cite as 23 Neb. App. 761

extract payments, whether in cash or in kind, ‘as punishment

for some offense.’” Austin v. United States, 509 U.S. 602, 609-

10, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993).

[5] There is little case law interpreting the Excessive Fines 

Clause, particularly as it applies to criminal fines as opposed to 

forfeitures. However, the U.S. Supreme Court has determined 

that a criminal forfeiture is a form of monetary punishment no 

different, for Eighth Amendment purposes, than a traditional 

fine. See Alexander v. United States, 509 U.S. 544, 113 S. Ct. 

2766, 125 L. Ed. 2d 441 (1993). Thus, criminal forfeiture cases 

are instructive on analyzing whether a fine is unconstitutionally excessive.

[6] In determining whether a fine is so excessive as to violate the Excessive Fines Clause, the test is whether the penalty 

is grossly disproportional to the gravity of the defendant’s 

offense. See United States v. Bajakajian, 524 U.S. 321, 118 S. 

Ct. 2028, 141 L. Ed. 2d 314 (1998).

[7] The U.S. Supreme Court has expressly declined to 

enunciate a test of gross disproportionality. See Austin v. 

United States, supra. But the Eighth Circuit applies a twopronged approach that first requires the claimant to make a 

prima facie showing of gross disproportionality. U.S. v. Dodge 

Caravan Grand SE/Sport Van, 387 F.3d 758 (8th Cir. 2004). 

If the claimant can make this showing, the court then considers whether the disproportionality reaches such a level of 

excessiveness that the punishment is more criminal than the 

crime. Id.

[8] In the present case, Newcomer argues that his fine is 

excessive because it is disproportionate to the value of the 

vehicles at issue. There is no requirement that the fine be 

proportionate to the pecuniary value of the vehicles, however. 

Rather, the fine must be proportionate to the gravity of the 

offense. Newcomer was initially charged with four counts of 

forgery of a certificate of title before he agreed to plead no 

contest to one count. Thus, without the benefit of the plea 

agreement, Newcomer faced a total of $40,000 in fines. In 
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Decisions of the Nebraska Court of Appeals

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STATE v. NEWCOMER

Cite as 23 Neb. App. 761

addition, as the district court noted at sentencing, this was not 

Newcomer’s first time committing this offense, and he does so 

for the purpose of profit. Newcomer has an extensive history 

of vehicle-related charges, including two counts of forged title 

in 2001, for which he completed a diversion program, and four 

counts of forged title in 2005, for which he received a $250 

fine on each count. The gravity of an offense can be considered 

more serious when the defendant has previously committed 

the same act. See State v. Brand, 219 Neb. 402, 363 N.W.2d 

516 (1985).

[9] We further note that the U.S. Supreme Court has cautioned that “judgments about the appropriate punishment for an 

offense belong in the first instance to the legislature.” United 

States v. Bajakajian, 524 U.S. at 336. Forgery of a certificate 

of title is a Class IV felony, which carries a punishment of up 

to 5 years’ imprisonment, a $10,000 fine, or both. See Neb. 

Rev. Stat. §§ 60-179 (Reissue 2010) and 28-105 (Cum. Supp. 

2014). The Legislature chose to make the crime of forgery of a 

certificate of title a felony offense, punishable by a maximum 

fine of $10,000. Thus, although the fine imposed on Newcomer 

is the maximum allowed by statute, it falls within the statutory 

limits set by the Legislature.

When considering the gravity of the offense, including 

Newcomer’s history, number of current offenses, and motivation for the crimes, we find that Newcomer has failed to make 

a prima facie showing that the fine is grossly disproportionate 

to the offense committed. Accordingly, the fine imposed does 

not constitute an unconstitutionally excessive fine.

Poverty Affidavit.

Out of an “abundance of caution,” Newcomer also assigns 

that the district court erred in denying his initial poverty affidavit filed in support of his motion to appeal in forma pauperis. 

Brief for appellant at 9. We need not address this claim because 

the notice of appeal, application to proceed in forma pauperis, 

and poverty affidavit were filed timely.
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Decisions of the Nebraska Court of Appeals

23 Nebraska Appellate Reports

STATE v. NEWCOMER

Cite as 23 Neb. App. 761

[10,11] Under Neb. Rev. Stat. § 29-2306 (Reissue 2008), a 

defendant in a criminal case must file an application to proceed in forma pauperis within 30 days after the entry of judgment, order, or sentence. The relevant date under § 29-2306 

is the date the defendant files the application, not the date on 

which the court grants the application. State v. Harms, 263 

Neb. 814, 643 N.W.2d 359 (2002). Here, even though the 

district court rejected Newcomer’s initial poverty affidavit, 

Newcomer filed a replacement affidavit within 30 days after 

the sentencing order was filed. Therefore, the requirements of 

§ 29-2306 were satisfied, and this court has jurisdiction over 

the appeal.

CONCLUSION

We find no merit to the arguments raised on appeal. We 

therefore affirm the conviction and sentence.

Affirmed.