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Nebraska Supreme Court Advance S

298 Nebraska Report

STATE v. PAYNE

Cite as 298 Neb. 373

State of Nebraska, appellee, v.

Christopher M. Payne, appell

___ N.W.2d ___

Filed December 8, 2017. No. S-16-1233.

1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a 

factual dispute presents a question of law.

2. Judgments: Appeal and Error. The construction of a mandate issued 

by an appellate court presents a question of law on which an appellate 

court is obligated to reach a conclusion independent of the determination 

reached by the court below.

3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of 

whether the issue is raised by the parties.

4. Postconviction: Final Orders. In a postconviction proceeding, an order 

granting an evidentiary hearing on some issues and denying a hearing on 

others is a final order as to the claims denied without a hearing.

5. Judgments: Appeal and Error. Where the mandate makes the opinion 

of an appellate court a part thereof by reference, the opinion should be 

examined in conjunction with the mandate to determine the nature and 

terms of the judgment to be entered or the action to be taken thereon.

6. Courts: Judgments: Appeal and Error. A district court has an unqualified duty to follow the mandate issued by an appellate court and must 

enter judgment in conformity with the opinion and judgment of the 

appellate court.

7. ____: ____: ____. A lower court may not modify a judgment directed 

by an appellate court; nor may it engraft any provision on it or take any 

provision from it.

8. Judgments: Appeal and Error. No judgment or order different from, or 

in addition to, the appellate mandate can have any effect.

9. Courts: Judgments: Jurisdiction: Appeal and Error. Because a trial 

court is without power to affect rights and duties outside the scope of 

Nebraska Supreme Court Online Library

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

01/26/2018 08:13 AM CST
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Cite as 298 Neb. 373

the remand from an appellate court, any order attempting to do so is 

entered without jurisdiction and is void.

Appeal from the District Court for Sarpy County: William

B. Zastera, Judge. Order vacated, and cause remanded with

directions.

Gregory A. Pivovar for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

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

Kelch, and Funke,

Stacy, 

This is Christopher M. Payne’s second appeal from postconviction proceedings before the district court for Sarpy 

County. In his first appeal, we reversed the district court’s 

order denying postconviction relief and remanded the cause 

for an evidentiary hearing on Payne’s claim that his no contest 

plea was the result of his trial counsels’ ineffective assistance.1

On remand, the district court interpreted our opinion to require 

an evidentiary hearing on a different issue, and Payne timely 

appeals from that order.

We conclude the district court misinterpreted the directions 

on remand and consequently entered an order that exceeded 

the scope of our mandate and was therefore void. We vacate 

the district court’s order and remand the cause with directions.

FACTS

In 2005, Payne was charged with first degree sexual assault 

of a child, incest, and sexual assault of a child. Pursuant to 

a plea agreement, he pled no contest to first degree sexual 

assault of a child and was sentenced to imprisonment for a 

term of 40 to 50 years. Payne did not file a direct appeal. His 

1 State v. Payne, 289 Neb. 467, 855 N.W.2d 783 (2014). 
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Cite as 298 Neb. 373

trial counsel had not withdrawn and was still engaged as counsel during the time an appeal could have been filed.

Postconviction

On August 24, 2012, Payne filed a verified motion for postconviction relief, and he thereafter filed amended and second 

amended motions. In his operative motion, Payne alleged his 

trial attorneys were ineffective in (1) failing to preserve his 

speedy trial rights by filing a motion to discharge; (2) failing 

to move for discharge following a preindictment delay; (3) 

failing to adequately investigate possible defenses, specifically, 

not hiring an expert witness; (4) failing to file a plea in abatement or motion to quash to challenge the State’s failure to provide sufficient evidence as to venue and corpus delecti; and (5) 

advising him to plead guilty or no contest despite the fact that 

a law enforcement witness testified falsely. Read as a whole, 

Payne’s postconviction motion asserted that if his trial counsel 

had not been ineffective in one or more of the five asserted 

ways, he would have insisted on going to trial and would not 

have entered his no contest plea.

The district court denied Payne’s postconviction motion 

without conducting an evidentiary hearing, finding his allegations of ineffective assistance of trial counsel were procedurally barred because he had not filed a direct appeal. Payne 

timely appealed.

First Appe

This court reversed that denial and remanded the cause 

for further proceedings. In doing so, we generally addressed 

two issues: procedural bar and waiver. We concluded Payne’s 

ineffective assistance of counsel claims were not procedurally 

barred, because Payne was still represented by trial counsel at 

the time a direct appeal could have been filed. We explained 

that because trial counsel represented Payne during the entire 

appeal period, Payne’s first opportunity to raise ineffective 

assistance of trial counsel was in a motion for postconviction 
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STATE v. PAYNE

Cite as 298 Neb. 373

relief, and consequently, his claims that trial counsel provided 

ineffective assistance were not procedurally barred.2

We also addressed whether Payne had waived any of the 

claims asserted in his postconviction motion by entering his 

plea of no contest. Generally, a voluntary guilty plea or plea 

of no contest waives all defenses to a criminal charge.3 Thus, 

when a defendant pleads guilty or no contest, he or she is limited to challenging whether the plea was understandingly and 

voluntarily made and whether it was the result of ineffective 

assistance of counsel.4 In a postconviction proceeding brought 

by a defendant convicted because of a guilty plea or a plea of 

no contest, a court will consider an allegation that the plea was 

the result of ineffective assistance of counsel.5

In addressing the waiver issue, we noted that because Payne 

pled no contest, he “waived all of his claims except his 

claim that counsel was ineffective in advising him to plead 

no contest.”6 We then reversed the denial of his motion and 

remanded the cause for further proceedings on Payne’s claims 

that his no contest plea was the result of his trial counsels’ 

ineffective assistance.7

 The mandate issued accordingly and 

directed that judgment be entered “in conformity with the judgment and opinion of this court.”

Proceedings on 

On remand, the district court set the matter for evidentiary 

hearing. Payne’s postconviction counsel then filed a motion 

asking the trial court to determine the “nature and parameters” 

2 See, State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015); State v. 

Robinson, 285 Neb. 394, 827 N.W.2d 292 (2013).

3 See, State v. Lee, 290 Neb. 601, 861 N.W.2d 393 (2015); State v. Amaya, 

276 Neb. 818, 758 N.W.2d 22 (2008).

4 See State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008).

5 Id.

6 State v. Payne, supra note 1, 289 Neb. at 470, 855 N.W.2d at 786.

7 State v. Payne, supra note 1.
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of the issues to be addressed at the evidentiary hearing. 

Payne’s motion generally requested an evidentiary hearing on 

all five of his claims that his plea of no contest was the result 

of his trial counsels’ ineffective assistance.

The district court issued an order finding that, based on its 

review of this court’s opinion, the “sole” issue for evidentiary 

hearing was whether Payne’s trial counsel was ineffective for 

failing to file a direct appeal. The court reasoned:

After review of the [Supreme Court’s opinion], the 

Court is of the opinion the issue that first must be 

decided is whether the failure of trial Counsel to file a 

Direct Appeal is grounds to determine that Counsel was 

incompetent and failed to meet the standard of care as 

an attorney.

This being said, it is the opinion of this Court this is 

the sole issue to be determined at the hearing.

Payne timely appealed from the district court’s order. We 

moved the appeal to our docket on our own motion.8

ASSIGNMENTS OF ERROR

Payne assigns, restated and renumbered, that the trial court 

erred in (1) finding the evidentiary hearing was limited to the 

issue of whether trial counsel was ineffective in failing to file 

a direct appeal and (2) failing to hold an evidentiary hearing 

on the issue of whether Payne’s no contest plea was the result 

of his trial counsels’ ineffective assistance.

STANDARD OF REVIEW

[1] A jurisdictional issue that does not involve a factual dispute presents a question of law.9

[2] The construction of a mandate issued by an appellate 

court presents a question of law, on which an appellate court 

8 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).

9 Karo v. NAU Country Ins. Co., 297 Neb. 798, 901 N.W.2d 689 (2017). 

See, State v. Harris, 292 Neb. 186, 871 N.W.2d 762 (2015); State v. 

Meints, 291 Neb. 869, 869 N.W.2d 343 (2015).
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is obligated to reach a conclusion independent of the determination reached by the court below.10

ANALYSIS

[3] Before reaching the legal issues presented for review, 

it is the power and duty of an appellate court to determine 

whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties.11

[4] We have consistently held that an order granting an evidentiary hearing on some issues and denying a hearing on others is a final order as to the claims denied without a hearing.12

Because Payne has appealed the district court’s order limiting 

the evidentiary hearing to a single issue and implicitly denying 

an evidentiary hearing on all other issues, we conclude he has 

appealed from a final, appealable order.

[5] Payne appeals from the district court’s order interpreting 

the scope of this court’s mandate following the first appeal. 

The construction of a mandate issued by an appellate court 

presents a question of law.13 Where, as here, the mandate 

makes the opinion of the court a part thereof by reference, the 

opinion should be examined in conjunction with the mandate to 

determine the nature and terms of the judgment to be entered 

or the action to be taken thereon.14

[6-9] A district court has an unqualified duty to follow the 

mandate issued by an appellate court and must enter judgment 

in conformity with the opinion and judgment of the appellate 

court.15 A lower court may not modify a judgment directed 

10 Klingelhoefer v. Monif, 286 Neb. 675, 839 N.W.2d 247 (2013).

11 Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 

(2017).

12 State v. Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014); State v. YosChiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).

13 Klingelhoefer v. Monif, supra note 10.

14 Pursley v. Pursley, 261 Neb. 478, 623 N.W.2d 651 (2001).

15 Klingelhoefer v. Monif, supra note 10.
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by an appellate court; nor may it engraft any provision on it 

or take any provision from it.16 No judgment or order different 

from, or in addition to, the appellate mandate can have any 

effect.17 Because a trial court is without power to affect rights 

and duties outside the scope of the remand from an appellate 

court, any order attempting to do so is entered without jurisdiction and is void.18

We conclude the order entered by the district court on 

remand is void, because it attempted to affect rights and duties 

outside the scope of remand. The district court interpreted our 

mandate to require an evidentiary hearing on whether Payne’s 

trial counsel provided ineffective assistance by failing to file a 

direct appeal. But Payne never alleged such a claim, and our 

opinion did not direct the district court to hold an evidentiary 

hearing on such a claim. To the contrary, our opinion in State 

v. Payne19 held that the failure to file a direct appeal did not 

procedurally bar the “only remaining issue” that Payne’s no 

contest plea was the result of his trial counsels’ ineffective 

assistance, and the cause was remanded for an evidentiary 

hearing on that issue.

In a postconviction proceeding brought by a defendant 

convicted because of a guilty plea or a plea of no contest, a 

court will consider an allegation that the plea was the result 

of ineffective assistance of counsel.20 Thus, Payne argues that 

on remand, he was entitled to an evidentiary hearing on his 

claims that his no contest plea was the result of his trial counsels’ ineffective assistance. We observe that Payne’s operative 

postconviction motion alleged five ways that the ineffective 

assistance of his trial counsel resulted in his accepting the plea 

offer instead of insisting on a trial. The State, both in its brief 

16 See id.

17 Id.

18 See State v. Shelly, 279 Neb. 728, 782 N.W.2d 12 (2010).

19 State v. Payne, supra note 1, 289 Neb. at 471, 855 N.W.2d at 786.

20 Id., citing State v. Bazer, supra note 4.
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and at oral argument before this court, generally agreed that 

under the mandate from Payne, Payne is entitled to an evidentiary hearing on each of those five claims.

By limiting the evidentiary hearing to whether trial counsel was ineffective in not filing a direct appeal, the district 

court’s order following remand exceeded the scope of our 

mandate. Because the district court was without power to 

affect rights and duties outside the scope of the remand, the 

district court’s order exceeded its jurisdiction, was void, and 

must be vacated.21

CONCLUSION

For these reasons, we vacate the district court’s order 

regarding the scope of the evidentiary hearing and we remand 

the cause with directions that an evidentiary hearing be held 

on Payne’s claims that his no contest plea was the result of his 

trial counsels’ ineffective assistance.

 Order vacated, and cause re

with directio

Wright, J., not participating in the decision.

21 See, State v. Shelly, supra note 18; Pursley v. Pursley, supra note 14.