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Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. WASHINGTON

Cite as 301 Neb. 420

State of Nebraska, appellee, v.

Rashad Washington, appell

___ N.W.2d ___

Filed October 26, 2018. Nos. S-17-1002, S-17-1026.

1. 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.

2. Courts: Appeal and Error. The order of an appellate court is conclusive on the parties, and no judgment or order different from, or in 

addition to, that directed by the appellate court can be entered by the 

trial court.

Appeals from the District Court for Douglas County: Pete

C. Bataillon, Judge. Affirme

Brian S. Munnelly for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

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

Papik, JJ

Heavican, C

INTRODUCTION

Rashad Washington appeals from the district court’s denial 

of his motion to vacate and the subsequent reinstatement of 

sentences originally ordered on April 18, 2011. Washington 

appeals. We affirm.

Nebraska Supreme Court Online Library

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

10/26/2018 10:12 AM CDT
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301 Nebraska Report

STATE v. WASHINGTON

Cite as 301 Neb. 420

BACKGROUND

This case is procedurally complex. Following a jury trial, 

Washington was convicted of nine counts for first degree 

assault; second degree assault; possession of a firearm by a 

prohibited person; discharging a firearm in certain cities, villages, and counties; three counts of use of a weapon to commit 

a felony; possession of a firearm by a prohibited person; and 

possession of a stolen firearm. These charges result from separate incidents occurring on March 17 and 27, 2010.

On April 18, 2011, the district court sentenced Washington 

to a combined total of 70 to 110 years’ imprisonment. The 

district court then informed Washington, incorrectly, that he 

would be eligible for parole in 35 years, less the 387 days 

already served, and released in 55 years, less the 387 days 

already served. Two days later, on April 20, the district court 

attempted to resentence Washington to reflect the court’s intent 

that Washington would be eligible for parole in a certain number of years or be released in a certain number of years.

Washington appealed, but on June 19, 2011, in case No. 

A-11-402, his appeal was dismissed by the Nebraska Court of 

Appeals for lack of jurisdiction, because a poverty affidavit 

had not been filed.

The State filed a petition to docket error proceedings, 

which was granted. In its petition, the State argued that the 

April 20, 2011, attempt to resentence Washington was of 

no effect. The Court of Appeals agreed and on February 27, 

2012, in case No. A-11-416, held that the April 18 sentence 

remained in effect, but the court remanded the matter for a 

new advisement on good time calculations. The district court 

held a hearing to that effect on May 1, 2012, with a written 

order following on May 3.

By this time, Washington was represented by new counsel. 

That counsel filed a notice of appeal on Washington’s behalf, 

arguing insufficiency of the evidence, excessiveness of the 

sentences imposed, and ineffectiveness of counsel at the April 
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STATE v. WASHINGTON

Cite as 301 Neb. 420

18, 2011, sentencing hearing.1 The Court of Appeals declined 

to reach the assigned errors, but found plain error in the 

sentences imposed based upon this court’s decision in State 

v. Castillas.

2

The Court of Appeals relied upon our statement in Castillas 

that “‘[m]andatory minimum sentences cannot be served concurrently. A defendant convicted of multiple counts each carrying a mandatory minimum sentence must serve the sentence 

on each count consecutively,’” to conclude that the district 

court’s imposition of concurrent sentences for the second 

degree assault and discharging a firearm convictions were 

error.3 Accordingly, the Court of Appeals remanded the matter for resentencing on those convictions, with recalculated 

good time advisements. Washington was so resentenced on 

September 30, 2013, with a written order filed on October 1.

In January 2014, Washington filed various motions seeking 

postconviction relief in the form of a new direct appeal and the 

appointment of counsel for that appeal. Those motions were 

granted, an evidentiary hearing was held, and a new direct 

appeal granted.

In an unpublished memorandum opinion dated December 

29, 2016, in consolidated cases Nos. A-15-317 and A-15-323, 

the Court of Appeals affirmed Washington’s convictions, 

but based on this court’s clarification of Castillas,

4

 reversed 

and vacated the sentences imposed by the district court on 

September 30, 2013. The Court of Appeals further ordered 

that the district court reinstate the sentences imposed on April 

18, 2011.

1 State v. Washington, No. A-12-470, 2013 WL 2326983 (Neb. App. May 

28, 2013) (selected for posting to court website).

2 State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), disapproved in 

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

3 State v. Washington, supra note 1, 2013 WL 2326983 at *3.

4 See State v. Lantz, supra note 2.
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The Court of Appeals also found that all but two of 

Washington’s ineffective assistance of counsel claims were 

without merit, except for Washington’s claim that counsel 

failed to preserve a constitutional challenge to Neb. Rev. Stat. 

§ 28-1212.04 (Reissue 2016) and that counsel failed to fully 

discuss and advise Washington concerning each count of the 

information and amended information. As to those two claims, 

the Court of Appeals found an insufficient record. Washington’s 

motion for rehearing to the Court of Appeals and petition for 

further review to this court were both denied.

Upon remand, Washington filed a motion to vacate his 

conviction for discharge of a firearm in certain cities, villages, and counties under § 28-1212.04, arguing the statute 

is unconstitutional on its face. Washington requested that the 

motion to vacate be taken up before the court reinstated the 

sentences as directed by the mandate. The district court concluded that it lacked jurisdiction to do anything other than 

reinstate the sentences imposed on April 18. Accordingly, 

the district court denied the motion to vacate and reinstated 

the April 18 sentences. Washington appeals the denial of his 

motion to vacate.

ASSIGNMENTS OF ERROR

On appeal, Washington assigns that (1) § 28-1212.04 

is facially unconstitutional, as violative of the prohibition 

against local and special laws as stated in Neb. Const. art. III, 

§ 18, and the Equal Protection Clause of the 14th Amendment 

to the U.S. Constitution, and (2) the district court’s failure to consider the merits of the federal equal protection 

challenge on the basis of state procedural grounds violated 

the Supremacy Clause of article VI, clause 2, of the U.S. 

Constitution.

STANDARD OF REVIEW

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

court presents a question of law on which an appellate court 
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Cite as 301 Neb. 420

is obligated to reach a conclusion independent of the determination reached by the court below.5

ANALYSIS

The issue presented by this appeal is whether the district 

court was obligated to consider the constitutional claim raised 

by Washington in his motion to vacate, when that motion was 

filed after remand from a decision of the Court of Appeals 

which ordered the district court to resentence Washington in a 

particular way. The district court declined to reach the motion, 

concluding that the mandate from the Court of Appeals allowed 

it only to resentence Washington. But Washington contends that 

the federal constitutional challenge trumps the state procedural 

rules under the Supremacy Clause of the U.S. Constitution, 

requiring the district court to address his claim.

We have reviewed the cases upon which Washington relies 

and find them inapplicable here. Washington primarily relies 

upon cases which involve the collateral review of a statute 

already found to be unconstitutional and simply hold that 

the sentence imposed for such a violation is void.6 But the 

statute which Washington argues is unconstitutional has not 

yet been found to be unconstitutional, and the cases he relies 

upon do not opine on the underlying procedure that should be 

followed in making such a determination. We are therefore 

unpersuaded by Washington’s assertion that the lower court 

was obligated under the Supremacy Clause to address his constitutional claims.

[2] This court has held that when a cause is remanded with 

specific directions, the court to which the mandate is directed 

has no power to do anything but to obey the mandate. The 

5 State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017).

6 See, Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193 L. Ed. 

2d 599 (2016); MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013); State 

v. Nollen, 296 Neb. 94, 892 N.W.2d 81 (2017); State v. Castaneda, 287 

Neb. 289, 842 N.W.2d 740 (2014).
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Cite as 301 Neb. 420

order of an appellate court is conclusive on the parties, and no 

judgment or order different from, or in addition to, that directed 

by the appellate court can be entered by the trial court.7 Thus, 

pursuant to the mandate of the Court of Appeals, the district 

court had the power only to resentence Washington. There is 

no merit to Washington’s assertions to the contrary.

CONCLUSION

The district court did not err by not addressing Washington’s 

constitutional challenge. We affirm.

Affirmed

Cassel and Freudenberg, JJ., not participatin

7 State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006); State v. Gales, 269 

Neb. 443, 694 N.W.2d 124 (2005); State v. Hochstein and Anderson, 262 

Neb. 311, 632 N.W.2d 273 (2001).