                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                     STATE V. WASHINGTON


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                               STATE OF NEBRASKA, APPELLEE,
                                            V.
                              RASHAD WASHINGTON, APPELLANT.


                              Filed May 28, 2013.    No. A-12-470.


       Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge.
Affirmed in part, and in part vacated and remanded for resentencing.
       Daniel R. Stockmann, of Dunn & Stockmann, for appellant.
       Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.


       INBODY, Chief Judge, and IRWIN and MOORE, Judges.
       INBODY, Chief Judge.
                                       INTRODUCTION
       Following a remand for proper advisement of good time calculations, Rashad
Washington now appeals his convictions and sentences, arguing that there was insufficient
evidence to support his convictions, that the sentences imposed were excessive, and that he
received ineffective assistance of counsel at his original sentencing hearing.
                               PROCEDURAL BACKGROUND
       In 2011, a jury found Washington guilty of first degree assault, three counts of use of a
deadly weapon to commit a felony, second degree assault, possession of a deadly weapon by a
prohibited person, and discharging a firearm in certain cities, villages, and counties. Washington
attempted to appeal, and the appeal was docketed in our court at case No. A-11-299; however,
Washington had appealed before his sentences were imposed and moved to dismiss his appeal,
which request was granted. On April 18, 2011, the district court sentenced Washington to a total




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sentence of 70 to 110 years’ imprisonment with credit for 387 days served; however, several
days later, the court attempted to modify the sentences.
        Washington filed a direct appeal of his convictions and sentences, which was docketed in
our court at case No. A-11-402. Washington’s direct appeal was dismissed by this court for lack
of jurisdiction, because he failed to file a proper poverty affidavit. The State also appealed, filing
an application to docket error proceedings on the basis that the district court’s attempted
modification of Washington’s sentences was of no effect because a valid sentence had been
imposed on April 18, 2011. The State’s application to docket error proceedings was granted, and
the case was docketed in this court at case No. A-11-416. Washington filed an appellee’s brief in
case No. A-11-416, but did not file a cross-appeal. This court entered an order to show cause
why the appeal should not be summarily reversed and remanded. The State filed a reply to the
show cause order, and thereafter, an order was entered by this court summarily reversing the
judgment and remanding the cause. This court found that the district court’s attempt at
resentencing on April 20 was null and void and the sentence imposed on April 18 remained in
effect; however, the cause was remanded for proper advisement of good time calculations. In
each of the three aforementioned appeals, cases Nos. A-11-299, A-11-402, and A-11-416,
Washington was represented by the same counsel that represented him at trial and sentencing.
        Upon remand, a hearing was held on May 1, 2012, at which the district court advised
Washington that the original sentences imposed on April 18, 2011, were the sentences which he
would be serving, which are as follows:
        Count               Offense                            Felony             Sentence
        Count I             First Degree Assault               Class II           30-50 years
        Count II            Use of a Weapon                    Class IC           30-50 years
        Count III           Second Degree Assault              Class III          3-5 years
        Count IV            Use of a Weapon                    Class IC           5-5 years
        Count VII           Possession by a Felon              Class ID           5-5 years
        Count VIII          Discharging Firearm                Class IC           5-5 years
        Count IX            Use of a Weapon                    Class IC           5-5 years
Counts II, IV, and IX were ordered to run consecutively to all counts and to each other, and all
other counts were ordered to run concurrently. The district court informed Washington that
assuming no loss of good time, he would be eligible for parole in 45 years and eligible for
discharge in 55 years. Washington has timely appealed to this court and, for the first time, is
represented by new appellate counsel.
                                   ASSIGNMENTS OF ERROR
       Washington contends that there was insufficient evidence to support his convictions, that
the sentences imposed were excessive, and that he received ineffective assistance of counsel at
the April 18, 2011, sentencing hearing.
                                            ANALYSIS
        Before addressing Washington’s assigned errors, we first address the State’s argument
that the only issue that is properly before this court in this appeal is the district court’s good time
calculation and advisement upon remand.


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         After receiving a mandate, a trial court is without power to affect the rights and duties
outside the scope of the remand from an appellate court. State v. Shelly, 279 Neb. 728, 782
N.W.2d 12 (2010). When a matter is remanded, only issues sent back in the mandate may be
considered by an appellate court on appeal. See, Dietz v. Yellow Freight Systems, Inc., 269 Neb.
990, 697 N.W.2d 693 (2005) (when review panel remanded matter to Workers’ Compensation
Court solely for determination of attorney fees, award of attorney fees was only issue which
could be considered by Supreme Court on appeal after remand); State v. Gales, 269 Neb. 443,
694 N.W.2d 124 (2005) (allegations raised by defendant which were beyond scope of district
court’s jurisdiction pursuant to mandate were inappropriate for appellate court to address on
appeal).
         Following our finding that the district court’s attempt at resentencing was null and void
and that the earlier pronounced sentences remained in effect, we remanded the cause to the
district court on the sole issue of the proper advisement of good time calculations; therefore, the
errors assigned by Washington are not properly before this court and cannot be considered. The
only issue that can be considered by this court in this appeal following the remand is the good
time calculation advisement given by the court. However, this court always reserves the right to
note plain error.
         An appellate court always reserves the right to note plain error which was not complained
of at trial or on appeal. State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012); State v. Hilding,
278 Neb. 115, 769 N.W.2d 326 (2009). Consideration of plain error occurs at the discretion of an
appellate court. State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012); State v. Howell, 284
Neb. 559, 822 N.W.2d 391 (2012). Plain error exists where there is an error, plainly evident from
the record but not complained of at trial, which prejudicially affects a substantial right of a
litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or
result in damage to the integrity, reputation, and fairness of the judicial process. State v.
Reinpold, 284 Neb. 950, 824 N.W.2d 713 (2013).
         A court is required to sentence a defendant to consecutive terms for each conviction
carrying a mandatory minimum term. State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013).
“Mandatory 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.” Id. at 191, 826 N.W.2d at 268.
         In the instant case, five of Washington’s sentences carried mandatory minimum
sentences: count II, use of a weapon; count IV, use of a weapon; count VII, possession by a
felon; count VIII, discharge of a firearm; and count IX, use of a weapon. Of the sentences
imposed for these convictions which carried mandatory minimum sentences, the count ordered
two of the sentences, counts III and VIII, to run concurrently to the other sentences imposed.
Pursuant to the Nebraska Supreme Court’s holding in Castillas, supra, any conviction carrying a
mandatory minimum sentence must be ordered to be served consecutively. Thus, we must
remand the cause with directions that the district court resentence Washington to consecutive
sentences on counts III and VIII. See, State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006)
(appellate court has power on direct appeal to remand cause for imposition of lawful sentence
where erroneous one has been pronounced); State v. Wilson, 16 Neb. App. 878, 754 N.W.2d 780
(2008).


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                                        CONCLUSION
        With the exception of counts III and VIII, Washington’s sentences are affirmed. As to
those sentences, we find that the sentences themselves are within the statutory sentencing range;
however, the district court erred in ordering the sentences to be served concurrently because
offenses with mandatory minimum sentences must be served consecutively. Therefore, we
vacate the portion of Washington’s sentences on counts III and VIII where the court ordered the
sentences to run concurrently and remand the cause with directions for the court to order the
sentences to be served consecutively. Additionally, upon remand, the district court will also need
to recalculate and advise Washington of his good time calculations.
                                                       AFFIRMED IN PART, AND IN PART VACATED
                                                       AND REMANDED FOR RESENTENCING.




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