Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/02/2018 08:17 AM CST




                                                         - 373 -
                                  Nebraska Supreme Court A dvance Sheets
                                          298 Nebraska R eports
                                                    STATE v. PAYNE
                                                   Cite as 298 Neb. 373




                                         State of Nebraska, appellee, v.
                                        Christopher M. Payne, appellant.
                                                     ___ 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 pre-
                     sented for review, it is the power and duty of an appellate court to deter-
                     mine 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 unquali-
                     fied 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
                                    - 374 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                               STATE v. PAYNE
                              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, Stacy,
K elch, and Funke, JJ.
   Stacy, J.
   This is Christopher M. Payne’s second appeal from post-
conviction 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).
                              - 375 -
           Nebraska Supreme Court A dvance Sheets
                   298 Nebraska R eports
                         STATE v. PAYNE
                        Cite as 298 Neb. 373

trial counsel had not withdrawn and was still engaged as coun-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

                     Postconviction Motion
   On August 24, 2012, Payne filed a verified motion for post-
conviction 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 abate-
ment or motion to quash to challenge the State’s failure to pro-
vide 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 allega-
tions of ineffective assistance of trial counsel were procedur-
ally barred because he had not filed a direct appeal. Payne
timely appealed.

                          First A ppeal
   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
                                     - 376 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                                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 lim-
ited 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 judg-
ment and opinion of this court.”

                    Proceedings on R emand
  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.
                                   - 377 -
               Nebraska Supreme Court A dvance Sheets
                       298 Nebraska R eports
                              STATE v. PAYNE
                             Cite as 298 Neb. 373

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 dis-
pute 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).
                                    - 378 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                               STATE v. PAYNE
                              Cite as 298 Neb. 373

is obligated to reach a conclusion independent of the determi-
nation 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, irrespec-
tive of whether the issue is raised by the parties.11
   [4] We have consistently held that an order granting an evi-
dentiary hearing on some issues and denying a hearing on oth-
ers 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. Yos-
      Chiguil, 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.
                                     - 379 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                                STATE v. PAYNE
                               Cite as 298 Neb. 373

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 juris-
diction 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 coun-
sels’ 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.
                                       - 380 -
                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                                 STATE v. PAYNE
                                Cite as 298 Neb. 373

and at oral argument before this court, generally agreed that
under the mandate from Payne, Payne is entitled to an eviden-
tiary hearing on each of those five claims.
   By limiting the evidentiary hearing to whether trial coun-
sel 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 remanded
	                         with directions.
   Wright, J., not participating in the decision.

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