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05/01/2020 01:07 AM CDT




                                                         - 409 -
                               Nebraska Supreme Court Advance Sheets
                                        305 Nebraska Reports
                                                  STATE v. KELLEY
                                                  Cite as 305 Neb. 409




                                        State of Nebraska, appellee, v.
                                        William T. Kelley, appellant.
                                                    ___ N.W.2d ___

                                          Filed March 27, 2020.    No. S-19-227.

                 1. Judgments: Jurisdiction: Appeal and Error. Determination of a juris-
                    dictional issue which does not involve a factual dispute is a matter of
                    law, which requires an appellate court to reach its conclusions indepen-
                    dent from those of a trial court.
                 2. Jurisdiction: Appeal and Error. Before reaching the merits of the
                    issues presented for review, it is an appellate court’s duty to determine
                    whether it has jurisdiction to decide them.
                 3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
                    to acquire jurisdiction of an appeal, there must be a final order or final
                    judgment entered by the court from which the appeal is taken.
                 4. Criminal Law: Judgments: Sentences: Appeal and Error. In a crimi-
                    nal case, the judgment from which the appellant may appeal is the
                    sentence.
                 5. Double Jeopardy: Pleadings: Final Orders. Under Neb. Rev. Stat.
                    § 25-1902 (Reissue 2016), a plea in bar is a “special proceeding,” and
                    an order overruling a nonfrivolous double jeopardy claim affects a sub-
                    stantial right.
                 6. Double Jeopardy. The Double Jeopardy Clause protects against three
                    distinct abuses: (1) a second prosecution for the same offense after
                    acquittal, (2) a second prosecution for the same offense after conviction,
                    and (3) multiple punishments for the same offense.
                 7. Double Jeopardy: Juries: Evidence: Pleas. In Nebraska, jeopardy
                    attaches (1) in a case tried to a jury, when the jury is impaneled and
                    sworn; (2) when a judge, hearing a case without a jury, begins to hear
                    evidence as to the guilt of the defendant; or (3) at the time the trial court
                    accepts the defendant’s guilty plea.

                 Appeal from the District Court for Gage County: Vicky L.
               Johnson, Judge. Appeal dismissed.
                             - 410 -
         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                       STATE v. KELLEY
                       Cite as 305 Neb. 409

  Timothy S. Noerrlinger for appellant.
  Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
   Papik, J.
   William T. Kelley appeals the denial of his plea in bar,
in which he claimed that charges that he committed sexual
assaults should be barred because the State agreed not to pros-
ecute him for those charges in a prior plea agreement. Kelley’s
plea in bar did not, however, present a colorable double jeop-
ardy claim. Accordingly, we lack appellate jurisdiction and
have no choice but to dismiss the appeal.
                       BACKGROUND
   In August 2018, Kelley was charged by information with
one count of first degree sexual assault and one count of
third degree sexual assault of a child. Kelley was alleged to
have committed the first degree sexual assault between June
1, 2007, and January 11, 2008. Kelley was alleged to have
committed the third degree sexual assault of a child between
September 1, 2007, and January 12, 2008. The victim of both
crimes was alleged to be T.K.
   Kelley filed a plea in bar. In the plea in bar, he asserted
that in March 2009, he entered guilty pleas to multiple crimi-
nal charges in two different criminal cases. Kelley claimed
that he pleaded guilty to those charges as part of an agree-
ment in which the State agreed not to bring any charges
alleging that he sexually assaulted T.K. Kelley contended
that by filing criminal charges it had previously agreed not
to bring, the State was violating rights guaranteed to him by
the Double Jeopardy Clauses of the federal and the Nebraska
Constitutions.
   The district court held a hearing on Kelley’s plea in bar.
The evidence introduced at the hearing showed that in 2009,
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          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
                         STATE v. KELLEY
                         Cite as 305 Neb. 409

after Kelley had been charged with multiple crimes in two
different criminal cases, Kelley and the State entered into a
written plea agreement. Pursuant to that agreement, Kelley
pleaded guilty to various offenses, the court accepted his
pleas, and he was found guilty and sentenced accordingly.
The written plea agreement did not include a promise by the
State not to prosecute Kelley for alleged assaults on T.K. It
also included a clause that stated, “[t]he parties to this plea
agreement state and acknowledge that this document contains
all of the promises, agreements, and understandings between
the parties.”
   Despite the absence of any indication in the written plea
agreement that the State was agreeing not to charge Kelley
with any charges pertaining to T.K., Kelley claimed that was,
in fact, part of the agreement. In support of that argument,
Kelley called his attorney in the prior criminal cases as a wit-
ness. That attorney testified that an agreement not to prosecute
Kelley for alleged assaults on T.K. was part of the agreement
he reached with the prosecutor and that Kelley’s counsel
had inadvertently omitted it from the written plea agreement.
Kelley also testified and asserted that the “only reason” he
agreed to the plea agreement was the State’s agreement not to
prosecute him for assaults on T.K. The prosecutor in the prior
criminal cases, however, testified that an agreement not to
prosecute Kelley for alleged assaults on T.K. was not part of
the agreement.
   The district court overruled the plea in bar. Kelley appealed.
                  ASSIGNMENTS OF ERROR
   Kelley assigns two errors on appeal. He contends that the
district court erred by overruling his plea in bar. He also asserts
that he received ineffective assistance of counsel.
                   STANDARD OF REVIEW
   [1] Determination of a jurisdictional issue which does not
involve a factual dispute is a matter of law, which requires an
appellate court to reach its conclusions independent from those
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. KELLEY
                        Cite as 305 Neb. 409

of a trial court. Griffith v. Nebraska Dept. of Corr. Servs., 304
Neb. 287, 934 N.W.2d 169 (2019).
                           ANALYSIS
   [2] Before reaching the merits of the issues presented for
review, it is our duty to determine whether we have jurisdic-
tion to decide them. See Green v. Seiffert, 304 Neb. 212, 933
N.W.2d 590 (2019). As we will explain, after exercising that
duty here, we find that we do not have jurisdiction.
   [3,4] For an appellate court to acquire jurisdiction of an
appeal, there must be a final order or final judgment entered
by the court from which the appeal is taken. State v. Paulsen,
304 Neb. 21, 932 N.W.2d 849 (2019). In a criminal case, the
judgment from which the appellant may appeal is the sentence.
Id. Kelley has not been sentenced in this case, so we may only
exercise jurisdiction if he has appealed from a final order.
Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the four types
of final orders which may be reviewed on appeal are (1) an
order affecting a substantial right in an action that, in effect,
determines the action and prevents a judgment; (2) an order
affecting a substantial right made during a special proceeding;
(3) an order affecting a substantial right made on summary
application in an action after judgment is rendered; and (4)
an order denying a motion for summary judgment when such
motion is based on the assertion of sovereign immunity or the
immunity of a government official.
   [5] Kelley contends that our precedent recognizes that an
order overruling a plea in bar is a final order. We have held
that a plea in bar is a “special proceeding,” for purposes
of § 25-1902, and that an order overruling a nonfrivolous
double jeopardy claim affects a substantial right. See State v.
Williams, 278 Neb. 841, 774 N.W.2d 384 (2009). Based on
this reasoning, we have reviewed several cases in which the
trial court overruled a plea in bar, but the defendant presented
a colorable double jeopardy claim. See, e.g., State v. Huff,
279 Neb. 68, 70, 776 N.W.2d 498, 501 (2009) (“[appellant’s]
plea in bar raises a colorable double jeopardy claim, and we
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. KELLEY
                        Cite as 305 Neb. 409

therefore have jurisdiction over this interlocutory appeal”).
See, also, State v. Bedolla, 298 Neb. 736, 905 N.W.2d 629
(2018); State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017);
Williams, supra.
   In this case, however, we find that Kelley has not presented
such a claim. Kelley does assert that the State could not, con-
sistent with the Double Jeopardy Clauses of the federal and
Nebraska Constitutions, charge him with sexually assaulting
T.K. He claims that is the case because the State agreed in the
plea agreement not to do so. He has never, however, explained
why the State’s alleged breach of the plea agreement amounts
to a violation of double jeopardy.
   [6] Not only has Kelley not made an argument that the
Double Jeopardy Clauses preclude the State from charging
him with sexually assaulting T.K., we cannot conceive of a
colorable one. And that is true even if we assume that the
State agreed in the plea agreement not to bring charges against
Kelley alleging that he sexually assaulted T.K. The Double
Jeopardy Clause protects against three distinct abuses: (1) a
second prosecution for the same offense after acquittal, (2)
a second prosecution for the same offense after conviction,
and (3) multiple punishments for the same offense. State v.
Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019). Nothing in
our record indicates that Kelley has previously been acquitted,
convicted, or punished for sexually assaulting T.K.
   [7] Neither is there anything in our record indicating that
Kelley will be twice placed in jeopardy for sexually assault-
ing T.K. In Nebraska, jeopardy attaches (1) in a case tried to a
jury, when the jury is impaneled and sworn; (2) when a judge,
hearing a case without a jury, begins to hear evidence as to the
guilt of the defendant; or (3) at the time the trial court accepts
the defendant’s guilty plea. Id. As far as our record discloses,
prior to the filing of the information in this case, Kelley had
not ever been charged with sexually assaulting T.K. and pro-
ceedings had certainly not progressed to the point that jeopardy
had attached with respect to such charges.
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         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. KELLEY
                        Cite as 305 Neb. 409

   The fact that Kelley has assigned as error on appeal that he
received ineffective assistance of counsel does not change our
analysis. Kelley argues that his counsel in the prior criminal
cases provided ineffective assistance by failing to include lan-
guage in the written plea agreement that the State would not
bring charges against Kelley alleging that he sexually assaulted
T.K. We question whether a party can assert that counsel in a
prior criminal case was ineffective in the context of a plea in
bar, but even if that is set to the side and even if we assume
that Kelley’s ineffective assistance of counsel allegation has
merit, we see no basis to say that rights guaranteed to Kelley
by the Double Jeopardy Clauses have been violated.
   Our decision today should not be read to hold that a defend­
ant has no remedy if the State pursues charges it previously
agreed not to bring as part of a plea agreement. Indeed, we
have previously noted that “when the State breaches a plea
agreement, the defendant generally has the option of either
having the agreement specifically enforced or withdrawing his
or her plea.” State v. Smith, 295 Neb. 957, 972, 892 N.W.2d 52,
63 (2017). But as Kelley’s counsel acknowledged in oral argu-
ment, the only remedy he has pursued is a plea in bar based
on an alleged double jeopardy violation. Because Kelley has
not asserted a colorable double jeopardy claim, however, we
lack jurisdiction to decide anything else and are obligated to
dismiss the appeal.
                        CONCLUSION
   Because Kelley has not presented a colorable double jeop-
ardy claim, the order overruling his plea in bar was not a final,
appealable order. Accordingly, we dismiss the appeal for lack
of jurisdiction.
                                            Appeal dismissed.
   Freudenberg, J., not participating.
