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04/07/2016 12:10 PM CDT




                                                       - 761 -
                               Decisions of the Nebraska Court of A ppeals
                                     23 Nebraska A ppellate R eports
                                               STATE v. NEWCOMER
                                               Cite as 23 Neb. App. 761




                                        State of Nebraska, appellee, v.
                                        James R. Newcomer, appellant.
                                                   ___ N.W.2d ___

                                         Filed March 8, 2016.    No. A-15-790.

                1.	 Constitutional Law: Criminal Law. The Excessive Fines Clause limits
                     those fines directly imposed by, and payable to, the government, and
                     provides that no excessive fines shall be imposed.
                2.	 Pleas: Waiver. The voluntary entry of a guilty plea or a plea of no con-
                     test waives every defense to a charge, whether the defense is procedural,
                     statutory, or constitutional.
                3.	 Constitutional Law: Criminal Law. The Eighth Amendment to the
                     U.S. Constitution and article I, section 9, of the Nebraska Constitution
                     prohibit the imposition of excessive fines.
                 4.	 ____: ____. The purpose of the Excessive Fines Clause is to limit the
                     government’s power to extract payments, whether in cash or in kind, as
                     punishment for some offense.
                 5.	 ____: ____. A criminal forfeiture is a form of monetary punishment no
                     different, for Eighth Amendment purposes, than a traditional fine.
                 6.	 ____: ____. In determining whether a fine is so excessive as to violate
                     the Excessive Fines Clause, the test is whether the penalty is grossly
                     disproportional to the gravity of the defendant’s offense.
                7.	 Constitutional Law: Criminal Law: Proof. The party claiming that
                     a fine violates the Excessive Fines Clause must first make a prima
                     facie showing of gross disproportionality, and if the claimant does so,
                     the court then considers whether the disproportionality reaches such
                     a level of excessiveness that the punishment is more criminal than
                     the crime.
                8.	 Criminal Law. The gravity of an offense can be considered more seri-
                     ous when the defendant has previously committed the same act.
                9.	 Sentences: Legislature. Judgments about the appropriate punishment
                     for an offense belong in the first instance to the Legislature.
                                   - 762 -
           Decisions of the Nebraska Court of A ppeals
                 23 Nebraska A ppellate R eports
                           STATE v. NEWCOMER
                           Cite as 23 Neb. App. 761

10.	 Criminal Law: Affidavits: Time. A defendant in a criminal case must
     file an application to proceed in forma pauperis within 30 days after the
     entry of judgment, order, or sentence.
11.	 ____: ____: ____. The relevant date under Neb. Rev. Stat. § 29-2306
     (Reissue 2008) is the date the defendant files the application to pro-
     ceed in forma pauperis, not the date on which the court grants the
     application.

   Appeal from the District Court for Sarpy County: David K.
A rterburn, Judge. Affirmed.

  Patrick J. Boylan, Chief Deputy Sarpy County Public
Defender, for appellant.

   Douglas J. Peterson, Attorney General, and George R. Love
for appellee.

   Pirtle, R iedmann, and Bishop, Judges.

   R iedmann, Judge.
                      INTRODUCTION
    James R. Newcomer appeals from his conviction in the
district court of Sarpy County of forgery of a certificate of
title. On appeal, he challenges the fine he received as part of
his sentence and the rejection of his initial poverty affidavit
attached to his motion to proceed in forma pauperis. Finding
no merit to his claims, we affirm.

                         BACKGROUND
   Newcomer was initially charged with four counts of forgery
of a certificate of title, a Class IV felony. Pursuant to a plea
agreement with the State, Newcomer pled no contest to one
count and the State dismissed the remaining three counts.
   According to the factual basis provided by the State at the
plea hearing, on November 3, 2014, police officers located
three vehicles parked outside of Newcomer’s residence, all of
which had fictitious license plates. Newcomer admitted to the
officers that the vehicles were his and that he had placed the
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         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                      STATE v. NEWCOMER
                      Cite as 23 Neb. App. 761

license plates on the vehicles. Through investigation, police
determined that Newcomer had purchased 12 vehicles in 2014
and titled them under his own name, his girlfriend’s name, and
his two daughters’ names. With respect to four of the vehicles,
police confirmed that the bills of sale submitted to the Sarpy
County Department of Motor Vehicles for title processing
were forged. The true sales prices of the vehicles were $450,
$500, $800, and $600.
   The court accepted Newcomer’s plea and found him guilty.
On August 3, 2015, Newcomer received a sentence of 60 days
in jail and a $10,000 fine.
   On August 27, 2015, Newcomer filed a notice of appeal, a
motion to proceed in forma pauperis, and a poverty affidavit.
The court found that the poverty affidavit was insufficient and
allowed Newcomer to submit a new affidavit which fully set
forth his income and assets. Newcomer did so on September
1, and his motion to proceed in forma pauperis was granted 2
days later. His appeal is now before this court.

                  ASSIGNMENTS OF ERROR
   Newcomer assigns that the district court erred in imposing a
grossly disproportionate fine for his crime and in denying his
first poverty affidavit in support of his application to proceed
in forma pauperis.

                           ANALYSIS
Excessive Fine.
   [1] Newcomer argues that the fine he received is exces-
sive and grossly disproportionate to the crime, in violation
of the Excessive Fines Clauses of the U.S. and Nebraska
Constitutions. The Excessive Fines Clause limits those fines
directly imposed by, and payable to, the government, and pro-
vides that no excessive fines shall be imposed. See, U.S. Const.
amend. VIII; Neb. Const. art. I, § 9; State v. Hynek, 263 Neb.
310, 640 N.W.2d 1 (2002). By arguing that the fine imposed
on him is excessive and unconstitutional, Newcomer is raising
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         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                       STATE v. NEWCOMER
                       Cite as 23 Neb. App. 761

an as-applied constitutional challenge. See State v. Harris, 284
Neb. 214, 817 N.W.2d 258 (2012).
   [2] The State recognizes that challenges to the constitu-
tionality of a statute as applied to a defendant are properly
preserved by a plea of not guilty and argues that because
Newcomer pled no contest to the charge, this claim has been
waived. See id. The State is correct that the voluntary entry of
a guilty plea or a plea of no contest “waives every defense to
a charge, whether the defense is procedural, statutory, or con-
stitutional.” See State v. Albrecht, 18 Neb. App. 402, 407, 790
N.W.2d 1, 6 (2010). But Newcomer’s constitutional challenge
is not a “defense to a charge”; rather, he now challenges the
sentence he received, claiming that it violates the constitutional
prohibition on excessive fines.
   In State v. Brand, 219 Neb. 402, 363 N.W.2d 516 (1985), the
defendant pled guilty to a sexual assault charge. On appeal, he
argued that, as applied in his particular case, his sentence was
so excessive that it violated the Cruel and Unusual Punishment
Clauses of the U.S. and Nebraska Constitutions. The Supreme
Court found that to the extent his argument could be directed
to the claim that the statute is unconstitutional by its terms,
such argument was waived. But the Supreme Court addressed
the constitutionality of the sentence as applied to the defendant
and determined that the sentence imposed passed constitu-
tional muster.
   Similarly here, Newcomer does not challenge the constitu-
tionality of the statute allowing a $10,000 fine to be imposed
for the conviction of forgery of a certificate of title. Instead,
he claims that imposing a $10,000 fine in this case was so
excessive as to be unconstitutional. This claim has not been
waived by his no contest plea, and therefore, we will address
its merits.
   [3,4] Both the Eighth Amendment to the U.S. Constitution
and article I, section 9, of the Nebraska Constitution pro-
hibit the imposition of “excessive fines.” The purpose of the
Excessive Fines Clause is to limit “the government’s power to
                               - 765 -
         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                       STATE v. NEWCOMER
                       Cite as 23 Neb. App. 761

extract payments, whether in cash or in kind, ‘as punishment
for some offense.’” Austin v. United States, 509 U.S. 602, 609-
10, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993).
   [5] There is little case law interpreting the Excessive Fines
Clause, particularly as it applies to criminal fines as opposed to
forfeitures. However, the U.S. Supreme Court has determined
that a criminal forfeiture is a form of monetary punishment no
different, for Eighth Amendment purposes, than a traditional
fine. See Alexander v. United States, 509 U.S. 544, 113 S. Ct.
2766, 125 L. Ed. 2d 441 (1993). Thus, criminal forfeiture cases
are instructive on analyzing whether a fine is unconstitution-
ally excessive.
   [6] In determining whether a fine is so excessive as to vio-
late the Excessive Fines Clause, the test is whether the penalty
is grossly disproportional to the gravity of the defendant’s
offense. See United States v. Bajakajian, 524 U.S. 321, 118 S.
Ct. 2028, 141 L. Ed. 2d 314 (1998).
   [7] The U.S. Supreme Court has expressly declined to
enunciate a test of gross disproportionality. See Austin v.
United States, supra. But the Eighth Circuit applies a two-
pronged approach that first requires the claimant to make a
prima facie showing of gross disproportionality. U.S. v. Dodge
Caravan Grand SE/Sport Van, 387 F.3d 758 (8th Cir. 2004).
If the claimant can make this showing, the court then con-
siders whether the disproportionality reaches such a level of
excessiveness that the punishment is more criminal than the
crime. Id.
   [8] In the present case, Newcomer argues that his fine is
excessive because it is disproportionate to the value of the
vehicles at issue. There is no requirement that the fine be
proportionate to the pecuniary value of the vehicles, however.
Rather, the fine must be proportionate to the gravity of the
offense. Newcomer was initially charged with four counts of
forgery of a certificate of title before he agreed to plead no
contest to one count. Thus, without the benefit of the plea
agreement, Newcomer faced a total of $40,000 in fines. In
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         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                       STATE v. NEWCOMER
                       Cite as 23 Neb. App. 761

addition, as the district court noted at sentencing, this was not
Newcomer’s first time committing this offense, and he does so
for the purpose of profit. Newcomer has an extensive history
of vehicle-related charges, including two counts of forged title
in 2001, for which he completed a diversion program, and four
counts of forged title in 2005, for which he received a $250
fine on each count. The gravity of an offense can be considered
more serious when the defendant has previously committed
the same act. See State v. Brand, 219 Neb. 402, 363 N.W.2d
516 (1985).
   [9] We further note that the U.S. Supreme Court has cau-
tioned that “judgments about the appropriate punishment for an
offense belong in the first instance to the legislature.” United
States v. Bajakajian, 524 U.S. at 336. Forgery of a certificate
of title is a Class IV felony, which carries a punishment of up
to 5 years’ imprisonment, a $10,000 fine, or both. See Neb.
Rev. Stat. §§ 60-179 (Reissue 2010) and 28-105 (Cum. Supp.
2014). The Legislature chose to make the crime of forgery of a
certificate of title a felony offense, punishable by a maximum
fine of $10,000. Thus, although the fine imposed on Newcomer
is the maximum allowed by statute, it falls within the statutory
limits set by the Legislature.
   When considering the gravity of the offense, including
Newcomer’s history, number of current offenses, and motiva-
tion for the crimes, we find that Newcomer has failed to make
a prima facie showing that the fine is grossly disproportionate
to the offense committed. Accordingly, the fine imposed does
not constitute an unconstitutionally excessive fine.

Poverty Affidavit.
   Out of an “abundance of caution,” Newcomer also assigns
that the district court erred in denying his initial poverty affi-
davit filed in support of his motion to appeal in forma pauperis.
Brief for appellant at 9. We need not address this claim because
the notice of appeal, application to proceed in forma pauperis,
and poverty affidavit were filed timely.
                              - 767 -
         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                      STATE v. NEWCOMER
                      Cite as 23 Neb. App. 761

   [10,11] Under Neb. Rev. Stat. § 29-2306 (Reissue 2008), a
defendant in a criminal case must file an application to pro-
ceed in forma pauperis within 30 days after the entry of judg-
ment, order, or sentence. The relevant date under § 29-2306
is the date the defendant files the application, not the date on
which the court grants the application. State v. Harms, 263
Neb. 814, 643 N.W.2d 359 (2002). Here, even though the
district court rejected Newcomer’s initial poverty affidavit,
Newcomer filed a replacement affidavit within 30 days after
the sentencing order was filed. Therefore, the requirements of
§ 29-2306 were satisfied, and this court has jurisdiction over
the appeal.

                        CONCLUSION
   We find no merit to the arguments raised on appeal. We
therefore affirm the conviction and sentence.
                                               A ffirmed.
