                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                        STATE V. HAYNES


  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.
                                 JAMAR HAYNES, APPELLANT.


                           Filed January 28, 2014.    No. A-12-1149.


       Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.
       Jamar Haynes, pro se.
       Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.


       INBODY, Chief Judge, and MOORE and RIEDMANN, Judges.
       MOORE, Judge.
                                       INTRODUCTION
         Jamar Haynes appeals from an order of the district court for Lancaster County, which
overruled his motion to vacate and modify an order dismissing his motion for postconviction
relief. The basis of his motion to vacate and modify, and of this appeal, is his assertion that he
did not receive a copy of the order dismissing his postconviction motion and thus was prevented
from filing a timely appeal. The district court found that the evidence did not support Haynes’
assertion. Because we find no abuse of discretion in the denial of Haynes’ motion to vacate and
modify, we affirm.
                                        BACKGROUND
       Haynes was convicted in 2009 of two counts of terroristic threats, two counts of use of a
weapon to commit a felony, one count of felon in possession of a deadly weapon, and one count
of burglary. On direct appeal, Haynes asserted that the district court erred in denying his motion
to suppress, that the evidence was insufficient to find him guilty of the two use of a weapon
charges and the felon in possession charge, and that the court abused its discretion by including


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and considering a letter submitted by a police officer in the presentence report. This court
affirmed the convictions. See State v. Haynes, No. A-09-1305, 2011 WL 709693 (Neb. App.
Feb. 22, 2011) (selected for posting to court Web site).
         In June 2011, Haynes filed a motion for postconviction relief, asserting that his
constitutional rights were violated as follows: There was no probable cause for the search or
arrest; he was denied his request for an attorney at the outset of the illegal arrest; the evidence
was insufficient to support his convictions; there was prosecutorial misconduct at the opening
statement, during trial, and at closing arguments; allowing testimony of uncharged conduct was
allowed; and he was deprived of exculpatory evidence. Haynes also alleged that he received
ineffective assistance of trial and appellate counsel in failing to timely object, file pretrial
motions, file motions for mistrial or new trial, and perfect an appeal; inadequately investigating
and preparing for trial; failing to preserve record and issues for direct appeal; failing to secure
deposition of a witness; failing to secure all police reports and depose each and every individual;
and failing to disclose to Haynes exculpatory or Brady material pursuant to Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
         On January 10, 2012, the district court entered an order denying Haynes’ request for an
evidentiary hearing and denying his motion for postconviction relief, finding that Haynes’
allegations regarding the search and arrest, motion to suppress, and adequacy of the evidence
were all addressed in the direct appeal and were procedurally barred. The court further found that
Haynes’ allegations of ineffective assistance of counsel were conclusory and insufficient to merit
an evidentiary hearing or postconviction relief. The order directed the bailiff to mail copies of the
judgment to the State and Haynes. The order was signed by District Judge Robert R. Otte. No
appeal was taken from the January 2012 order.
         On September 24, 2012, Haynes filed a motion to vacate or modify the January 2012
order pursuant to Neb. Rev. Stat. § 25-2001 (Reissue 2008) and the court’s equity jurisdiction,
alleging that he did not receive a copy of the order and therefore was unaware of the necessity to
file a timely appeal. He asked the court to vacate the January 2012 order and give him proper
service of the judgment so that he could file an appeal.
         The district court heard Haynes’ motion on November 5, 2012. At the hearing, Haynes
offered exhibits to show that he contacted the district court in writing regarding the status of his
postconviction motion and that in September 2012, he was advised in a letter from the clerk that
an order had been entered on January 10, 2012, denying his motion. Haynes’ exhibits also
included copies of the prison mailroom procedures and the prison mail log showing that he did
not receive any “legal” mail in January 2012. The State called Haynes as a witness and
questioned him briefly to establish his inmate number and where he was housed in January 2012.
The State offered a copy of the order denying Haynes a postconviction evidentiary hearing which
directed the bailiff to send a copy to Haynes and the State. The State also called a records
employee with the Department of Correctional Services, Shannon Fredenburg, and offered
exhibit 161, a “confidential mail receipt form” dated January 12, 2012, documenting the delivery
of a letter from “Robert R. Otte, Lincoln” to Haynes. The form was signed and dated by Haynes
and also signed by Fredenburg as a witness. Fredenburg testified about the department’s mail
delivery procedures and the mail receipt form. Fredenburg stated that she would have taken the
mail and the form to Haynes, have him sign the form, and then have him open the envelope to


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ensure there was no contraband inside. Fredenburg testified that she did see that the mail
appeared to be from the sender reflected on the form. Based on Fredenburg’s previous history
with Haynes, she testified that if the envelope had been empty, she thought Haynes would have
told her.
        On November 6, 2012, the district court entered an order overruling Haynes’ motion to
vacate or modify, finding that the evidence did not support his claim that he did not receive a
copy of the January 2012 order. Haynes appeals from the order overruling his motion to vacate
or modify.
                                  ASSIGNMENTS OF ERROR
        Haynes asserts that the district court’s denial of his motion to vacate or modify (1)
violated his right to procedural due process and (2) constituted structural error warranting
vacation of the judgment.
                                    STANDARD OF REVIEW
        An appellate court will reverse a decision on a motion to vacate or modify a judgment
only if the litigant shows that the district court abused its discretion. State v. Manning, 18 Neb.
App. 545, 789 N.W.2d 54 (2010). A judicial abuse of discretion exists when a judge, within the
effective limits of authorized judicial power, elects to act or refrain from action, but the selected
option results in a decision which is untenable and unfairly deprives a litigant of a substantial
right or a just result in matters submitted for disposition through a judicial system. Freeman v.
Groskopf, 286 Neb. 713, 838 N.W.2d 300 (2013).
                                            ANALYSIS
Denial of Due Process.
         Haynes first asserts that the district court’s denial of his motion to vacate or modify
violated his right to procedural due process. He argues that the clerk’s failure to send him notice
of the judgment deprived him of his right to appeal the denial of his postconviction motion.
         The State argues that the district court did not abuse its discretion in denying Haynes’
motion. In his motion, Haynes asserted § 25-2001(4) as the statutory basis for the power of the
district court to vacate or modify the judgment, alleging either “(a) . . . mistake, neglect, or
omission of the clerk, or irregularity in obtaining a judgment or order,” or “(f) . . . unavoidable
casualty or misfortune, preventing the party from prosecuting or defending.” However,
§ 25-2001 refers to the power of the district court to modify its judgments after the end of a term,
but within 6 months of the entry of the judgment. In State v. Manning, supra, the defendant
appealed from the denial of his motion to vacate an order dismissing his postconviction motion,
asserting that he was entitled to relief under § 25-2001. We determined that § 25-2001 did not
apply to the case because the statute pertained to the power of the district court to modify its
judgments after the end of a term, but within 6 months of the entry of the judgment. As was the
case in Manning, Haynes’ motion was filed within the same term of court and thus, § 25-2001(4)
does not apply. See Rules of Dist. Ct. of Third Jud. Dist. 3-1 (rev. 1999) (district court calendar
year is from January 1 to December 31). However, this does not end our consideration of
Haynes’ assignment of error.



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         Haynes also asked the district court to apply its equity jurisdiction to vacate the order.
Section 25-2001(2) notes that the power of a district court under its equity jurisdiction to set
aside a judgment or order as an equitable remedy is not limited by this section. As we recognized
in Manning, a district court has broad inherent power to vacate or modify its own judgment
during the term at which it is rendered. See, also, Eichner v. Mid America Fin. Invest. Corp., 275
Neb. 462, 748 N.W.2d 1 (2008). In Manning, we concluded that the district court did not abuse
its discretion in denying the motion to vacate because the motion was, in effect, a late-filed
motion to amend the alleged facts in the defendant’s original postconviction motion.
         The basis of Haynes’ request for equitable relief is that he did not receive notice of the
judgment and was therefore unable to file a timely appeal from the denial of his postconviction
motion. Haynes adduced evidence in support of his motion to vacate, including his testimony
that he did not receive notice of the judgment and various documents showing his inquiry to the
court, prison mailroom procedures, and a form indicating that he did not receive “legal” mail in
January 2012. On the other hand, the State offered the confidential mail receipt form, dated
January 12, 2012, showing that Haynes received mail on that date from Judge Otte, who entered
the order denying Haynes’ motion for postconviction relief. This receipt form is signed by
Haynes, and the testimony of Fredenburg confirmed delivery of the mail to Haynes. The State
argues that it is reasonable to presume that this mail was the order entered by Judge Otte on
January 10, 2012.
         The State also points to the provision in the order requiring the bailiff to mail a copy of
the judgment to Haynes and argues that the law allows the presumption that the official
performed the duty of mailing the judgment to Haynes. In the absence of evidence to the
contrary, it may be presumed that public officers faithfully performed their official duties, and
absent evidence showing misconduct or disregard of the law, the regularity of official acts is also
presumed. State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005). This presumption applies to
the official acts of the clerks of the district courts. State v. Hess, 261 Neb. 368, 622 N.W.2d 891
(2001). However, there is nothing in our record to indicate whether the clerk of the district court
sent the order or notice of the judgment to Haynes. Neb. Rev. Stat. § 25-1301.01 (Reissue 2008)
requires the clerk of the court, within 3 working days after the entry of any civil judgment, to
send a postcard or notice by mail to each party or the party’s attorney, advising that a judgment
has been entered and the date of entry. There is no statutory provision relating to the duty of the
bailiff to send notice of the entry of judgments.
         The State argues that because the bailiff was ordered to mail a copy of the order to
Haynes, the same presumption should apply. The State points to Neb. Ct. R. § 6-1512, which
states generally that the bailiff shall carry out the duties as may be assigned to the bailiff by the
court. In Nye v. Fire Group Partnership, 263 Neb. 735, 642 N.W.2d 149 (2002), the Nebraska
Supreme Court reversed the district court’s denial of the appellants’ motion to vacate a summary
judgment where the record showed that the clerk of the court failed to send notice of a summary
judgment to the appellants, thus depriving them of the opportunity to appeal the underlying
decision. In Nye, the evidence adduced at the hearing included an affidavit from the chief deputy
clerk of the district court, stating that her office did not send out a notice of the summary
judgment to the appellants and that summary judgment orders were sent out by the bailiff in that
court and not by the clerk. On appeal, the court found that notice of judgment sent by the lower


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court’s bailiff did not satisfy the requirements of § 25-1301.01, which requires the clerk to do so.
The court held that a district court is not free to displace duties that the Legislature statutorily
requires to be performed by the clerk of the court by reassigning the duties to its bailiff. Id. The
court cited State v. Hess, supra, and noted that if the clerk had made a court entry indicating that
the notice had been mailed, a presumption of regularity would have attached. The court
concluded, however, that when both the lower court and the clerk admitted that notice of the
judgment was not sent by the clerk, no presumption arises. The court observed that the right of a
party to move for a new trial or to appeal cannot ordinarily be defeated by the clerk of the court’s
failure to give the parties notice of the entry of the judgment. Id. The court concluded that the
failure of the clerk of the court to send notice of the summary judgment to the appellants was
beyond the control of the parties and within the statutory grounds for vacating or modifying an
order under § 25-2001(4).
        Thus, the fact that the bailiff was ordered to mail a copy of the order to Haynes, standing
alone, is insufficient to trigger the presumption of regularity. However, the facts in our case
differ from Nye in that here, we do not have affirmative evidence that the clerk did not send
notice of the judgment. We have evidence that the bailiff was directed to mail the order, and we
have evidence that Haynes received confidential mail from the district court judge who entered
the order, which mail was received by Haynes 2 days after the order was entered. We find that it
is reasonable to presume that Haynes received the order entered by the district court denying his
postconviction motion. We further conclude that the district court did not abuse its discretion in
finding that Haynes did not adduce sufficient evidence to support his claim that he did not
receive the order. This assignment of error is without merit.
Structural Error.
        Haynes also asserts that the district court’s denial of his motion to vacate or modify
constituted structural error warranting vacation of the judgment. Structural errors are errors so
affecting the framework within which the trial proceeds that they demand automatic reversal.
State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012). They are distinguished from trial errors,
which generally occur during the presentation of the case to the jury, and which may therefore be
quantitatively assessed in the context of other evidence presented in order to determine whether
they were harmless beyond a reasonable doubt. Id. The U.S. Supreme Court has limited
structural errors to a few very specific categories--total deprivation of counsel, trial before a
judge who is not impartial, unlawful exclusion of members of the defendant’s race from a grand
jury, denial of the right to self-representation at trial, and denial of the right to a public trial. Id.
Failure to receive notice of the entry of an order does not fall into any of those categories.
Accordingly, this assignment of error is without merit.
                                           CONCLUSION
      The district court did not abuse its discretion in denying Haynes’ motion to vacate or
modify the previous order dismissing Haynes’ motion for postconviction relief.
                                                                                  AFFIRMED.




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