CASE JI_---"'::::.2Z-."'-"-'-""'-A-99-l075
_
OCT 2 G'1~1~19
IN THE NEBRASKA
APPEALS
COURT
COU;i.·j·
- .J\t:j
Alvin Long
APPELLANT
VS
John Martjn
APPELLEE
APPEAL FROM THE DISTRICT COURT
OF Lancaster COUNTY, NEBRASKA
HONORABLE DISTRICT JUDGE M~c~G~in~n~
BRIEF OF THE
Appellant
P.O. Box 22800
Lincoln, NE 68542-2800
Pro se
KLUTZNICK LAW LIBRARY
CREIGHTON UNIVERSITY
_
TABLE OF CONTENTS
STATEMENT OF THE CASE
. ...... . ... . . . . ... . .... . . ... . . . . ...
3,
ASSIGNMENT OF ERROR •••••••••••••••••••••••••••••••••••••• 4,
PROPOSITION OF LAW.
..... . . . ... . .. . . .. . . ... . . . . . . . . ... . .
5,
STATEMENT OF FACTS ••••••••••••••••••••••••••••••••••••••• 6,
. .. . . . . . . . . . . . . . . ... . . ... . . . . . . . . ... . . . . . .. . . . . .
7,
CONCLUSION. • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • ••
8,
PROOF OF S E R V I C E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.
ARGUMENT
1
TABLE OF CASES
WEAVER V. GRAHAM
CARLSON V.
HAINES V.
450 U.S.
24
5,7
STATE 945 F.2d 1026 •.••••.•••••••...••••...••.• 8
KERNER 404 U. S. 519 .•••..•••.•••...•••..•.••••.• 8
TABLE OF AUTHORITIES
Neb. Rev. Stat. § 29-2221
6
Neb. Rev. Stat. § 83-1,107
7
LB-371
LB-816
....................................................
. . .. .. .. ..... . .. ... .... .. . .... . ............ .. .. . ....
4,5,7
8.
STATEMENT OF THE CASE
A. NATURE OF THE CASE
This is an appeal from the Lancaster County District Court,
rendered against the Appellant's Writ of Mandamus,
B. ISSUES IN LOWER COURT
1.) Whether Appellants Original date of arrest on the charge of
THEFT, August 1995, was the controlling date to determine whether the
law regarding goodtime prior to LB-37l, should have been applied,
2.) Whether the fact that the Appellant was charged with Amended
charges of FAILURE TO APPEAR, April 22, 1996, when he failed to appear
for the trial on the theft charge grants the State the option of application the more onerous provision of law, which took effect 9-9-95.
C. HOW THE ISSUES WERE DECIDED
The lower court disregarded the date the original crime occurred
which was August 1995, and applied the law that took effect September
9,1995 (LB-371), based on the April charge of failure to appear.
D.) SCOPE OF REVIEW
1.) Whether the lower court erred in failing to apply the law in
effect at the time of the Appellant's original charge of Theft,
2.) Whether an Amended information charge of Failure to Appear,
which required another charge from which one failed to appear could be
used against the Appellant in order to enhance the burder of penalty.
ASSIGNMENT OF ERROR
The Trial Court erred in failing to view the Appellant's claims
as true, regarding the contention that his original crime of Theft
occurred August of 1995, prior to the operative date of LB-371 which
was September 9, 1995.
The Trial Court erred in useing the Amended charge of Failure to
Appear for court charge date of April 22,1996 as the controlling date
for determination of whether the law in effect prior to LB-371 would
apply based on the fact that the Appellant's original Crime occurred
prior to it's enactment.
The Trial Court erred in granting Summary Judgement when there was
clearly dispute in date of the original charge. Facts that could have
been aduced during the trial.
PROPOSITION OF LAW
STATUTE REDUCING THE AMOUNT OF GOODTIME OR GAIN TIME WHICH COULD
BE EARNED BY THE PRISONER VIOLATE THE EX POST FACTO CLAUSE AS APPLIED
TO ONE WHOSE CRIME OCCURRED BEFORE IT'S ENACTMENT, OR OPERATIVE DATES,
WEAVER V. GRAHAM 450 U.S. 24
PROPER RELIEF UPON A CONCLUSION THAT A STATE PRISONER IS BEING
TREATED UNDER AN EX POST FACTO LAW IS TO REMAND TO PERMIT THE STATE
COURT TO APPLY IF POSSIBLE, THE LAW IN PLACE WHEN THE CRIME OCCURRED.
STATEMENT OF FACTS
1.) The Appellant was arrested in August 1995, on the Charge of
THEFT, based on a pair of gym shorts with a retail value of $29.95.
2.) The Appellant was directed to appear in court on three different
times and failed to deliver himself, Consequently on the 22nd of April
1996, the Appellant's charges were amended to include the charge of
FAILURE to APPEAR, and the Habitual Criminal (T;6)
3.) On 15th of April 1997, Appellant was sentenced under Nebraska
Revised Statute § 29-2221 Habitual Criminal Act, to a term of not less
than 10 years nor more then 20 years.
(T;8).
4.) On September 9, 1995 Nebraska Unicameral passed Legislative
Bill 371, and amended 29-2221 at section 32. The bill states that
§
3 to 5 and 34 of this act become operative January 1, 1996. § 19 to
21, 25, 26, 29, and 35 of this act become operative on July 1,1996 the
other sections of this act become operative on their effective date,
(T:8)
ARGUMENT
This case comes down to whether the Appellant's original charge
of THEFT, that occurred in August 1995, control the whether the law
applied should be the law in effect at the time of the Theft charge
which would be LB-8l6, or the provisions of LB-371 which was in effect
at the time the Appellant was charged with the Amended information of
FAILURE to APPEAR.
If the court decide the Appellant is entitled to the Law in effect
at the time of the'original crime of Theft, then the Appellant would
be entitled to have goodtime applied to his mandatory minimum term, in
order to determine when he would become eligible for parole. Because the
only obligation the court had prior to LB-371 was the sentence the Appellant to a mandatory minimum term, which the facts show was delivered.
There was nothing in the language of the law that restricted the Appellant
from application of Neb. Rev. stat. 83-1,107, regarding appliable goodtime.
Appellant further argue that the charge of Theft has to be the
controlling charge due to the fact that the amended charge of Failure
to Appear requires a foundation charge to stand. In plain language if
the Theft charge was eliminated prior to filing the Failure to appear the
Appellant would have had no reason to appear before the court. Therefore
the date the Theft took. place is the controlling date to determine which
law apply.
(T:6)
(T;8).
Appellant contend that to apply the more onerous provisions of LB-371
to the case where the original charge of Theft occurred prior to it's
enactment constitutes a violation of Ex post facto principles,
WEAVER V. GRAHAM 450
U.s.
24.
(see
CONCLUSION
Therefore the lower court erred in failing to except the appellant's
contention that his original charge occurred August 1995, prior to the
enactment of any part of LB-37l,
(see attached documents marked EX-l
EX-2, which confirme the lower court was aware of the contention of the
original charge occurring August 1995, prior to LB-37l.
The lower court was obligated to view the appellant's facts as true
and apply a liberally constructive process in favor of the Appellant,
CARLSON V. STATE 945 F.2d 1026 and HAINES V. KERNER 404 U.S. 519.
BASED
on
the
forgoing
facts,
reasons,
and
authority,
appellant respectfully move this court for an order including the
following,
REMAND THIS CASE TO PERMIT THE LOWER COURT TO APPLY THE LAW INEFFECT
AT THE TIME THE CRIME OF THEFT OCCURRED,
LB-8l6 WHICH ALLOWED FOR THE
APPLICATION OF GOODTIME TO ALL SENTENCES OTHER THEN LIFE SENTENCES.
Dated this
of
BY:
CERTIFICATE OF SERVICE
The undersigned hereby certify that a true copy of the
attached
:DKis! of tltp-f/;wf ,
filed by the
~ff!lt&6
has been sent to the opposing counsel, by U.S. Mail postage
prepaid, and addressed to,
I
i\j{ bgf1sM
/},II{
(Q$£o1--
f!:A1r: !AaioL
) /NCoLIl
r
7
on the
!iit
day
0
f
-+7"~'-'----'
llCfi.
P.O. Box 22800
Lincoln, NE 68542-2800
q
LB 371
LB 371
I
LEGISLATURE OF NEBRASKA
NINETY-FOURTH LEGISLATURE
FIRST SESSION
Legislative Bill 371
FINAL READING
Introduced by Lindsay, 9, HUdkins, 21, Pedersen, 39, Fisher, 35,
Will, 8, at the request of the Governor
Read first time January 11, 1995
Committee: JUdiciary
A BILL
1
FOR
AN
ACT
relating
to
crimes
and offenses; to amend sections
2
28-105,
3
29-2525,
4
83-1,116, 83-1,122, 83-1,123, 83-1,135, 83-4,114.01,
5
83-925.07,
6
sections
7
28-1212.02,
8
Statutes Supplement, 1994; to change provisions
9
28-318,
28-320,
28-1205,
29-2257,
43-2,104, 43-2,105, 47-616, 83-1,107, 83-1,110,
Reissue
28-101,
ReVised
28-319,
29-2204,
Statutes
28-416,
,29-2221,
of
and
and
Nebraska, and
28-516,
28-1212.01,
29-2262,
Revised
relating
6'
to
penalties for felonies; to define and redefine terms;
10
to change provisions relating to the
11
Substances
12
provide
13
28-1206,
Act;
for
propelled
to
the
change
offenses
®
vehicle,
use
of
~
Uniform
provisions
of
<;l>
Controlled
relating to and
unauthorized
use
of
a
a deadly weapon to commit a
(9
14
felony, possession of a
15
fugitive,
and
&>
.
assault
deadly
weapon by
on
officer
an
printed with soy ink on recycled paper
a
using
felon
a
or
motor
I·
LB 371
LB 371
1
and (3) of this section may be forfeited, withheld, and restored by
2
the
3
offender has been consulted regarding the charges of misconduct
4
breach
5
recommend such forfeitures of good time to the director.
administrator
of
the
the
approval
conditions of parole.
of
the director after the
7
under the provisions
8
operative
3
In addition, the board may
4
5
9
·7
may be forfeited, withheld, or
8
restored in accordance with the terms of the Nebraska Treatment and
9
of
any
this
law
section,
prior
to
6
the
date
of
2
or
f47 iQl Good time or other reductions of sentence granted
6
10
with
~
~
!99£
Corrections Act.
10
~ec'~".2i:,,~·sect'ion'83~1:i'1~
11
12
Nebraska, is amended to read:
13
83-1,110.
Reissue Revised
statutes
of
;1
1;1
11
12
H'I
esmmitted effender frhe±± be eligible
13
14
£er ~age en parele ~ eempletisn ef the minimum ~ ~ ~
14
pa 1
15
~
te
15
~i: 1
16
the el:piratien ef -tlw minimum
~ f;tt'
16
~n
17
the jUdge's sueeesssr in offiee
17
per 1
18
~
19
section. every committed offender shall be eligible for parole when
19
or , 1
20
the
20
offe 1
21
sentence.
22
sentence imposing a mandatory minimum term.
ft
(1)
~
cemmitted effender frhe±± be eligible £er parele
tefift
whenever -tlw sentencing
~
appreval £er the
~
parole
ef
efEender Except as provided in SUbsections (3) and (4) of this
offender
23
has
served
one-half the minimum term of his or her
No such reduction of sentence shall be
(2)
~
applied
to
any
18 . r eq:
21
22
Except as provided in SUbsections (3) and (4)
23
consecutive
24
certi 1
whether received at the same time or at any time during the
25
such
26
original sentence, shall be eligible for release on parole when the
26
27
offender has served the total of one-half the
27
28
±egg
24
of this section, every committed offender sentenced to
25
terms,
~
~
minimum
terms~
I
The maximum terms shall be added to compute the
-28-
28
offiCE
LB 371
[,B 371
motor
LB 371
vehicle,
(2)
~section
officer or employee is engaged in the
Assault on an officer using a motor vehicle shall be
a Class IV felony.
iplinary
Sec. 32.
the
operative
to
such
performance of his or her duties.
:uses to
by
while
on
Sections 3 to 5 and
34 of
act
become
January 1, 1996.
~:f.hi=tt"'become"~'operanve:t;,on
',July.
,
the
this
~.
1,. ./1,996.
The
other
.~.
sections of this act become operative on their effective date.
)ility of
",
Sec.
9
33.
If any section in this act or any part of any
is
10
section is declared invalid or
to teach
11
shall not affect the validity or constitutionality of the remaining
to
12
portions.
;tructured
13
who
,unity
n, limited
Sec.
34.
unconstitutional,
the
declaration
Original sections 28-318 and 28-320, Reissue~
14
Revised Statutes of Nebraska, and section 28-319, Revised
15
supplement,'1994, are repealed.
Statutes
sociation.
of, or any
,ions of an
shall have
reasonable
ing conduct
!,ssault
on
18 ,. are repealed.,
19
Sec.
36.
Original
sections 28-105, 28-1205, 28-1206,
20
29-2257, 29-2525, 43-2,104, 43-2,105, 83-1,116, 83-1,122, 83-1,123,
21
and 83-925.07, Reissue Revised Statutes of Nebraska,
22
28-101,
23
and 29-2262, Revised Statutes Supplement, 1994, are repealed.
28-416,
of
;ing a motor
,e or Ib) by
employee I s
-37-
,
v
'
sections
28-516, 28-1212.01, 28-1212.02, 29-2204, 29-2221,
ionally and
,mployee
and
•
[f- - I
IN THE DISTRICT COURT OF LANCASTER COUNTY, NEBRA~
~UPV
ALVIN LONG,
Plaintiff,
vs.
JOHN MARTIN,
Defendant.
)
)
)
)
)
)
)
)
)
)
Docket 562
Page 260
ANSWER
COMES NOW the Defendant, John Martin, by and through counsel, and in answer
to the Plaintiff's Amended Petition, states as follows:
1.
Denies each and every allegation contained in the Petition except those
specifically admitted herein and those which constitute admissions against the Plaintiff's
interests.
2.
Admit that Plaintiff was sentenced as an habitual criminal on April 17, 1997,
after the July 1, 1996, effective date of LB 371 which amended Neb. Rev. Stat. 83-1,110
to provide that:
[E]very committed offender shall be eligible for parole when the
offender has served one-half the minimum term of his or her
sentence. No such reduction of sentence shall be applied
to any sentence Imposing a mandatory minimum term.
Neb. Rev. Stat. § 83-1,110 (Cum. Supp. 1996) (emphasis added).
3.
Deny that the underlying offense for which Plaintiff was charged as an
habitual criminal occurred in July 1995.
4.
Allege that Plaintiffs habitual criminal offense of Failure to Appear occurred
on April 22, 1996, after the September 9, 1995, effective date of Neb. Rev. Stat. 29-2204
(1995) which provides that an habitual criminal "shall be punished ...for a mandatory
minimum term of ten years."
5.
Allege that Plaintiffs Amended Petition does not state facts sufficient to
constitute a cause of action entitling Plaintiff to a writ of mandamus.
JOHN MARTIN, Defendant
BY:
DON STENBERG, #14023
Atto
y General
BY:
M ie . Pawol, #183 4
Assistant Attorney General
2115 State Capitol
Lincoln, NE 68509-8920
(402) 471-2682
Attorneys for Defendant
CERTIFICA TE OF SERVICE
It is hereby certified that a copy of the foregoing Answer has been served upon the
Plaintiff, pro se, herein by mailing said copy, first class postage prepaid, addressed to
ALVIN LONG #49512 at Lincoln Correctional Center, P.O. Box 22800, Lincoln, NE 68542-
2800, on this 11th day of September, 1998.
.c.
Mane . awol
Assistant Attorney General
23·877·5.11
-2-
'-"
, .)
... 1
SE~VE
ATI
ARRI
9/.25/96:
JAIl:,
8:30 A.M., DC t3, C
-9936
'1'Y, NEBRASKA
'96) Sf? 260
STATE OF NEBRASKA,
•
)
PLAINTIFF,
) C: ;:' " ;','
1- ';:,' ,,.. ':
01 'P 1r'. .
I
VS.
)
PAGE:
INFORMATION
FOR:
J. \
:AlLURE TO APPEAR AND HABITUAL
)
)
ALVIN LONG,
\.,
~,
t;, '1 3
CRIMINAL:
29-908, 29-2221
10-60 YEARS
)
DEFENDANT.
~A~CK
)
)
F. CONDON, Deputy Lancaster County Attorney by
authority of the State of Mebraska, comas here in person into Court
at this, the 1996 Term, thereof, and for the State of Nebraska
gives the Court to understand and
~e
informed that ALVIN LONG on or
about April 22, 1996, in the county of Lancaster, and the state,
aforesaid, contrary to the form of the statutes in such cases made
and provided then and there being, did, having been charged with a
felony, to-wit:
Theft by Unlawful Taking, Third or Subsequent
Offense, at Lancaster County Court Docket CR96-4006, and having
been
released
from
custody
under
bail,
recognizance;;-'" c!Jr
....
l'>otTl
conditioned release, willfull.y faUed to appeaz before
granting such release when legally required to do so or
himself within three (3) days thereafter, to-wit;
df
rn
..."
t~ ~oU¢ ~
}:>o t")
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"•
•
,
April 22, 1996; and the said PATRIcK F. CONDON, bei.ng further
sworn,
s"ays
that
the
defendant,
ALVIN LONG,
has
been
twice
convicted of a crime, sentenced and committed to prison, i.n this or
any other state, or by the United States, or once in this state and
at least once in any other state, or by the United States, for
terms of not less than One year upon each of said convictions, by
which convictions said defendant is deemed to be
criminal,
a
habitual
tO~witl
1.
ROBBERY:
District Court of Douglas County, Nebraska,
on or about June 22, 1982, two (2) to four (4) years; and
2. 'l'HEFT: District COlU"t of Lancaster County, NebraSka,
on or about July 7, 1989, eighteen (18) months to four (4) years.
THE STATE OF NEBRASKA, Plainti£f
'V'--""..-I.
;;..alA.--d ay
ar CVJJ!./
SUBSCRIBED AND SWORN TO BEFOnE ME this
Septe:nber, 1996.
f)
/) ')
DISTRICT COURT
of
IN THE DISTRICT COURT OF LANCASTER COUNTY, NEBRASKA
ALVIN LONG,
DOCKET 562
PAGE
260
PLAINTIFF
VS.
PLAINTIFF'S REPLY TO THE
DEFENDANT'S MOTION TO
JOHN MARTIN,
QUASH AND DISMISS
DEFENDANT.
COME NOW, the plaintiff acting pro se, submit this written
reply to the defendant's Motion to Quash and Dismiss, in support
of this court entering order overruling the defendant's Motion.
Plaintiff offer the following in support of,
1st, Defendant allege the plaintiff fail to state facts sufficient
to constitute a cause of action, and this claim is supported by
the defendant's claim that the defendant's have no clear duty
to provide the plaintiff with good time credit on a mandatory
minimum sentence, and as authority the defendant offer the amended
provisional language of LB-371, effective July I, 1996, and provide
that;
[E]very committed offender shall be eligible for parole when
the offender has served one half the minimum term of his or her
sentence. No such reduction of sentence shall be applied to any
sentence imposing a mandatory minimum term. Neb. Rev. Stat.
§
83-1,110.
RELEVANT FACTS
A.) Plaintiff, was arested, in August of 1995, and
Sentence~
requires that the plaintiff be denied good time credit.
WHEREFORE plaintiff respectfully move this court for an order
overruling the defendants Motion to Quash and Dismiss, on the
basis that sufficient facts exist to support the plaintiff's request
for writ, as it is clear the duty to enforce LB-816 existed at
the time of the writ was applied for and still exist now due to
the courts holdings of application of the principles of Ex post
facto.
BY:
~ji~; eon) ~lqQ1tiff
P.O. Box 22800
Lincoln, NE 68542-2800
CERTIFICATE OF SERVICE
COME NOW the plaintiff
, in the attached action,
while acting pro se, and hereby certify that a true and accurate copie of the attached REPLY TO MOTION TO QUASH
,
filed by, plaintiff
,were served on the opposing Counsel,
herein by United States Mail, first class postage prepaid, on
this
day of November
19~, addressed to,Attorney
General 2115 State Capitol Building Lincoln NE .68509.
IN THE DISTRICT COURT OF LANCA"ER COUN",
DOCKET .5fp
ATNIN LONG,
a.
N'ORA'K~~~~
PAGE
a 100
PLAINTIFF
VS.
PIrAINTIFF'S REPLY
TO ISSUES SUBMITTED BY
DEFENDANT'S
JOHN MARTIN,
DEFENDANT
COME NOW plaintiff in the above entitled cause of action,
respectfully subinit to the court this reply to the defendant's
Supplemental dated May 15, 1998.
Plaintiff offer the following information in support of this
court granting the plaintiff's Motion to Vacate and Set aside
it's jUdgement,
1.) Plaintiff would offer to the court that the claims made
by the defendant, alleging the "Mandatory Language" that deny
goodtime application to the plaintiff, carne into effect after
he was sentenced, is absolutely irrelevant, based on the following
facts, a.) Plaintiff would be entitled to the law in effect on
the date the crime occured, which in this case was, ~l9\1*
i
\'1'15",
based on the principles of Ex post facto, controlled by WEAVER
V. GRAHAM
101 S.ct. 960
LINDSEY V. WASHINGTON 301 U.S. 397 and
COLLINS V. YOUNGBLOOD 497 U.S. 37.
2.)
The
the
in
allegation that the mandatory language as setforth
Habitual
meaningless,"
Criminal
found
as
is
Act,
on
page
absolutely
rendered
2,
is
4,
§
clearly
misinterpretation of the intent of the provision of
and
an
obvious
attempt
to
add
language
not
a
29-2221,
§
appearing
in
the
Statute.
Plaintiff
agree
the
provision
mandates a mandatory minimum
be given to. anyone convicted under the provision of Neb.
Stat.
29-2221,
§
however there is a
down a mandated minimum term,
Rev.
difference between handing
and handing the same down with an
additional provision that no good time shall be deducted.
The sentencing court met it's obligation to §
the
plaintiff
years,
and
was
had
no
sentenced
further
to
the
statutory
obligation
to
29-2221 when
minimum
require
of
the
ten
term be
served without the application of goodtime.
3. )
Next
plaintiff
offer
to
the
court
that
the
Authority
relied upon by the defendant 's. (see Attorney General opinion #
96066, dated August 28,
1996) which states the authority as Neb.
Rev. Stat. § 28-416 (10) 1989.
Plaintiff
provision,
would
respectfully
request
the
court visit
this
and note that the language of this provision relates
that the accused must have been convicted of a Drug offense, for
the
mandatory
Plaintiff
was
language
not
of
no
convicted
parole
of
a
eligibility
drug
offense,
to
apply.
and
defendant's have no valid authority to apply this provision.
the
Plaintiff would further show to the court that, the position
taken by the defense counsel in this cause of action is in conflict
with an Attorney General opinion # 97005, dated January 14,1997,
entitled, New Goodtime Law and Ex Post Facto Clause,
(see attachment
marked as exhibit 'B', the authority relied upon in this opinion
is, WEAVER V. GRAHAM 450 U.S. 24, which,held;
statute reducing the amount of good time or
gain time which could be earned by prisoners
violate the ex post facto clause as applied
to one whose crime occurred before its effective
date.
Proper relief upon a conclusion that
a stat~ prisoner is being treated under an
ex post facto law is to remand to permit
the state court to apply if possible, the
law in place when the crime occurred.
In the action before this court the facts are clear that the date
the crime for which the plaintiff was arrested for was in fact,
AUGUST
Z995
ChaPge was dismissed twiee, & Refiled twiee, Habitual Criminal added ta ehapge
of Failure to Appear while plaintiff was in hospital after heing shot 1996.
The Habitual Criminal Act information was added,
and on __z....5u.t,flay of ______~A~p~Mu·~1 19
,
~
March 1996
plaintiff was sentenced.
In light of the forgoing facts and attached exhibits the plaintiff
contend that sufficient information has been provided to show
to the court, the plaintiff would be entitled to have this courts
ordered rendered 3-25-98, set aside. And a new order entered directing
the defendants to show cause why this plaintiff would not be entitled
to a.) The statutory provisions in effect on the date of his crime