Opinion
No. A-12-512
01-15-2013
TIMOTHY E. AGEE, APPELLANT, v. DIANE SABATKA-RINE, WARDEN OF THE NEBRASKA STATE PENITENTIARY, APPELLEE.
Timothy E. Agee, pro se. No appearance for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
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).
Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Affirmed.
Timothy E. Agee, pro se.
No appearance for appellee.
INBODY, Chief Judge, and SIEVERS and RIEDMANN, Judges.
RIEDMANN, Judge.
INTRODUCTION
Timothy E. Agee challenges an order of the district court for Lancaster County denying his petition for habeas corpus. In his petition, Agee alleges that the sentencing court lacked legal authority to impose a sentence of 10 to 10 years' imprisonment under Neb. Rev. Stat. § 29-2221(1) (Reissue 2008) and that the State failed to allege sufficient facts in its information to charge him as a habitual offender under § 29-2221(2). The trial court found Agee's petition frivolous and not a proper subject for habeas corpus. Because we find that legal authority supports Agee's sentence and that his claim under § 29-2221(2) is not a proper subject for a habeas corpus action, we affirm the decision of the trial court. See § 29-2221(2).
BACKGROUND
In May 2005, the State filed an information charging Agee with possession with intent to manufacture, deliver, distribute, or dispense a controlled substance, marijuana, and with being a habitual criminal. In support of its claim that Agee was a habitual criminal, the State provided citations to two previous cases from 1991 and 1993 wherein Agee was convicted of possession with intent to distribute marijuana and possession with intent to distribute cocaine, respectively. The State alleged that Agee was sentenced to 18 to 30 months' imprisonment for the first conviction and 117 months' imprisonment for the second conviction. The State provided the dates he was delivered into custody to serve his sentences.
Later in May 2005, a jury convicted Agee of unlawful possession with intent to deliver a controlled substance, marijuana, a Class III felony. In July, the court held an enhancement hearing and determined that Agee was a habitual criminal. In August, the court sentenced Agee to serve 10 to 10 years' imprisonment with the Nebraska Department of Correctional Services. The record does not provide any evidence of a direct appeal or postconviction action.
In April 2012, Agee filed a petition for writ of habeas corpus with the Lancaster County District Court. In that petition, he alleged that the trial court sentenced him without legal authority and that the prosecution did not plead sufficient facts to support convicting him of being a habitual offender. The district court for Lancaster County found his claims frivolous and not a proper subject for a habeas corpus action. This timely appeal followed.
ASSIGNMENTS OF ERROR
Agee alleges, condensed and restated, that the trial court erred in denying his motion for habeas corpus because (1) the trial court lacked legal authority to sentence him to 10 to 10 years' imprisonment and (2) the State failed to allege in its information sufficient facts to support a charge of habitual offender. Agee further alleged that his claims were meritorious and a proper subject for a habeas corpus action.
STANDARD OF REVIEW
In a habeas corpus action, an appellate court may consider only whether or not the judgment in question is void. See Berumen v. Casady, 245 Neb. 936, 515 N.W.2d 816 (1994). Whether or not a judgment is void is a question of law, on which an appellate court is obliged to reach a conclusion independently of the court below. Id.
ANALYSIS
Agee argues that the trial court erred in denying his petition for habeas corpus on the grounds that his claims were frivolous and not a proper subject for habeas corpus. We find that because Agee's sentence was legally imposed upon him, the trial court was correct to deny his petition for habeas corpus. We consider the grounds upon which he petitioned for habeas corpus in turn.
Sentencing.
Agee first argues that the sentencing judge lacked the legal authority to sentence him to 10 to 10 years' imprisonment under § 29-2221(1). Specifically, Agee argues that § 29-2221(1) does not give the judge the authority to enter a sentence within a statutory range, but instead gives the judge only the authority to impose a sentence of "a mandatory minimum term of ten years and a maximum term of not more than sixty years." Agee argues that instead of sentencing him to 10 to 10 years' imprisonment, the judge was required to enter a sentence of 10 to 60 years' imprisonment and to use the language "mandatory minimum." According to Agee, the trial court's failure to use the language "mandatory minimum" means that his sentence is subject to "good time" in contravention of the Legislature's intent.
Section 29-2221(1) provides:
Whoever has been twice convicted of a crime, sentenced, and committed to prison, in this or any other state or by the United States . . . for terms of not less than one year each shall, upon conviction of a felony committed in this state, be deemed to be a habitual criminal and shall be punished by imprisonment in a Department of Correctional Services adult correctional facility for a mandatory minimum term of ten years and a maximum term of not more than sixty years . . . .
Section 29-2221(1) authorizes judges to impose prison sentences within a range of 10 to 60 years. See, also, State v. Danridge, 1 Neb. App. 786, 511 N.W.2d 527 (1993) (approving sentence of 15 to 30 years' imprisonment of habitual offender under § 29-2221(1)).
Because a sentence of 10 to 10 years' imprisonment is within the statutory range of 10 to 60 years' imprisonment, the trial court had legal authority to issue the sentence. Moreover, Agee is incorrect in asserting that his sentence of 10 to 10 years' imprisonment is subject to reduction for "good time" because it was imposed pursuant to § 29-2221(1). See Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002).
Because the trial court had proper legal authority to impose a sentence of 10 to 10 years' imprisonment pursuant to § 29-2221(1), the trial court properly denied habeas corpus relief on that ground.
Failure to Plead Sufficient Elements.
Agee's second argument in support of his petition for habeas corpus was that the State did not charge all of the elements required to convict Agee as a habitual offender in its information in contravention of § 29-2221(2).
This argument is not the proper subject of a habeas corpus action. "'The writ of habeas corpus is not a corrective remedy, and is never allowed as a substitute for appeal or writ of error.'" Darling v. Fenton, 120 Neb. 829, 830, 235 N.W. 582, 583 (1931) (quoting State v. Crinklaw, 40 Neb. 759, 59 N.W. 370 (1894)). In Von Bokelman v. Sigler, 175 Neb. 305, 306, 121 N.W.2d 572, 574 (1963), a petitioner alleged that he was "unlawfully imprisoned in the State Penitentiary on a void sentence." In that action, the trial court noted:
"Habeas corpus is a collateral, and not a direct, proceeding, when regarded as a means of attack upon a judgment sentencing a defendant; and when the judgment is regular upon its face and was given in an action in which the court had jurisdiction of the offense and of the person of the defendant, no extrinsic evidence is admissible in a habeas corpus proceeding to show its invalidity."Id. at 308, 121 N.W.2d at 575 (quoting Hulbert v. Fenton, 115 Neb. 818, 215 N.W. 104 (1927)). Habeas corpus is not a substitute for failing to properly challenge a sentencing error on direct appeal or postconviction. See id. Rather, a habeas corpus action will not lie if the sentence was within the power of the court to impose. See id. Accordingly, a sentence must appear completely void in order to support issuing a writ of habeas corpus. See id.
In this instance, Agee does not allege that the trial court lacked jurisdiction over his person or the case. His allegation that the State failed to cite sufficient facts in its information does not implicate the trial court's legal authority to impose a sentence on him. Accordingly, this argument is not the proper subject of a habeas corpus action and the trial court correctly declined to consider it in Agee's habeas corpus petition.
CONCLUSION
Because the trial court had authority to impose a sentence of 10 to 10 years' imprisonment on Agee pursuant to § 29-2221(1) and Agee's claim under § 29-2221(2) is not a proper subject for a habeas corpus action, the trial court correctly denied his petition for habeas corpus. The decision of the trial court is, therefore, affirmed.
AFFIRMED.