State v. Jones

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/13/2020 08:05 AM CST




                                                         - 809 -
                               Nebraska Supreme Court Advance Sheets
                                        307 Nebraska Reports
                                                    STATE v. JONES
                                                   Cite as 307 Neb. 809




                                        State of Nebraska, appellee, v.
                                          Akeem R. Jones, appellant.
                                                     ___ N.W.2d ___

                                         Filed November 13, 2020.   No. S-20-184.

                 1. Judgments: Appeal and Error. When reviewing questions of law, an
                    appellate court resolves the questions independently of the lower court’s
                    conclusions.
                 2. Negligence: Public Officers and Employees: Pleadings: Appeal and
                    Error. The appropriate filing procedure when an appeal is lost due to
                    official negligence is for the party seeking relief to file a motion in
                    the lower court, seeking the ability to establish the basis for obtain-
                    ing relief.
                 3. Presumptions. A letter properly addressed, stamped, and mailed raises a
                    presumption that the letter reached the addressee in the usual course of
                    the mails.
                 4. Public Officers and Employees: Presumptions. In the absence of evi-
                    dence 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 presumed.
                 5. Public Officers and Employees: Presumptions: Evidence. The pre-
                    sumption that a public officer will faithfully perform his or her official
                    duties can be overcome by the showing of evidence to the contrary.

                 Appeal from the District Court for Douglas County: Leigh
               Ann Retelsdorf, Judge. Reversed and remanded.
                    Akeem R. Jones, pro se.
                 Douglas J. Peterson, Attorney General, and Siobhan E.
               Duffy for appellee.
                 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
               and Papik, JJ.
                              - 810 -
         Nebraska Supreme Court Advance Sheets
                  307 Nebraska Reports
                         STATE v. JONES
                        Cite as 307 Neb. 809

   Miller-Lerman, J.
                       NATURE OF CASE
   Akeem R. Jones was convicted in the district court for
Douglas County of first degree murder and was sentenced to
life imprisonment. State v. Jones, 296 Neb. 494, 894 N.W.2d
303 (2017). After his direct appeal was unsuccessful, Jones’
subsequent postconviction petition was denied without an evi-
dentiary hearing on February 5, 2018, and Jones attempted to
appeal the postconviction ruling. He filed a notice of appeal on
February 26; however, Jones’ request to proceed in forma pau-
peris and the supporting poverty affidavit were not filed until
March 23, thereby missing the March 7 deadline. Therefore,
on July 6, we dismissed the appeal in case No. S-18-295 for
lack of jurisdiction. Thereafter, Jones filed a verified motion
to vacate or modify in the district court in which he sought
reinstatement of his appeal. Jones claimed that in order to
meet the March 7 appellate deadline, he gave his paperwork
to the proper authorities to mail prior to March 7, but that
the negligent acts of prison officials in the mailroom at the
Nebraska State Penitentiary delayed the filing of his poverty
affidavit. The district court denied the motion without a hear-
ing. Jones appeals. We reverse, and remand for a hearing on
Jones’ motion.
                   STATEMENT OF FACTS
   This case arises from a motion filed by Jones in the dis-
trict court seeking postconviction relief, which was denied on
February 5, 2018, without an evidentiary hearing. Jones filed a
notice of appeal on February 26, but his request to proceed in
forma pauperis and his supporting poverty affidavit were not
filed until March 23. On July 6, we dismissed the appeal in
case No. S-18-295 for lack of jurisdiction because of failure to
pay the required docketing fee within 30 days or failure to file
a poverty affidavit to substitute for the required docketing fee.
See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018).
   On November 15, 2019, Jones filed a verified motion in
which he sought an order vacating or modifying judgment, the
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          Nebraska Supreme Court Advance Sheets
                   307 Nebraska Reports
                          STATE v. JONES
                         Cite as 307 Neb. 809

purpose of which was to reinstate his appeal from the denial
of his motion for postconviction relief. The denial of Jones’
motion to vacate or modify without a hearing is the subject of
this appeal.
   In his motion, Jones alleged, inter alia:
      [Jones’] Poverty Affidavit was submitted via prison mail
      (according to rules and regulations established by the
      prison, handing mail to prison staff in one’s housing unit
      to transport to deliver to the prison mailroom staff for
      mailing) on or about March 2, 2018, to be received by
      the Clerk of District Court (Douglas County, Nebraska)
      before the 30-day timeline (March 7, 2018). However,
      [Jones’] said legal mail was erroneously returned to his
      housing unit, and placed on a desk of one of the unit staff
      member[s], and abandoned, without informing or notify-
      ing [Jones] in a timely fashion . . . .
   Additional allegations are quoted below in our analysis sec-
tion. In conclusion, Jones alleged that the poverty affidavit was
untimely filed in the appellate court “due to the lateness and
negligence of prison officials.” With respect to relief, relying
on our language in State v. Parnell, 301 Neb. 774, 919 N.W.2d
900 (2018), Jones asserted that in such a case, he was entitled
to “the ability to establish the basis for relief” through an order
granting his motion or a hearing that “would permit and allow
[Jones] to present said merits before the court.”
   Jones alleged that certain exhibits were attached. He stated
that the exhibits “are imperatives and submitted herewith as
bona fide proof, commensurating [Jones’] requested relief
in the instant, and as a matter of law.” The memorandum
from Melody Michaud, a case manager at the Nebraska State
Penitentiary, was attached. The memorandum is unsworn. The
memorandum states, in relevant part:
         On 3-16-2018/, I found an envelope on a desk that
      inmate Jones 84240 had previously turned in to mail
      on 3-7-2018. (A note from our mailroom was attached
      giving me this information.) The letter was returned for
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          Nebraska Supreme Court Advance Sheets
                   307 Nebraska Reports
                          STATE v. JONES
                         Cite as 307 Neb. 809

      postage, but should have been given to Mr. Jones upon
      it’s [sic] arrival back to the housing unit. I notified Jones,
      who told me that this was a letter for the courts and had
      a due date, but now it was late.
          Jones had resubmitted the envelope for mail, but was
      returned to the unit on 3-20-2018 as no staff had signed
      off on approval for postage. On this occasion, the fault
      lies with me, I had neglected to sign off approval and the
      envelope came back to the housing unit again.
          Please take into consideration that the lateness of this
      mail was not the fault of Akeem Jones, but that of hous-
      ing unit staff. I apologize for any inconvenience that this
      may have caused.
   The district court denied Jones’ motion for reinstatement
of his appeal. It appears the court ignored Jones’ sworn alle-
gations of an earlier date. Instead, working on the incorrect
assumption that appellate filings were due on March 2, 2018,
and relying on the unsworn Michaud memorandum, the dis-
trict court made certain findings. It found that Jones originally
gave his request to proceed in forma pauperis and his poverty
affidavit to the mailroom on March 7 and that because these
documents were due on March 2, they were untimely delivered
to the mailroom even before any subsequent acts of negligence
by public officials. Jones appeals.
                  ASSIGNMENT OF ERROR
   Jones assigns, restated, that the district court erred when it
denied his motion to vacate or modify the judgment without
a hearing.
                   STANDARD OF REVIEW
   [1] When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s con-
clusions. State v. Parnell, supra.
                          ANALYSIS
   In this appeal, Jones generally claims that the appeal from
the denial of his motion for postconviction relief was lost
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         Nebraska Supreme Court Advance Sheets
                  307 Nebraska Reports
                         STATE v. JONES
                        Cite as 307 Neb. 809

due to official negligence and that his attempt to remedy the
situation in the district court was wrongly denied. As explained
below, we find merit in Jones’ assignment of error and reverse,
and remand for a hearing.
   Jones filed a verified motion to vacate or modify the judg-
ment. In his motion, Jones alleged that he submitted mail,
including his request to proceed in forma pauperis and
his poverty affidavit, “on or about March 2, 2018, to be
received . . . before the 30-day timeline (March 7, 2018).”
Jones further alleged that mail containing the poverty affida-
vit was mislaid by prison staff, causing it to be filed after the
deadline for his appeal. The unsworn memorandum prepared
by the case manager, Michaud, was attached to Jones’ motion.
The district court denied Jones’ motion without a hearing. The
district court reasoned that the memorandum attached to Jones’
motion conclusively disproved Jones’ allegations. In particular,
the district court found that Jones’ request to proceed in forma
pauperis and his poverty affidavit were untimely submitted to
the mailroom regardless of mishandling of the mail and subse-
quent negligence of prison staff.
   [2] We have recently concluded that the appropriate filing
procedure when an appeal is lost due to official negligence is
for the party seeking relief to file a motion in the lower court,
seeking the ability to establish the basis for obtaining relief.
State v. Parnell, 301 Neb. 774, 919 N.W.2d 900 (2018). This is
the procedure Jones followed.
   [3-5] We have long held that a letter properly addressed,
stamped, and mailed raises a presumption that the letter
reached the addressee in the usual course of the mails. Id. 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 presumed. Id. The pre-
sumption that a public officer will faithfully perform his or her
official duties can be overcome by the showing of evidence
to the contrary. See id. In this case, Jones has made a show-
ing under oath that mail consisting of his poverty affidavit to
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          Nebraska Supreme Court Advance Sheets
                   307 Nebraska Reports
                          STATE v. JONES
                         Cite as 307 Neb. 809

be delivered to the court in a timely manner for filing was
handled in an irregular manner.
   As an initial matter, we note that the district court incorrectly
calculated the final day to perfect an appeal as March 2, 2018,
when the actual deadline was March 7. See § 25-1912. This
error coupled with its reliance on the unsworn memorandum
based on hearsay cast doubt on the district court’s reasoning.
   Relying on the memorandum attached to Jones’ motion,
and contrary to Jones’ allegations, the district court found that
Jones gave his mail containing the poverty affidavit to the
mailroom on March 7, 2018, and thus found it was untimely
upon arrival. We believe that the district court’s reliance on the
memorandum as a basis to deny a hearing was misplaced, for
several reasons.
   The memorandum from Michaud upon which the district
court relied was not verified, was not based on her own
knowledge, and was based entirely on the hearsay contained
in a note prepared by an unknown author. Further, Michaud
was not competent to assert of her own knowledge that Jones
turned his mail in on March 7, 2018. With respect to the March
7 date, Michaud admits that “[a] note from our mailroom was
attached giving me this information.” See Neb. Rev. Stat.
§ 27-801 (Supp. 2019) (providing that hearsay is “a statement,
other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the
matter asserted”).
   In contrast, Jones swore in a verified motion that he submit-
ted the poverty affidavit
      via prison mail (according to rules and regulations estab-
      lished by the prison, handing mail to prison staff in one’s
      housing unit to transport or deliver to the prison mail-
      room staff for mailing) on or about March 2, 2018, to
      be received by the Clerk . . . before the 30-day timeline
      (March 7, 2018).
(Emphasis supplied.) In paragraph 10 of the verified motion,
Jones alleged that the acts of the officials “denied [Jones]
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         Nebraska Supreme Court Advance Sheets
                  307 Nebraska Reports
                         STATE v. JONES
                        Cite as 307 Neb. 809

appellate review for the denial of his postconviction motion,
based upon a filing procedure and/or delay that was not
[Jones’] fault and out of his hands to control.” (Emphasis sup-
plied.) He further alleged in paragraph 9 that he was precluded
from taking an appeal “by neglect, mistake, or an irregularity
(official neglect or omission or state impediment) culpable on
the part of Nebraska State Penitentiary’s prison staff official
failure to submit [his] legal documents for mailing in a timely
fashion for filing.” (Emphasis supplied.) And in paragraph 6,
he alleged:
      [Jones] was effectively hindered and precluded from sub-
      mitting his said legal mail (with the Poverty Affidavit
      enclosed) through the prison mailroom, for reasons exud-
      ing culpability and negligence by prison staff, who failed
      to appropriately notify or inform [Jones] that the mail-
      room had returned said legal mail erroneously, to him,
      thereby denying [him] the opportunity to take rapid cor-
      rective measure(s) to re-send same said legal mail for fil-
      ing . . . (SEE Exhibit 1 and 5 attached herewith).
(Emphasis supplied.) (Emphasis omitted.)
   As we read the motion in its entirety, Jones attached
Michaud’s memorandum as support for his allegations that the
“delay . . . was not [Jones’] fault,” officials failed to submit
his documents “in a timely fashion for filing,” and he was
denied “the opportunity to take rapid corrective measure(s).”
The memorandum supports Jones’ numerous temporal allega-
tions of a delay caused by negligent acts of officials, and we
do not read his motion as adopting the memorandum’s unsub-
stantiated date of March 7, 2018. The motion’s narrative to
the effect that the exhibits are “imperatives” and “bona fide
proof, commensurating [Jones’] requested relief” indicates,
albeit colorfully, that Jones tendered the exhibits to support
the thrust of his motion regarding official irregularity causing
delay, rather than an endorsement of the March 7 date. The
memorandum corroborates Jones’ claim that he submitted his
mail containing the poverty affidavit to the prison mailroom
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         Nebraska Supreme Court Advance Sheets
                  307 Nebraska Reports
                         STATE v. JONES
                        Cite as 307 Neb. 809

on a date and in a proper manner and that it was delayed
by subsequent official negligence. Given the layers of hear-
say encompassed by the memorandum as attached, it is not
appropriate to resolve the trustworthiness of statements therein
about dates at this stage. See State v. Stricklin, 290 Neb. 542,
861 N.W.2d 367 (2015) (stating that when out-of-court state-
ment relates content of another out-of-court statement, there
must be independent hearsay exception for each statement).
The motion’s reference to the memorandum does not eclipse
Jones’ numerous explicit allegations under oath that he sub-
mitted his paperwork prior to the court deadline so as to reach
the court in a timely manner.
   As in our recent case, State v. Parnell, 301 Neb. 774, 919
N.W.2d 900 (2018), Jones’ claim of official negligence was
sufficient to obtain a hearing at which to submit proof to the
court of his allegation of official negligence. The district court
erred when it denied the motion without holding a hearing
at which Jones was able to offer proof of his allegations and
attempt to carry his burden to rebut the presumption that public
officers faithfully performed their official duties.

                        CONCLUSION
   The district court erred when it denied Jones’ motion to
vacate or modify the judgment without a hearing. We reiterate
that we do not adopt a prison delivery rule, see State v. Smith,
286 Neb. 77, 834 N.W.2d 799 (2013), and State v. Parmar,
255 Neb. 356, 586 N.W.2d 279 (1998), nor do we hold that a
delay in mailing necessarily results in an untimely filing. We
reverse the decision of the district court and remand the cause
for a hearing at which Jones may offer evidence that the neg-
ligence of prison officials at the Nebraska State Penitentiary
delayed the mailing of a poverty affidavit associated with his
prior appeal.
                                    Reversed and remanded.
   Freudenberg, J., not participating.
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