Wednesday, September 28, 2005

NCA upholds consecutive sentences for 2 counts of sexual assault; defendant had pled guilty but attorney did not appeal. NCA disapproves of Trial court's limiting direct appeal to sentencing issues only; even though the defendant did not appeal this limitation in the trial cour's order, the appeal court finds that it could have found plain error. However record was sufficient to determine other issues of counsel effectivenessState v. Belk, 14 Neb. App. 53 Filed September 27, 2005. No. A-04-1141. The district court for Lancaster County, Nebraska, granted Joshua Belk's motion for postconviction relief, granting Belk the right to a new direct appeal. Belk has now appealed his convictions and sentences stemming from his pleas of no contest to two counts of sexual assault of a child. For the reasons set forth herein, we affirm Belk's convictions and sentences. The court concluded that Belk's trial attorney "failed to act reasonably regarding [Belk's] right to file an appeal because he did not file the requested appeal re excessive sentence and he did not provide information to [Belk] regarding [Belk's] right to request in forma pauperis status regarding an appeal." Therefore, the court held that Belk's "motion for postconviction relief is sustained for the reasons set forth above" and ordered that "[Belk] is hereby granted a new direct appeal re the issue of excessive sentence." The district court appointed the Lancaster County public defender's office to represent Belk in his direct appeal, and Belk has timely appealed to this court.the district court's order granting Belk's motion for postconviction relief limited the direct appeal to "the issue of excessive sentence." Belk has not appealed from the district court's order granting his motion for postconviction relief. We note that since postconviction proceedings are special proceedings, and because the district court's decision affected a substantial right of Belk's, the district court's order was a final and therefore appealable order. See State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998). Despite the fact that Belk failed to appeal from the district court's order limiting the issues of his direct appeal to the matter of excessive sentences, we note that an appellate court always reserves the right to note plain error which was not complained of at trial. State v. Davlin, supra. Plain error exists where there is error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. Id. The Nebraska Supreme Court has previously noted the following regarding the district court's power to grant postconviction relief: Although the district court has the implicit authority to grant a new direct appeal in a postconviction action, we are unable to find any authority that grants a district court the power to limit the issues of that direct appeal, and we determine that in a postconviction action, the district court does not possess the power to limit the issues when it grants a new direct appeal. Therefore, we find that it was plain error for the district court to limit the direct appeal granted to Belk to the issue of excessive sentences. If a judgment is entered without jurisdiction of the person or the subject matter or in excess of the court's power, it is void and may be collaterally impeached. In re Interest of William G., 256 Neb. 788, 592 N.W.2d 499 (1999). Because that portion of the district court's order limiting Belk's direct appeal was in excess of the court's power, it is void. As a result, Belk is entitled to a full direct appeal. After examining the record and each of Belk's allegations of ineffective assistance of counsel, it is clear to us that the record before us is not sufficient to properly address his allegations.

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