An Impeachable Offense

© 2008 Last Updated: 09/30/2008

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Nebraskans understand manure. In fact, you could say we are connoisseurs of the stuff. Sometimes we can't avoid it. When it comes to manure, you can fool some Nebraskans some of the time, but you can't fool everybody all of the time. After the Nebraska Supreme Court delivered its recent decision in Poindexter v. Houston, 275 Neb 863 (June 13, 2008), you couldn't help but smell what that was made of.

Poindexter had filed a Petition for a Writ of Habeas Corpus claiming he had completed his sentence and should be released from the custody of the State; just because everybody else was. It was not the best argument he could have made. Nevertheless, the Nebraska Supreme Court's jurisdiction in a Habeas Corpus action is limited. A person cannot argue that he has a right to different conditions of confinement in a state Petition for a Writ of Habeas Corpus. Pruitt v. Parratt, 1 97 Neb 854 (1977). Habeas Corpus only deals with invalid custody. Offenders on parole are still in the custody of the State. Parole eligibility and release on parole only involve the conditions of an offender's confinement. Poindexter's claim that he was eligible for parole and should have been released on parole could not be raised in a Petition for a Writ of Habeas Corpus.

Despite the limitations of the Constitution and statutes, there seems to be no limit to the current Supreme Court's power; just ask them. Instead of finding that the Court had no jurisdiction over Poindexter's claims regarding his parole eligibility and release on parole the Court dropped a whopper that any sixth grader could smell.

Today in 2008 the Nebraska Supreme Court tells us that a life sentence is actually an indeterminate sentence with both a minimum sentence and a maximum sentence. A close look at their reasoning reveals what really smells. The Court says:

In State v. McMillian [186 Neb 784 (1971)] and State v. Rhodes [187 Neb 332 (1971)] we impliedly held that flat sentences do have minimum terms for purposes of the 1969 version of §83-1,110. The appellants in those cases had received flat sentences of 5 years and 3 years respectively after pleading guilty. (In 1971, flat sentences were not converted to indeterminate sentences by operation of law.) The appellants believed their flat sentences made them ineligible for parole. They sought postconviction relief.... We decided that under the 1969 statute, "the [appellants] are eligible for release on parole upon completion of their minimum terms less reductions."

And, ready now, inhale deeply....

In other words, when a court imposed a flat sentence, we interpreted the defendant's "minimum term" to mean the flat sentence imposed by the court.

Poindexter, 275 Neb at 867-68

Nothing could be further from the truth. In fact, the Court's statement is directly in violation of the statutory definition of "minimum term" in §83-170(5). From that pile the Court says that Poindexter's flat life sentence is, therefore, the "minimum term" of his flat sentence. Yeah, thats got an aroma.

The Nebraska Supreme Court never "impliedly held" any such thing about flat sentences in State v. Rhodes or State v. McMillian. In State v. Thompson, 189 Neb 115 (1972), the Nebraska Supreme Court said that the "minimum term" of a flat sentence was the "minimum sentence" provided by law as defined under Neb. Rev.Stat.§83-170(5)(Cumm. Supp. 1969). In the years since 1972 the Court has said so on many occasions, the last time in 1999.

In State v. Rhodes, Rhodes was convicted in 1966 on a "check charge." He was returned to California to finish a sentence there. In 1970, Rhodes was paroled from California to begin his sentence in Nebraska. Convicted in 1966, Rhodes' parole eligibility was controlled by Neb.Rev.Stat. §29-2623 (Reissue 1964), not §83-1,110, the 1969 statute. Under §29-2623 (1964), Rhodes was eligible for parole when he completed "the minimum term fixed by law." A "check charge" for either forgery (§28-601(1)(c) (Reissue 1964)) or insufficient funds (§28-1212 (Reissue 1964)) each had a minimum term "not less than 1 year." Therefore, Rhodes should have been eligible for parole after serving his 1 year "minimum term," less any reductions he was entitled to.

Under the 1969 statutes Rhodes' "minimum term" would certainly not be the "flat" 3 year sentence imposed by the sentencing court. In 1969, the phrase "minimum term" was defined in Neb.Rev.Stat. §83-170(5), which said:

Minimum term shall mean the minimum sentence provided by law or the minimum sentence imposed by the court, whichever is longer.

Therefore, Rhodes' "minimum term" would still be the one year "minimum sentence provided by law" just as it was under §29-2623 (1964). The Poindexter Court ignores the statutory difference between "sentence" (imposed by a court) and "term" (calculated by prison officials).

If the Supreme Court had "impliedly held" that Rhodes' 3 year sentence was the "minimum term," Rhodes would have to serve twice as much time to become eligible. Depending on his "good-time" from §83-1,107, Rhodes would serve between 23 months to 29 months to be eligible, doubling his time. Obviously, applying the 1969 change doubling Rhodes' time to reach parole eligibility would be a violation of the Ex Post Facto prohibition of the Constitutions (both State and Federal).

The Rhodes decision doesn't say when he was eligible for parole. But the Poindexter Court "impliedly held" that it was OK to violate both the statutory definition of "minimum term" and the Constitutions' Ex Post Facto prohibition. Did you inhale that fragrance? Is that the fruitiness of stupidity, or the woody smell of corruption? It is so hard to tell when it is packaged in a black robe with the aura of authority. Wouldn't it be more reasonable to assume the Rhodes Court meant to apply the proper statutory definition of "minimum term" to find that Rhodes was eligible for parole under §83-1,110? Neb.Rev.Stat. §83-1,110(1)(Cum.Supp. 1969) did not define "minimum term," it simply said:

Every committed offender shall be eligible for release on parole upon completion of his minimum term less reductions granted in accordance with this act, or, if there is no minimum, at any time.

Ah, did you catch that nuance in the subtle bouquet? The Poindexter Court says the flat sentence is the minimum term. Therefore, every sentence, flat or not, has a minimum term. So what could that phrase in §83-1,110, "or if there is no minimum, at any time," mean? Oops. It is a familiar rule of statutory construction that no sentence, clause, or word should be rejected as meaningless or superfluous if it can be avoided. In re Woltemath, 268 Neb 33 (2004). The Poindexter Court is trying rewrite that phrase out of the law. Now that smells!

In State v. McMillian, both McMillian and an offender named Brock sought postconviction relief. The decision certainly does not hold, impliedly or otherwise, that McMillian or Brock's minimum term was their 5 year "flat" sentence. Instead the case is silent about the process of law that was due to them; the process of law the Poindexter Court is trying to destroy.

The McMillian decision is massive in its scope and judicial erudition. It requires only 4 sentences to dispose of the case; the last of which says: "The judgment denying post conviction relief is affirmed." (I hope the Court will not "impliedly hold" that sarcasm is a felony offense.) Unlike Rhodes, the case does not say when McMillian or Brock were convicted or sentenced. If it was prior to the 1969 enactment of §83-1,110, their "minimum terms" should be exactly like Rhodes', the minimum term provided by law.

For the sake of completeness, let's assume both McMillian and Brock were convicted after 1969 and §83-1,110 applies to them. That also means the definition of "minimum term" from §83-170(5) applies to them. Therefore, assuming McMillian and Brock's offenses had "minimum sentences provided by law," their "minimum terms" would be "the minimum sentence provided by law" because the sentencing court did not impose a minimum sentence. There is absolutely no "implying" that McMillian and Brock's minimum terms were the 5 year sentences imposed by the sentencing court. To "impliedly hold" that would eliminate the plain language of §83-170(5). McMillian and Brock were both convicted of burglary which in 1969 had a minimum sentence of 1 year; see, Neb.Rev.Stat. §28-532 (Reissue 1964). Consequently, both McMillian and Brock would be eligible for parole after only 1 year less good-time reductions, not the 5 years less reductions that the Poindexter Court is "implying." There is no mistaking that odor.

While the Poindexter Court's statement that, "In 1971, flat sentences were not converted to indeterminate sentences by operation of law," is technically correct, it says nothing about parole eligibility which comes from minimum "terms." In 1971, by operation of law even flat sentences had minimum terms by operation of §83-170(5). In addition to State v. Thompson, supra, other Nebraska Supreme Court decisions in the 1970's discussed this.

In State v. Suggett, 189 Neb 714, 720 (1973), discusses the distinction between Neb.Rev.Stat. §83-1,105, the indeterminate sentencing statute, and §83-170. The Court decided §83-1,105 was designed to apply to courts imposing sentences and §83-170 was designed to be used as a guideline for the Board of Parole. In other words, Courts impose sentences and the Board of Parole (and the Director of Corrections under §83-1,109) calculate the "minimum term" under §83-170(5).

The Court understood this back then. They repeated it in State v. Urbano, 256 Neb 194, 214 (1999).

Before 1993, the maximum term of imprisonment served by a defendant under a determinate sentence was considered to be the sentence pronounced by the Court. A defendant's release from incarceration might, however, occur before he or she served the amount of time specified in a determinate sentence, because the "minimum" term of a determinate sentence was considered to be the minimum term provided by law.
The Court cited to State v. Hedglin, 192 Neb 545 (1974) and State v. Blazek, 199 Neb 466 (1977). But note the substitution of the word "term" for "sentence;" "minimum term provided by law" rather than "minimum sentence provided by law," as in the definition in §83-170. This seems to be a contagious disease. Former Assistant Attorney General, now Federal District Court Judge, Laurie Smith Camp, wrote an opinion for the Attorney General (#98013, dated 2/17/98) about determinate sentences in which she misquotes an Appeals Court case by making the same substitution. While discussing determinate sentences in State v. DuBray, 5 Neb.App. 496, 500-01 (Neb.App. 1997) the Court of Appeals says, ". . .or that a separate minimum sentence must be imposed." Ms. Camp's opinion changes that to, "...or that there must be a minimum term imposed."

State v. Hedglin and State v. Blazek are significant to the Poindexter decision. Both cases say that under Nebraska's sentencing statutes, all sentences are indeterminate sentences, except sentences of life imprisonment. What that means is, for Poindexter's first degree murder conviction, there is no "minimum sentence" of life imprisonment.

Nebraska courts' power to impose sentences is limited by Article V, §9 to, "…pass such sentence as may be prescribed by law." That means the Legislature has to make a statute authorizing the penalty that courts can then impose. The power to impose any "minimum sentence" comes from the Nebraska sentencing statutes; §83-1,105 in 1971, up through the current §29-2204 & 83-1,105.01; but all these statutes do not apply "when a term of life is required by law." The only crimes for which a life sentence is required by law (are now) the Class IA felonies, which includes first degree murder, Poindexter's offense. All the sentencing statutes specifically exempt first degree murder sentences from the court's power to impose indeterminate sentences. Simply put no Nebraska court has the power to impose a minimum sentence of life imprisonment for first degree murder. The law does not provide a minimum sentence for first degree murder. And, despite what the Poindexter Court has left us, no Court has held, impliedly or otherwise, differently. Nor can they.

For the unanimous Poindexter Court to rule they have powers not provided to them under the Constitution or statutes violates their oath to uphold the Constitution of the State, required under Article XV, §1 of the Nebraska Constitution. That is an impeachable felony offense under Neb.Rev. Stat. §11-101.02 (Reissue 1997). They could also be removed from office under Article V, §30(1)(a),(b) or (f). The judges seem to be a part of a conspiracy to rewrite the Constitution, laws and history of this State. The Poindexter decision is only the visible tip of this conspiracy iceberg. Stay tuned.

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