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NE Supreme Court Rules Against Sex Offender Law

December 11, 2009

JournalStar.com : Nebraska Supreme Court rules in favor of sex offender

Omaha – The Nebraska Supreme Court has reversed an order calling for a man convicted more than 10 years ago to re-register as a sex offender.

John Ways Jr. was convicted of pandering in 1996 and served two years in prison. Last year, Ways’ was found guilty of contempt of court for failing to register as a sex offender, as a judge had ordered in 2002. Lancaster County District Judge Robert Otte determined that because Ways had spent less than five years on the registry and had been ordered to spend 10, Ways would have to re-register and remain registered until early 2014.

But in its ruling Friday, the Nebraska Supreme Court said the lower court didn’t have the authority to determine the duration of Ways’ registration.

S-09-0017, State v. John S. Ways, Jr. (Appellant). View Decision here.

Proceedings: The Appellant pleaded guilty to criminal contempt as part of a plea agreement. He was sentenced to 54 days in the county jail with credit for 76 days and a $1000 fine. The trial court also re-notified Appellant of his obligation to register as a sexual offender under the Nebraska Sex Offender Registration Act (SORA). Due to his failure to previously register under the SORA, the trial court informed Appellant that his registration under the SORA would not end until April 9, 2014, subject to any modifications to the SORA.

Issues: The district court erred in (1) requiring Appellant to register as a sex offender after June 24, 2008; (2) amending Appellant’s registration as it lacked jurisdiction and was a collateral attack of a prior district court order.

State of Nebraska, appellee, v.
John S. Ways, Jr., appellant. N.W.2d

Filed December 11, 2009. No. S-09-017.

Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

Because we find it to be dispositive, we first address Ways’ assertion that the portion of the December 4, 2008, order regarding Ways’ SORA obligations in the criminal contempt case was an improper exercise of authority by the district court. We conclude that the district court lacked authority in the criminal contempt case to address issues regarding SORA registration requirements arising from Ways’ conviction in the separate earlier criminal case of pandering.

The present case regarding criminal contempt was a separate action and not part of the action in which Ways was convicted of pandering. The information in the present case, filed in late October 2008, charged Ways with two counts: failure to register under SORA and criminal contempt for disobeying the January 31, 2002, order in the pandering case ordering Ways to register. The information put Ways on notice of the charges against him. See State v. Kennedy, 251 Neb. 337, 557 N.W.2d 33 (1996) (information setting forth specific acts constituting offense gives adequate notice to defendant). The count of failure to register was dismissed as part of a plea agreement, and Ways pled guilty to criminal contempt. Notwithstanding the limited scope of the present case, in its sentencing order of December 4, 2008, the court exceeded the sentencing necessary to dispose of the criminal contempt identified in the information and addressed issues regarding registration requirements related to the pandering case.

In this criminal contempt case, we conclude that the district court was without authority to enter an order regarding the duration of Ways’ SORA registration requirement, which was a consequence of his conviction for pandering in a separate criminal action. We therefore vacate that portion of the sentencing order of December 4, 2008, which orders Ways to register until at least April 9, 2014, and affirm the remainder of the sentencing order.
Affirmed in part, and in part vacated. Heavican, C.J., not participating.

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