State v. Rodriguez ( 2014 )

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judgment against the tenant be granted. There was no evi-
dence establishing that the landlord was liable to the injured
party, who fell into an elevator car stationed “‘about a foot’”
below floor level.44 We directed that the cause be remanded
for further proceedings consistent with our opinion. Although
the facts in Kuhn were considerably different, the same prin-
ciple applies to the instant case. The focus has been on the
Tri-Par Investments rule. The circumstances dictate that we
likewise remand the cause for further proceedings consistent
with this opinion.
(d) Resolution
Under the circumstances of this case, we decline to direct
entry of partial summary judgment in favor of SFI. Rather, we
remand the cause for further proceedings.
VI. CONCLUSION
The judgment of the district court granting Carroll’s motion
for summary judgment and dismissing SFI’s complaint is
reversed, and the cause is remanded to the district court for
further proceedings consistent with this opinion.
R eversed and remanded for
further proceedings.
44
Id. at 432, 771 N.W.2d at 110.
State of Nebraska, appellee, v.
Francisco C. Rodriguez, appellant.
___ N.W.2d ___
Filed August 1, 2014. No. S-13-325.
1. Jurisdiction: Appeal and Error. Subject matter jurisdiction is a question of law
for the court, which requires an appellate court to reach a conclusion independent
of the lower court’s decision.
2. Statutes: Legislature: Intent: Appeal and Error. In construing a statute, an
appellate court’s objective is to determine and give effect to the legislative intent
of the enactment.
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3. Statutes: Appeal and Error. An appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are plain, direct, and
unambiguous.
4. ____: ____. It is not within an appellate court’s province to read a meaning into
a statute that is not there.
5. Pleas: Judgments: Collateral Attack. A motion to withdraw a plea is a collat-
eral attack, because it seeks modification of a judgment in a manner other than
by a proceeding in the original action.
6. Statutes: Legislature: Presumptions. The Legislature is presumed to know the
general condition surrounding the subject matter of a legislative enactment, and
it is presumed to know and contemplate the legal effect that accompanies the
language it employs to make effective the legislation.
7. Statutes: Legislature: Intent. The intent of the Legislature may be found
through its omission of words from a statute as well as its inclusion of words
in a statute.
8. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
Appeal from the District Court for Sarpy County: David
K. Arterburn, Judge. Reversed and remanded for further
proceedings.
Bilal A. Khaleeq and Daniel S. Reeker, of Khaleeq Law
Firm, L.L.C., for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Wright, J.
NATURE OF CASE
In 2013, Francisco C. Rodriguez moved to withdraw his
guilty plea and to vacate his 2004 conviction for attempted
possession of a controlled substance, a Class I misdemeanor.
He alleged that before entering a guilty plea in the 2004
proceedings, he did not receive the proper advisement under
Neb. Rev. Stat. § 29-1819.02(1) (Reissue 2008), and that he
currently faced immigration consequences from the result-
ing conviction.
Because Rodriguez moved to withdraw his plea after he
had completed his sentence of 2 years’ probation, the district
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court concluded that it did not have subject matter jurisdic-
tion. We conclude that the court did have jurisdiction, and
we reverse the judgment and remand the cause for further
proceedings.
SCOPE OF REVIEW
[1] Subject matter jurisdiction is a question of law for the
court, which requires an appellate court to reach a conclusion
independent of the lower court’s decision. State v. Clark, 278
Neb. 557, 772 N.W.2d 559 (2009).
FACTS
In January 2004, Rodriguez was charged by information
with possession of a controlled substance. As a result of a
plea agreement, the charge was reduced to attempted pos-
session of a controlled substance, a Class I misdemeanor
under Neb. Rev. Stat. §§ 28-201(4)(e) (Cum. Supp. 2004) and
28-416(3) (Supp. 2003), and Rodriguez agreed to enter a plea
of guilty.
On March 23, 2004, Rodriguez appeared before the district
court and received the following advisement about the immi-
gration consequences of a guilty plea:
But in addition to that, if a plea . . . is entered to a
felony, besides the maximum sentence, there are indi-
rect consequences that will follow you the rest of your
life. . . . If you are not a United States citizen, a plea of
guilty may subject you — to a felony may subject you
to deportation. There are any other number of those indi-
rect consequences that may occur if you plead guilty to
a felony.
After the advisement, Rodriguez entered a plea of guilty. The
court accepted the plea, adjudged Rodriguez guilty, and sen-
tenced him to 2 years’ probation.
In February 2013, Rodriguez moved to withdraw his guilty
plea and to vacate his conviction for attempted possession
of a controlled substance. He alleged that he had not been
properly advised of the immigration consequences of a guilty
plea, as required by § 29-1819.02(1), and that he had “recently
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discovered the immigration consequences of his plea when
[i]mmigration authorities took him into custody.” The record
does not reflect that the State raised any affirmative defenses
in answer to Rodriguez’ motion.
The district court concluded it did not have jurisdiction,
because Rodriguez filed his motion after his sentence had
been completed. It distinguished the case at bar from State
v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009), and
instead relied upon State v. Rodriguez-Torres, 275 Neb. 363,
746 N.W.2d 686 (2008). The court explained:
[T]he Supreme Court in Yos-Chiguil did not overrule
the holding of Rodriguez-Torres. The Court is, therefore,
left with strong language from Rodriguez-Torres which
states that Sec. 29-1819.02 “does not convey upon a
court jurisdiction” to vacate a judgment or withdraw a
plea “where a party has already completed his or her
sentence.” Therefore, the Court can only conclude that
the language of Rodriguez-Torres controls the present
case. Consequently, the Court must find that [Rodriguez’]
motion fails and must be overruled for lack of jurisdic-
tion. It appears to this Court that had the Supreme Court
in Yos-Chiguil found that the language of the statute
clearly authorized relief beyond the end of a defendant’s
sentence, it would have said so. The Court declined to
do so. Therefore, while there is an apparent discrepancy
between the two cases, this Court must follow the clear
precedent that exists and leave it to the appellate courts to
resolve the inconsistency.
Rodriguez timely appeals. We moved the case to our docket
pursuant to our statutory authority to regulate the dockets of
the appellate courts of this state and ordered oral argument.
See, Neb. Rev. Stat. § 24-1106(3) (Reissue 2008); Neb. Ct. R.
App. P. § 2-111(E)(5)(a) (rev. 2008).
ASSIGNMENT OF ERROR
Rodriguez assigns, restated, that the district court erred in
dismissing for lack of jurisdiction his motion to withdraw his
guilty plea and vacate his conviction.
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ANALYSIS
Jurisdiction Under § 29-1819.02
Rodriguez argues that the district court had jurisdiction
under § 29-1819.02 to consider the motion to withdraw his
guilty plea and to vacate his conviction. We set forth the rel-
evant provisions of § 29-1819.02:
(1) Prior to acceptance of a plea of guilty . . . to any
offense punishable as a crime under state law, except . . .
infractions . . . the court shall administer the following
advisement on the record to the defendant:
IF YOU ARE NOT A UNITED STATES CITIZEN,
YOU ARE HEREBY ADVISED THAT CONVICTION
OF THE OFFENSE FOR WHICH YOU HAVE BEEN
CHARGED MAY HAVE THE CONSEQUENCES OF
REMOVAL FROM THE UNITED STATES, OR DENIAL
OF NATURALIZATION PURSUANT TO THE LAWS
OF THE UNITED STATES.
(2) . . . If, on or after July 20, 2002, the court fails
to advise the defendant as required by this section and
the defendant shows that conviction of the offense to
which the defendant pleaded guilty . . . may have the
consequences for the defendant of removal from the
United States, or denial of naturalization pursuant to the
laws of the United States, the court, on the defendant’s
motion, shall vacate the judgment and permit the defend­
ant to withdraw the plea of guilty . . . and enter a plea of
not guilty. . . .
(3) With respect to pleas accepted prior to July 20,
2002, it is not the intent of the Legislature that a court’s
failure to provide the advisement required by subsection
(1) of this section should require the vacation of judg-
ment and withdrawal of the plea or constitute grounds for
finding a prior conviction invalid. Nothing in this section,
however, shall be deemed to inhibit a court, in the sound
exercise of its discretion, from vacating a judgment and
permitting a defendant to withdraw a plea.
[2-4] The question is whether a court lacks jurisdiction to
consider a motion filed pursuant to § 29-1819.02(2) if the
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defendant completed his or her sentence prior to filing the
motion. In interpreting § 29-1819.02(2), we are guided by the
following principles of statutory interpretation. In construing a
statute, our objective is to determine and give effect to the leg-
islative intent of the enactment. State v. Hernandez, 283 Neb.
423, 809 N.W.2d 279 (2012). An appellate court will not resort
to interpretation to ascertain the meaning of statutory words
which are plain, direct, and unambiguous. State v. Magallanes,
284 Neb. 871, 824 N.W.2d 696 (2012), cert. denied ___ U.S.
___, 133 S. Ct. 2359, 185 L. Ed. 2d 1082 (2013). “[I]t is not
within an appellate court’s province to read a meaning into a
statute that is not there.” State v. Nelson, 276 Neb. 997, 1003,
759 N.W.2d 260, 266 (2009).
We addressed the application of § 29-1819.02(2) in State
v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009). There,
we considered the scope of the relief provided in that subsec-
tion and rejected the argument that the relief was available
only on direct review. We explained that “there is no language
in the statute which would support such a limited construc-
tion, and indeed, the language permitting the procedure to
be initiated by motion would suggest otherwise.” Id. at 596,
772 N.W.2d at 579. Because the defendant in Yos-Chiguil had
not completed his sentence at the time he moved to withdraw
his plea, we declined to address “whether the remedy cre-
ated by that subsection would extend to a defendant who had
completed his or her sentence.” 278 Neb. at 597, 772 N.W.2d
at 579.
The district court in the instant case concluded that if
§ 29-1819.02(2) authorized relief after completion of a sen-
tence, we would have addressed this fact in Yos-Chiguil. But
in Yos-Chiguil, we did not reach this issue, because it was not
before us. Our failure to address whether jurisdiction existed
after completion of a sentence did not mean that we decided
the question in a manner that would be adverse to Rodriguez
in the case at bar.
But now we are presented with the precise question whether
the procedure in § 29-1819.02(2) may be utilized by a
defend­ nt who has completed his or her sentence. Rodriguez
a
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had completed his sentence of probation when he moved to
withdraw his plea and vacate his conviction. The immigration
consequences of his guilty plea did not arise until several
years after he had completed his sentence. Based on the fact
that Rodriguez had completed his sentence and in reliance
on State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d
686 (2008), the district court concluded it lacked jurisdic-
tion under § 29-1819.02 to consider Rodriguez’ motion.
The State similarly argues that Rodriguez-Torres mandates
a finding that jurisdiction under § 29-1819.02 is limited to
motions filed before completion of a defendant’s sentence.
We disagree.
In Rodriguez-Torres, this court considered whether Daniel T.
Rodriguez-Torres was allowed to bring a motion to withdraw
his 1997 plea after his sentence was completed. We discussed
whether § 29-1819.02 established a procedure by which he
could withdraw his plea under those specific facts. We held
that § 29-1819.02 failed to provide such a procedure and
that there was “no legislatively authorized procedure” allow-
ing Rodriguez-Torres to bring a motion to withdraw his plea,
because it was entered and accepted before July 20, 2002. See
Rodriguez-Torres, 275 Neb. at 368, 746 N.W.2d at 690. We
concluded that as a result, the lower court lacked jurisdiction
to address Rodriguez-Torres’ motion.
The State relies upon Rodriguez-Torres, as did the district
court, for the proposition that jurisdiction under § 29-1819.02
extends only to motions filed before a defendant has completed
his or her sentence. This argument is based on our state-
ment that
[i]n § 29-1819.02, the Legislature gives a court discre-
tion to vacate a judgment or withdraw a plea where a
court has failed to provide the advisement required for
pleas made on or after July 20, 2002. It does not, how-
ever, convey upon a court jurisdiction to do so where a
party has already completed his or her sentence.
See Rodriguez-Torres, 275 Neb. at 367, 746 N.W.2d at 689.
This is not the first time that the State has argued, based
solely on Rodriguez-Torres, that the relief provided in
§ 29-1819.02(2) must be limited. In State v. Yos-Chiguil,
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278 Neb. 591, 772 N.W.2d 574 (2009), the State alleged that
this same statement in Rodriguez-Torres supported a find-
ing that the relief provided in § 29-1819.02(2) was available
only on direct review. We rejected this argument, because it
“overstate[d] our holding in Rodriguez-Torres and overlook[ed]
a critical difference” between the facts in Rodriguez-Torres and
in the case then before us. See Yos-Chiguil, 278 Neb. at 595,
772 N.W.2d at 578. In Rodriguez-Torres, the plea sought to be
withdrawn was accepted in 1997, long before the enactment
of § 29-1819.02. The same was not true of the plea sought to
be withdrawn in Yos-Chiguil. Because of this distinction, we
held that the discussion of jurisdiction in Rodriguez-Torres
must be limited to pleas entered before July 20, 2002. See
Yos-Chiguil, supra.
But our focus on the fact that Rodriguez-Torres had com-
pleted his sentence was dicta. As we will explain below,
whether his sentence was completed was not crucial to our
decision that the court lacked jurisdiction to consider the
motion to withdraw his plea entered before July 20, 2002. And
to the extent Rodriguez-Torres stated that § 29-1819.02 does
not apply to a defendant who has already completed his or her
sentence, we conclude such statement is inconsistent with the
statutory language.
Section 29-1819.02(2) creates a statutory remedy for a
court’s failure to give the appropriate immigration advisement
before accepting a plea of guilty. The Legislature, however,
has limited this remedy to a defendant who seeks to withdraw
a plea which was accepted on or after July 20, 2002. See id.
As to such pleas, the plain language of § 29-1819.02(2) pro-
vides that where a defendant has shown that he or she did not
receive the proper advisement and that he or she may face
immigration consequences as a result of the plea, a court must
permit withdrawal of the plea. Where these requirements are
met, a court is required to grant relief. See id.
However, a defendant whose plea was accepted prior to
July 20, 2002, is not entitled to this statutory relief. Section
29-1819.02(3) does not create a procedure for withdrawal of a
plea accepted before July 20, 2002. Section 29-1819.02(3) is
a statement of the Legislature’s intent to impose a time-based
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limitation on the pleas that may be withdrawn due to the lack
of immigration advisement. “With respect to pleas accepted
prior to July 20, 2002, it is not the intent of the Legislature
that a court’s failure to provide the advisement required . . .
should require the vacation of judgment and withdrawal of the
plea . . . .” § 29-1819.02(3). This language clearly establishes
a legislative intent to limit this remedy to pleas accepted on or
after July 20, 2002. For a defendant whose plea was accepted
before July 20, 2002, the statute provides neither relief in the
form of withdrawal of a plea entered without the proper immi-
gration advisement nor a procedure for obtaining such relief.
See § 29-1819.02(3).
[5] A court’s jurisdiction under § 29-1819.02 to consider
motions seeking the statutory relief provided therein is also
limited to pleas accepted on or after July 20, 2002. When a
collateral attack is not raised in a recognized proceeding, a
district court lacks jurisdiction over the claim. See State v.
Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005). A motion to
withdraw a plea is a collateral attack, because it seeks modi-
fication of a judgment “in a manner other than by a proceed-
ing in the original action.” See State v. Keen, 272 Neb. 123,
127, 718 N.W.2d 494, 498 (2006). The only recognized pro-
cedure for seeking withdrawal of a plea under § 29-1819.02
is limited to pleas accepted on or after July 20, 2002. See
§ 29-1819.02(2).
Given this limitation, whether Rodriguez-Torres had com-
pleted his sentence was not relevant to our decision that we
lacked jurisdiction. Even if Rodriguez-Torres had moved to
withdraw his plea before completing his sentence, the court
would have lacked jurisdiction over his motion filed pursu-
ant to § 29-1819.02 and could not have granted him any
relief under the statute. Therefore, our statement in State v.
Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008), that
a court’s jurisdiction to withdraw a plea under § 29-1819.02 is
limited to a defendant whose sentence has not been completed
was dicta.
Unlike the situation in Rodriguez-Torres, the plea sought to
be withdrawn in the instant case was accepted after July 20,
2002, and the district court was not deprived of jurisdiction
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based on the date of the plea. Therefore, it is now neces-
sary for us to determine whether a court lacks jurisdiction
to consider a motion filed pursuant to § 29-1819.02(2) if
the defendant completed his or her sentence prior to fil-
ing the motion. We conclude that it does not. To the extent
that our statement in Rodriguez-Torres can be interpreted to
limit the relief provided in § 29-1819.02(2) to a defendant
whose sentence has not been completed, such interpretation is
expressly disapproved.
We have previously held that all a defendant must show to
withdraw a plea under § 29-1819.02 is (1) that the court failed
to give all or part of the advisement and (2) that the defendant
faces an immigration consequence which was not included in
the advisement given. State v. Medina-Liborio, 285 Neb. 626,
829 N.W.2d 96 (2013). See, also, State v. Mena-Rivera, 280
Neb. 948, 791 N.W.2d 613 (2010). We have also rejected the
argument that a defendant seeking to withdraw a plea pursu-
ant to § 29-1819.02 is required to show prejudice, because
“our case law ‘has made clear that only two elements must
be met before a defendant can withdraw his or her plea [pur-
suant to § 29-1819.02]; and prejudice is not one of them.’”
Medina-Liborio, 285 Neb. at 630, 829 N.W.2d at 99, quot-
ing Mena-Rivera, supra (alteration in original). For the same
reasons, we now conclude that it is not a required element of
§ 29-1819.02(2) that a defendant file such motion before his or
her sentence is completed.
Section 29-1819.02 imposes no requirement that a motion
to withdraw a plea must be filed before a defendant completes
his or her sentence. Statutory language is to be given its plain
and ordinary meaning. And it is well established that it is not
within the province of the courts to read a meaning into a stat-
ute that is not there or to read anything direct and plain out of
a statute. Medina-Liborio, supra.
[6,7] Had the Legislature intended to limit the relief pre-
scribed in § 29-1819.02(2) to those defendants who have
not completed their sentences, it would have included such
a limitation in the statute. We find it significant that the
Legislature did not do so. “[T]he ‘Legislature is presumed
to know the general condition surrounding the subject matter
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of the legislative enactment, and it is presumed to know and
contemplate the legal effect that accompanies the language
it employs to make effective the legislation.’” In re Invol.
Dissolution of Wiles Bros., 285 Neb. 920, 928, 830 N.W.2d
474, 481 (2013), quoting State ex rel. Wagner v. Gilbane Bldg.
Co., 276 Neb. 686, 757 N.W.2d 194 (2008). Furthermore, “the
intent of the Legislature may be found through its omission of
words from a statute as well as its inclusion of words in a stat-
ute.” See Lozier Corp. v. Douglas Cty. Bd. of Equal., 285 Neb.
705, 714, 829 N.W.2d 652, 660 (2013).
The lack of any requirement in § 29-1819.02 that a
defendant must not have completed his or her sentence is
in stark contrast to the requirements under the Nebraska
Postconviction Act, Neb. Rev. Stat. §§ 29-3001 to 29-3004
(Reissue 2008 & Cum. Supp. 2012). Only “[a] prisoner in cus-
tody under sentence” may file a motion under its provisions.
See § 29-3001(1). The fact that § 29-1819.02 does not include
a similar requirement or use the term “prisoner” is indicative
of the Legislature’s intent.
Notably, Neb. Rev. Stat. § 29-1819.03 (Reissue 2008), the
Legislature’s statement of its intent in enacting § 29-1819.02,
includes no language that would suggest the statutory relief
was meant to be available only to a defendant whose sentence
has not been completed. Because § 29-1819.03 pertains to the
same subject matter as § 29-1819.02, the two statutes “should
be conjunctively considered and construed to determine the
intent of the Legislature.” See State v. Hernandez, 283 Neb.
423, 427, 809 N.W.2d 279, 283 (2012).
As explained by the Legislature in § 29-1819.03, the prob-
lem sought to be remedied by § 29-1819.02 was a broad prob-
lem that existed “in many instances involving an individual
who is not a citizen of the United States and who is charged
with an offense punishable as a crime under state law.” The
Legislature created the immigration advisement as a specific
remedy to this problem. See § 29-1819.03. The broad objective
of the immigration advisement was “to promote fairness.” See
id. This objective would not be achieved by limiting the appli-
cation of § 29-1819.02 to those defendants whose sentences
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have not been completed and excluding those who had com-
pleted their sentences. Section 29-1819.02 was enacted to
address immigration consequences that could arise subsequent
to a plea of guilty regardless of whether the sentence imposed
as a result of the plea has been completed.
The dissent determines that the plain language of
§ 29-1819.02(2) limits its application to those individuals
whose sentences have not been completed, because the statute
uses the word “defendant.” But if the Legislature had meant
to limit the relief in § 29-1819.02(2) to only those individ­
uals still serving a sentence, it would have done so by a plain
statement to that effect and not by inclusion of a single word
that has no relationship to the completion of a sentence. As
commonly understood, the term “defendant” refers to an indi-
vidual “accused in a criminal proceeding” and does not indi-
cate whether that person has completed his or her sentence.
See Black’s Law Dictionary 508 (10th ed. 2014). A more
appropriate word to highlight whether or not an individual
has served his or her sentence would have been “prisoner,”
which the Legislature did not use. We note that the Legislature
did use “prisoner” in the Nebraska Postconviction Act. See
§ 29-3001(1).
Far from clearly indicating a limitation on relief, we inter-
pret the term “defendant” in § 29-1819.02(2) as identifying
to whom this subsection applies. Section 29-1819.02(2) does
not make generic reference to “defendants” or “a defendant.”
It refers to “the defendant.” See id. When used in such a
context, “the” modifies “defendant” to indicate that it “refers
to someone or something previously mentioned or clearly
understood from the context or the situation.” See Webster’s
Third New International Dictionary of the English Language,
Unabridged 2368 (1993). As such, in § 29-1819.02(2), “the
defendant” is a reference to a particular individual either “pre-
viously mentioned” in the statute or “clearly understood from
the context” and not an allusion to the current status of being
accused. There is only one person identifiable from the context
of § 29-1819.02(2)—the one moving to vacate his or her plea
in the criminal proceeding in which he or she was accused.
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For purposes of that criminal proceeding, the individual who
was accused is always “the defendant.” Therefore, we do not
agree that the Legislature’s use of “defendant” demonstrates an
intent to limit the application of § 29-1819.02(2).
We find nothing in § 29-1819.02 that requires a motion
to withdraw to be brought prior to completion of a sentence.
The only time-based limitation imposed by the statute is that
the plea sought to be withdrawn must have been accepted
on or after July 20, 2002. See § 29-1819.02(2). Thus, we
conclude that as to pleas entered on or after July 20, 2002,
§ 29-1819.02 gives a court jurisdiction to consider a motion
to withdraw such plea or vacate the judgment regardless of
whether a defendant has completed his or her sentence. The
district court erred in dismissing Rodriguez’ motion for lack
of jurisdiction.
Common-Law P rocedure
[8] Rodriguez argues that the district court had jurisdiction
over his motion under the common-law procedure for with-
drawing a plea, as set forth in State v. Gonzalez, 285 Neb.
940, 830 N.W.2d 504 (2013). Because we conclude that the
court had jurisdiction to consider Rodriguez’ motion under
§ 29-1819.02, we do not consider whether there was alternative
jurisdiction under a common-law procedure for withdrawing a
plea. An appellate court is not obligated to engage in an analy-
sis that is not necessary to adjudicate the case and controversy
before it. Holdsworth v. Greenwood Farmers Co-op, 286 Neb.
49, 835 N.W.2d 30 (2013).
CONCLUSION
For the foregoing reasons, we reverse the judgment of the
district court dismissing Rodriguez’ motion and remand the
cause for further proceedings.
R eversed and remanded for
further proceedings.
Cassel, J., concurring.
I write separately only to make plain an important matter
inherent in the court’s opinion. There is no excuse for failing to
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administer the statutory advisement.1 It takes only a moment.
The wording is succinct. The statute specifies the precise lan-
guage. Judges have no reason to improvise or summarize. The
“cost” of timely giving advisements is miniscule compared
to the “benefit” of avoiding plea withdrawals years after the
resulting judgments have been fully executed. Judges should
fully and timely comply with the statutory mandate. And the
practicing bar should ensure that judges do so.
1
See Neb. Rev. Stat. § 29-1819.02(1) (Reissue 2008).
Connolly, J., dissenting.
I disagree with the majority’s conclusion that under Neb.
Rev. Stat. § 29-1819.02 (Reissue 2008), a person who has
served his sentence can obtain an order permitting him to
withdraw a plea and plead not guilty. Regardless of when the
person entered the plea of guilty or no contest, § 29-1819.02
does not provide a remedy after the sentence is served. At that
point, it’s over.
To recap the provisions of § 29-1819.02, subsection (1) sets
out the immigration advisement that a trial court must give to
defendants before accepting a plea of guilty or no contest. The
advisement must inform a defendant that if he or she is not a
U.S. citizen, a conviction for the charged offense could have
the immigration consequence of removal from the country or
denial of naturalization.
Subsection (2) provides a remedy for persons who entered an
unadvised plea on or after July 20, 2002, if the person shows
that he or she faces one of the unadvised immigration conse-
quences.1 In that circumstance, “the court, on the defendant’s
motion, shall vacate the judgment and permit the defendant to
withdraw the plea of guilty or nolo contendere and enter a plea
of not guilty.”2
1
See State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).
2
§ 29-1819.02(2).
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Subsection (3) provides that this statutory remedy is
unavailable for persons who entered a plea before July 20,
2002. But it also provides that “[n]othing in this section . . .
shall be deemed to inhibit a court, in the sound exercise of its
discretion, from vacating a judgment and permitting a defend­
ant to withdraw a plea.”3
The first case we decided under § 29-1819.02 was State v.
Rodriguez-Torres.4 I agree that we later clarified its holding,
but I disagree that our statements were dicta. There, the mov-
ant entered his pleas before July 2002, but he had completely
served his sentence. We quoted the language of subsection (3)
and recognized that § 29-1819.02 gives a court discretion “to
vacate a judgment or withdraw a plea.”5 But we held that nei-
ther § 29-1819.02 nor any other statute creates a procedure for
vacating a judgment and withdrawing a plea after a person has
already served a sentence for a criminal conviction. Later, in
State v. Yos-Chiguil,6 we clarified that Rodriguez-Torres is lim-
ited to subsection (3), for unadvised pleas entered before July
20, 2002. But we reaffirmed our holding in Rodriguez-Torres,
as clarified, in State v. Chiroy Osorio.7 So those statements are
not dicta, even if they do not apply to persons who entered
unadvised pleas on or after July 20, 2002.
In Yos-Chiguil, we also clarified that Rodriguez-Torres did
not decide whether a common-law remedy exists to withdraw a
plea after a person has already served a sentence, because the
issue was not presented.8 We rejected the State’s argument that
the remedy under § 29-1819.02(2) was not available because
the Court of Appeals had dismissed the defendant’s direct
appeal. We stated that “it is the failure to give the required
advisement and the occurrence of an immigration consequence
of which the defendant was not advised which trigger the
3
§ 29-1819.02(3).
4
State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008).
5
Id. at 367, 746 N.W.2d at 689.
6
Yos-Chiguil, supra note 1.
7
State v. Chiroy Osorio, 286 Neb. 384, 837 N.W.2d 66 (2013).
8
See Yos-Chiguil, supra note 1.
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statutory remedy in § 29-1819.02(2).”9 And by holding that
the defendant could seek the remedy, we implicitly determined
that § 29-1819.02(2) authorizes a collateral attack on a final
judgment—at least for petitioners still serving a sentence.10
But in Yos-Chiguil, we specifically declined to decide the issue
presented here: “In this case, [the defendant] was serving his
sentence at the time he filed his motion to withdraw his plea
pursuant to § 29-1819.02(2). We therefore need not decide
whether the remedy created by that subsection would extend to
a defendant who had completed his or her sentence.”11
In State v. Gonzalez,12 we recognized a limited common-law
remedy for collaterally attacking a final judgment and with-
drawing a plea. But the trial court had given the immigration
advisement to the petitioner, so she was not entitled to relief
under § 29-1819.02(2). Moreover, she was still serving a sen-
tence of probation when she filed her motion. So we were not
presented with the issue whether the remedy under subsection
(2) is available to a petitioner who did not receive the advise-
ment but has served his or her sentence.
But the majority’s conclusion that the remedy under
§ 29-1819.02(2) applies to a person who has served a sentence
is contrary to the statute’s plain language. To repeat, under
§ 29-1819.02(2), if a defendant shows that he or she entered
an unadvised plea on or after July 20, 2002, and that he or she
faces one of the unadvised immigration consequences, “the
court, on the defendant’s motion, shall vacate the judgment
and permit the defendant to withdraw the plea of guilty or nolo
contendere and enter a plea of not guilty.” The statute unam-
biguously limits the procedure to a criminal “defendant.”
9
Id. at 596, 772 N.W.2d at 579. See, also, State v. Medina-Liborio, 285
Neb. 626, 829 N.W.2d 96 (2013) (citing Yos-Chiguil, supra note 1, and
State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010)).
10
But see State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013) (citing
our decisions in Yos-Chiguil, supra note 1, and State v. Kluge, 198 Neb.
115, 251 N.W.2d 737 (1977), disapproved on other grounds, State v.
Minshall, 227 Neb. 210, 416 N.W.2d 585 (1987)).
11
Yos-Chiguil, supra note 1, 278 Neb. at 596-97, 772 N.W.2d at 579.
12
See Gonzalez, supra note 10.
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It is true that by permitting collateral attacks under
§ 29-1819.02(2), we have not strictly construed the term
“defendant,” and we have probably been generous in the stat-
ute’s application. A person convicted of a crime under a final
judgment is obviously no longer a “defendant” in the literal
sense of being a person accused of a crime.13 But our expanded
use of the term to include incarcerated persons who are col-
laterally attacking a final judgment is consistent with the way
that we have used the term “defendant” in postconviction cases
to include those serving sentences. It is also consistent with
the Legislature’s intent to provide fairness to individuals who
entered unadvised pleas.
But even under the most generous interpretation of the term
“defendant,” Rodriguez has served his time and is no longer a
defendant. Moreover, the remedy under § 29-1819.02(2) has
three conjunctive parts. If a movant proves a claim for relief,
a court must (1) vacate the judgment, (2) permit the defendant
to withdraw the plea of guilty or no contest, and (3) permit the
defendant to enter a plea of not guilty. But how can a court
permit a person to enter a plea of not guilty when he or she has
already served his or her entire sentence? The underlying crim-
inal proceeding is done. It’s over. Obviously, double jeopardy
prevents the State from recharging the person with a crime for
which he or she has already been punished.14 In contrast, the
double jeopardy issue does not arise if the movant is still serv-
ing his or her sentence. Even if a conviction is challenged in
a collateral attack, double jeopardy does not preclude a retrial
if the defendant’s conviction was set aside because of an error
in the proceedings leading to the conviction.15 But because the
statute contemplates the availability of a new trial, it makes no
sense to conclude that the Legislature intended the statutory
remedy to apply to a person who has completely served his or
her sentence.
13
See Black’s Law Dictionary 508 (10th ed. 2014).
14
See, e.g., State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
15
See United States v. Tateo, 377 U.S. 463, 84 S. Ct. 1587, 12 L. Ed. 2d 448
(1964).
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Nor do I believe the common-law remedy that we recog-
nized in Gonzalez16 is available here. There, we recognized
a limited common-law procedure for collaterally attacking
a final judgment and withdrawing a plea if two conditions
are met:
(1) [T]he [Nebraska Postconviction] Act is not, and never
was, available as a means of asserting the ground or
grounds justifying withdrawing the plea and (2) a consti-
tutional right is at issue. In sum, this common-law proce-
dure exists to safeguard a defendant’s rights in the very
rare circumstance where due process principles require a
forum for the vindication of a constitutional right and no
other forum is provided by Nebraska law.17
We have permitted a person who has served his sentence
to seek relief under the common-law procedure.18 But here,
Rodriguez has not shown that a constitutional right is at
stake. He claims that the court’s incorrect advisement under
§ 29-1819.02(1) prevented him from knowingly, intelligently,
and voluntarily waiving his rights (presumably, his trial rights).
The State, however, correctly argues that we have stated a
trial court’s failure to warn a defendant of immigration conse-
quences does not implicate a constitutional right.19 Rodriguez
cites no authority to support his bare assertion to the contrary.
I conclude that because Rodriguez has no remedy available
under § 29-1819.02(2) and has failed to show that a constitu-
tional right is at stake under the common-law procedure, the
judgment of the district court should be affirmed.
Heavican, C.J., joins in this dissent.
16
See Gonzalez, supra note 10.
17
Id. at 949-50, 830 N.W.2d at 511. Accord State v. Yuma, 286 Neb. 244, 835
N.W.2d 679 (2013).
18
See Yuma, supra note 17.
19
See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011) (citing
Smith v. State, 287 Ga. 391, 697 S.E.2d 177 (2010)). See, also, Padilla v.
Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).