State v. Chojolan ( 2014 )

Nebraska Advance Sheets
760 288 NEBRASKA REPORTS
State of Nebraska, appellee, v.
Julio Chojolan, appellant.
___ N.W.2d ___
Filed August 8, 2014. No. S-12-1113.
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.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed in part, and in part reversed
and remanded.
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.
Miller-Lerman, J.
NATURE OF CASE
The issues presented in this appeal surround the failures
of defense counsel and the court to advise a defendant of the
immigration consequences of a plea of guilty or nolo conten-
dere prior to the acceptance of the plea.
Julio Chojolan appeals the October 24, 2012, order of the
district court for Douglas County in which the court dismissed
his motion to withdraw his guilty plea in a 2006 conviction for
attempted possession of a controlled substance. With respect
to defense counsel’s failure to advise, the district court con-
cluded that the principles recognized in Padilla v. Kentucky,
559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010),
did not apply retroactively to Chojolan. This ruling was not
error with respect to the court’s failure to advise. The dis-
trict court reasoned that it lacked jurisdiction to consider the
motion under the immigration advisement statute, Neb. Rev.
Nebraska Advance Sheets
STATE v. CHOJOLAN 761
Cite as 288 Neb. 760Stat. § 29-1819.02(2) (Reissue 2008), because Chojolan had
already completed his sentence. We conclude that the motion
is authorized under § 29-1819.02(2) even though Chojolan
had completed his sentence. We therefore affirm the district
court’s ruling regarding defense counsel’s advisements, but
we reverse the district court’s dismissal of Chojolan’s motion
brought under § 29-1819.02(2) and remand the cause for fur-
ther proceedings.
STATEMENT OF FACTS
In November 2006, Chojolan pled guilty to attempted pos-
session of a controlled substance, a Class I misdemeanor. He
was sentenced to imprisonment for 30 days and was given
credit for time served of 30 days. The record of the plea hear-
ing shows that Chojolan was not informed by the court of any
potential immigration consequences stemming from his plea
and conviction.
On August 7, 2012, Chojolan filed a “Motion to Withdraw
Plea of Guilty and Vacate Conviction,” in which he sought to
withdraw his 2006 plea. He alleged that neither his counsel nor
the court had advised him of the immigration consequences
of his plea prior to entry of the plea. He also alleged that he
was subject to removal proceedings and denial of naturaliza-
tion under federal immigration law. Chojolan asserted that the
court had jurisdiction based on common-law remedies that
allow withdrawal of a plea and vacation of a conviction when
trial counsel has failed to advise a defendant of immigration
consequences. Chojolan also asserted that the district court
had jurisdiction to hear his motion “based on Neb. Rev. Stat.
[§] 29-1819.02 and the fact that the Court did not advise him
of the immigration consequences of his plea prior to accepting
his plea.” Section 29-1819.02(2) provides:
Upon request, the court shall allow the defendant addi-
tional time to consider the appropriateness of the plea
in light of the advisement as described in this section.
If, on or after July 20, 2002, the court fails to advise the
defendant as required by this section and the defend­
ant shows that conviction of the offense to which the
Nebraska Advance Sheets
762 288 NEBRASKA REPORTS
defendant pleaded guilty or nolo contendere 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 or nolo contendere
and enter a plea of not guilty. Absent a record that the
court provided the advisement required by this section,
the defendant shall be presumed not to have received the
required advisement.
On October 2, 2012, the court held a hearing on Chojolan’s
motion and the State’s motion to dismiss the motion. The State
asserted in its motion, inter alia, that the court lacked jurisdic-
tion to hear Chojolan’s motion because Chojolan had com-
pleted his sentence and was no longer in the State’s custody.
At the hearing, Chojolan offered two exhibits—a transcript
of the proceedings in the 2006 plea-based conviction and a
“Notice of Hearing in Removal Proceedings” issued by the
immigration court in Omaha, Nebraska. The court admitted
both exhibits with the understanding that the State objected
based on its belief that the court did not have jurisdiction of
this matter.
In an order filed October 24, 2012, the district court dis-
missed Chojolan’s motion for lack of jurisdiction. The court
found that the decision in Padilla v. Kentucky, 559 U.S. 356,
130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), holding that
defense counsel has a duty to advise clients of potential immi-
gration consequences of a guilty plea and conviction, did not
apply retroactively to Chojolan’s 2006 plea and conviction.
The court further concluded that it did not have jurisdiction
under § 29-1819.02(2) “as a result of [Chojolan’s] not currently
being in custody, on parole or on probation.”
Chojolan appeals.
ASSIGNMENT OF ERROR
Chojolan claims that the court erred when it determined
that it lacked jurisdiction to consider his motion to withdraw
his guilty plea. He argues both that Padilla should be applied
Nebraska Advance Sheets
STATE v. CHOJOLAN 763
Cite as 288 Neb. 760retroactively and that § 29-1819.02 gave the court jurisdiction
to hear his motion.
STANDARD 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. Rodriguez,
ante p. 714, ___ N.W.2d ___ (2014).
ANALYSIS
Padilla Does Not Apply Retroactively to
Chojolan’s 2006 Plea and Conviction.
Chojolan asserts that Padilla should apply retroactively to
his claim that he received ineffective assistance when counsel
failed to advise him of the potential immigration consequences
of his plea and conviction in 2006. We conclude that the
district court did not err when it determined that Padilla did
not apply.
In prior cases, we have noted that in Chaidez v. U.S., ___
U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), the U.S.
Supreme Court held that because Padilla, which was decided
in 2010, announced a new rule, those defendants whose con-
victions became final prior to Padilla could not benefit from its
holding. State v. Osorio, 286 Neb. 384, 837 N.W.2d 66 (2013);
State v. Yuma, 286 Neb. 244, 835 N.W.2d 679 (2013). In Yuma,
we concluded that because the defendant’s conviction was not
final until approximately 1 week after Padilla was decided, the
new rule announced in Padilla applied to the defendant. But in
Osorio, we concluded that because the defendant’s conviction
had become final nearly a decade before Padilla was decided,
the rule announced in Padilla did not apply retroactively to the
defendant’s conviction.
In the present case, Chojolan was convicted and sentenced
in 2006, and therefore the rule announced in Padilla in 2010
does not apply retroactively to his conviction. We conclude
that the district court did not err when it determined that
Padilla did not apply retroactively to Chojolan’s 2006 plea
and conviction.
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The District Court Has Jurisdiction Under
§ 29-1819.02(2) to Consider Chojolan’s
Motion to Withdraw His 2006 Plea.
Chojolan asserts that the trial court in 2006 failed to give
him statutorily required advisements regarding immigration
consequences prior to acceptance of his plea. He claims in
this appeal that the district court erred when it concluded
that because he had completed his sentence, the court did
not have jurisdiction to consider his motion to withdraw his
plea. We conclude that under § 29-1819.02(2), the court had
jurisdiction to consider Chojolan’s motion to withdraw his
plea and that the district court erred when it concluded to
the contrary.
In Rodriguez, supra, we stated that § 29-1819.02(2) creates
a statutory remedy for a court’s failure to give the appropri-
ate immigration advisement before accepting a plea of guilty
and we noted that the remedy was limited to defendants
who seek to withdraw pleas that were accepted on or after
July 20, 2002. We further stated that with regard to such
pleas, all a defendant must show to withdraw a plea under
§ 29-1819.02 is that (1) the court failed to give all or part of
the advisement and (2) the defendant faces an immigration
consequence which was not included in the advisement given.
Rodriguez, supra.
The defendant in Rodriguez filed a motion in 2013 seek-
ing to withdraw a guilty plea he had entered in 2004. The
district court in Rodriguez concluded that it did not have
jurisdiction to consider the defendant’s motion because at the
time he filed the motion in 2013, the defendant had already
completed the probation sentence related to his 2004 convic-
tion. We noted on appeal in Rodriguez that the language of
§ 29-1819.02(2) imposes no requirement that a motion to
withdraw a plea must be filed before the defendant completes
his or her sentence. We determined that we could not read
such a limitation into the statute, and we disagreed with the
dissent’s conclusion that the use of the word “defendant” in
the statute demonstrated an intent to impose such limitation.
We therefore concluded that as to pleas entered on or after
Nebraska Advance Sheets
STATE v. CHOJOLAN 765
Cite as 288 Neb. 760July 20, 2002, § 29-1819.02(2) gives a court jurisdiction to
consider a motion to withdraw such plea or vacate the judg-
ment regardless of whether a defendant has completed his or
her sentence.
In the present case, the plea Chojolan seeks to withdraw
was entered in 2006, after the July 20, 2002, date set forth
in § 29-1819.02(2). Therefore, the district court had jurisdic-
tion to consider Chojolan’s motion even though he had com-
pleted his sentence prior to the time he filed the motion. We
conclude that the district court erred when it determined that
it did not have jurisdiction to consider Chojolan’s motion.
We therefore reverse the district court’s dismissal of the
motion, and we remand the cause to the district court for
further proceedings.
The District Court Made No Findings Regarding the
Merits of Chojolan’s Motion, and We Therefore
Do Not Address the State’s Argument That
Chojolan’s Evidence Regarding Immigration
Consequences Was Insufficient.
We finally note that the State argues on appeal that whether
or not the district court had jurisdiction to consider Chojolan’s
motion, Chojolan should not be permitted to withdraw his
plea, because he failed to show that the conviction may have
immigration consequences as required under § 29-1819.02(2)
and our case law. The State specifically contends that although
Chojolan presented evidence that immigration proceedings
had been brought against him, the evidence did not show
that such proceedings were a consequence of the 2006 plea
and conviction.
The district court in this case determined that it lacked juris-
diction to consider Chojolan’s motion, and the court therefore
made no findings with respect to the merits of the motion,
including whether Chojolan made the showings with respect to
immigration consequences that under § 29-1819.02(2) and our
cases would require the court to grant the motion to withdraw
his plea. Because the district court made no such findings, we
have nothing to review and we make no comment whether
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766 288 NEBRASKA REPORTS
there is sufficient evidence to establish the necessary show-
ings to require the court to allow Chojolan to withdraw his
2006 plea.
CONCLUSION
With respect to Chojolan’s assertion that his counsel was
ineffective for failing to advise him of the immigration con-
sequences of his plea, we agree with the district court that
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L.
Ed. 2d 284 (2010), does not apply retroactively to Chojolan’s
2006 plea-based conviction. The district court did not err
when it denied relief on this basis, and we affirm this aspect
of the district court’s order. With respect to Chojolan’s asser-
tion that the court in 2006 failed to advise him as required by
§ 29-1819.02, we conclude that because the plea was accepted
after July 20, 2002, § 29-1819.02(2) provides a remedy with-
out regard to whether Chojolan has completed his sentence
and that the district court erred when it concluded it lacked
subject matter jurisdiction based on the fact that Chojolan had
completed his sentence. The district court has jurisdiction to
consider Chojolan’s motion to withdraw his plea under the
remedy provided in § 29-1819.02(2). We reverse the district
court’s dismissal of Chojolan’s motion and remand the cause
for further proceedings.
Affirmed in part, and in part
reversed and remanded.
Connolly, J., dissenting.
I dissent. For the reasons stated in my dissent to State v.
Rodriguez,1 I disagree that Neb. Rev. Stat. § 29-1819.02(2)
(Reissue 2008) provides a remedy for a court’s failure to
give the required immigration advisement after a person has
completed their sentence. As set out in the Rodriguez dis-
sent, I also conclude that the common-law procedure for col-
laterally attacking a final judgment and withdrawing a plea
was unavailable because Chojolan has not raised a constitu-
tional claim.
Heavican, C.J., joins in this dissent.
1
State v. Rodriguez, ante p. 714, ___ N.W.2d ___ (2014).