State v. Gonzalez

Nebraska Advance Sheets
940 285 NEBRASKA REPORTS

State of Nebraska, appellee, v. Alma
Ramirez Gonzalez, appellant.
___ N.W.2d ___

Filed May 24, 2013. No. S-10-1097.

 1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional
questions that do not involve a factual dispute as a matter of law.

Appeal from the District Court for Hall County: James
D. Livingston, Judge. On motion for rehearing, reargument
granted. See 283 Neb. 1, 807 N.W.2d 759 (2012), for original
opinion. Original opinion withdrawn. Appeal dismissed.
Joshua W. Weir, of Dornan, Lustgarten & Troia, P.C., L.L.O.,
for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Miller-Lerman, JJ.
P er Curiam.
INTRODUCTION
In 2008, Alma Ramirez Gonzalez pled no contest to a charge
of fraudulently obtaining public assistance benefits. Before
accepting her plea, the district court advised her of the pos-
sible immigration consequences of her conviction.1 Gonzalez
was later sentenced to 5 years’ probation. On July 14, 2010,
she filed a motion to withdraw her plea, alleging she received
ineffective assistance of counsel because her counsel had not
told her that her conviction would result in automatic deporta-
tion. We conclude that Gonzalez’ sole remedy was to file for
postconviction relief pursuant to the Nebraska Postconviction
Act2 and that because she did not do so, both the district court
and this court lack jurisdiction over her motion. We therefore
dismiss Gonzalez’ appeal.

 1
See Neb. Rev. Stat. § 29-1819.02 (Reissue 2008).
 2
Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2008 & Cum. Supp.
2012).
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STATE v. GONZALEZ 941
Cite as 285 Neb. 940

BACKGROUND
In December 2006, Gonzalez was detained by the federal
government for living in the United States illegally. Deportation
proceedings were commenced. The deportation proceedings
were ongoing as of August 31, 2010.
In 2007, Gonzalez was arrested for fraudulently obtaining
public assistance benefits in an amount greater than $500, a
Class IV felony punishable by up to 5 years’ imprisonment, a
$10,000 fine, or both.3 She was charged with this offense by an
information filed on January 2, 2008.
On March 20, 2008, pursuant to a plea agreement, Gonzalez
withdrew her initial plea of not guilty and pled no contest
to the charge. In return for her no contest plea, the State
agreed to recommend a term of probation. Before accepting
Gonzalez’ plea, the district court advised her that conviction
of the offense could result in her deportation or a denial of her
naturalization request. Gonzalez indicated that she understood
these possible consequences. The court found Gonzalez guilty
and subsequently sentenced her to a term of 5 years’ probation.
As a result of the conviction, Gonzalez became ineligible to
remain in the United States.
On July 14, 2010, Gonzalez filed a “Motion to Withdraw
Plea and Vacate Judgment” in the district court on the ground
that she had received ineffective assistance of counsel. The
motion was based on the U.S. Supreme Court’s decision in
Padilla v. Kentucky,4 which was issued on March 31, 2010.
Padilla held that defense counsel had a duty to advise clients
of the risk of deportation arising from a guilty plea.
The district court held an evidentiary hearing on Gonzalez’
motion. Gonzalez testified that she had not discussed the
immigration consequences of her plea and conviction with
her criminal trial counsel prior to the time she entered her
plea. She testified that her trial counsel knew at the time she

 3
See Neb. Rev. Stat. §§ 28-105(1) (Reissue 2008) and 68-1017(2) (Reissue
2003).
 4
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284
(2010).
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942 285 NEBRASKA REPORTS

entered her plea that Gonzalez was not a U.S. citizen, but that
he did not know of her ongoing immigration proceedings.
Gonzalez testified that if she had known of the immigration
consequences of her conviction, she “would have looked for
another solution” and not entered a plea. But Gonzalez also
admitted that while the immigration consequences of a con-
viction were very important to her, she never asked her trial
counsel whether there could be such consequences. Gonzalez
testified that the immigration rights advisement given to her
by the district court was done “very rapidly through the inter-
preter” and that she “didn’t understand much.” Gonzalez testi-
fied that she did not learn of the immigration consequences of
her conviction until she consulted with her immigration attor-
ney approximately 5 months before the hearing on her motion
to withdraw.
The district court denied Gonzalez’ motion to withdraw
her plea. The court generally agreed that trial counsel per-
formed deficiently in not advising Gonzalez that she would
be deported as a result of her plea and conviction. But it
concluded that Gonzalez was not entitled to relief, because
she had failed to demonstrate that her counsel’s deficient
performance prejudiced her.5 In other words, Gonzalez had
not demonstrated a reasonable probability that she would not
have entered the plea had counsel properly informed her of
the immigration consequences of her plea and conviction.
Gonzalez appealed.
After hearing oral arguments, this court issued an opinion
on January 13, 2012.6 In it, we concluded that Gonzalez’
motion to withdraw her plea was procedurally proper based on
common-law principles and that this court thus had jurisdic-
tion over Gonzalez’ appeal. We also assumed that the holding
in Padilla would apply retroactively to Gonzalez. However,
we concluded that Gonzalez failed to show that she would
suffer a manifest injustice if she was unable to withdraw her

 5
See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984).
 6
See State v. Gonzalez, 283 Neb. 1, 807 N.W.2d 759 (2012).
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STATE v. GONZALEZ 943
Cite as 285 Neb. 940

plea, and accordingly, we affirmed the decision of the dis-
trict court.
After our opinion was released, the State filed a motion
for rehearing. The motion questioned our conclusion that
Gonzalez’ motion was procedurally proper—specifically, our
conclusion that there is a common-law procedure under which
a defendant whose conviction has become final may bring
a motion to withdraw a plea. We granted the State’s motion
for rehearing.
After the motion for rehearing was granted and while the
appeal was again pending before this court, the U.S. Supreme
Court decided Chaidez v. U.S.7 Chaidez held that the holding in
Padilla requiring defense counsel to advise clients of the risk
of deportation arising from a guilty plea did not apply retro-
actively to a defendant whose conviction became final before
Padilla was decided. Based on Chaidez, it is now clear that
Gonzalez’ ineffective assistance of counsel claim is entirely
without merit.8
But we granted rehearing in this case not to determine the
merits of her claim, but instead to determine whether it was
procedurally proper. We now withdraw the opinion issued
on January 13, 2012, and substitute this opinion. We con-
clude that although a very limited common-law procedure
exists, it was unavailable to Gonzalez because she could have
raised an ineffective assistance of counsel claim under the
Nebraska Postconviction Act (hereinafter the Act).9 We there-
fore conclude that the district court lacked jurisdiction to hear
Gonzalez’ motion and that we similarly lack jurisdiction over
this appeal.

ASSIGNMENT OF ERROR
Gonzalez assigns, consolidated and restated, that the district
court erred in denying her motion to withdraw her plea because
she was denied the effective assistance of counsel.

 7
Chaidez v. U.S., ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013).
 8
See State v. Zarate, 264 Neb. 690, 651 N.W.2d 215 (2002).
 9
§§ 29-3001 to 29-3004.
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STANDARD OF REVIEW
[1] An appellate court determines jurisdictional questions
that do not involve a factual dispute as a matter of law.10

ANALYSIS
The issue presented by this appeal is whether a court has
jurisdiction to consider a motion to withdraw a plea based
on an allegation of ineffective assistance of counsel when the
motion is filed after the underlying conviction is final. In such
a case, the motion is a collateral attack upon the conviction.
There are two statutory avenues available to a defendant
seeking to withdraw a plea after his or her conviction has
become final. One is a purely statutory remedy, and the other
is a statutory means of vindicating a constitutional right. In
addition, as will be explained in more detail below, a limited
common-law right to withdraw a plea also exists.
The first avenue is § 29-1819.02,11 which requires dis-
trict courts to advise defendants of the possible immigration
consequences of a no contest or guilty plea and the result-
ing conviction before the district court can accept the plea.
If the advisement prescribed by § 29-1819.02 is not given
and an immigration consequence results from the conviction,
§ 29-1819.02 allows a convicted person to move to withdraw
the plea and set aside the conviction. We have held that the
motion to withdraw may be filed even if the conviction has
become final so long as the defendant is still serving his or her
sentence.12 We have not yet addressed whether the motion may
be filed after the sentence is served.13 Here, the rights advisory
required by § 29-1819.02 was read to Gonzalez, and thus, she
does not and cannot move to withdraw her plea pursuant to
§ 29-1819.02.
The second statutory avenue available to a defendant seek-
ing to withdraw a plea after his or her conviction has become

10
Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379, 810
N.W.2d 149 (2012).
11
See State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).
12
Id.
13
See id.
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STATE v. GONZALEZ 945
Cite as 285 Neb. 940

final is the Act. The Act is enacted to protect constitutional
rights. Specifically, § 29-3001 currently provides:
(1) A prisoner in custody under sentence and claim-
ing a right to be released on the ground that there
was such a denial or infringement of the rights of the
prisoner as to render the judgment void or voidable
under the Constitution of this state or the Constitution
of the United States, may file a verified motion, in the
court which imposed such sentence, stating the grounds
relied upon and asking the court to vacate or set aside
the sentence.
Such motion must be filed within 1 year of the triggering
event.14 Gonzalez’ ineffective assistance of counsel claim is
rooted in her rights under the 6th and 14th Amendments to
the U.S. Constitution and article I, § 11, of the Nebraska
Constitution and thus falls within the purview of § 29-3001.
And Gonzalez filed her motion within 1 year of the U.S.
Supreme Court’s decision in Padilla,15 which, as noted, was the
alleged basis for her claim that her trial counsel provided con-
stitutionally ineffective assistance by failing to advise her that
she would be deported if she entered a plea and was convicted.
But Gonzalez’ motion to withdraw her plea was not verified as
is required by § 29-3001. Nor does the motion itself suggest
that it was brought under the Act.
Indeed, Gonzalez does not argue that her motion was brought
pursuant to the Act. Instead, she contends that the Act was not
available to her because she was not “‘in custody’” within the
meaning of that Act.16 And this court has held that a prisoner
is “in custody” for purposes of the Act when on paro1e17 or
when sentenced to a term of court-ordered probation,18 as well
as when serving a term of incarceration. As such, Gonzalez
was “in custody” under § 29-3001 during her 5-year term of

14
§ 29-3001(4).
15
Padilla, supra note 4.
16
Supplemental brief for appellant at 13.
17
State v. Thomas, 236 Neb. 553, 462 N.W.2d 862 (1990).
18
Zarate, supra note 8; State v. Styskal, 242 Neb. 26, 493 N.W.2d 313
(1992).
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946 285 NEBRASKA REPORTS

probation. Gonzalez even acknowledges in her briefs that she
was still serving her sentence at the time she filed her motion
to withdraw her plea.
But Gonzalez argues that she was in federal custody at the
time she filed her motion to withdraw her plea and that thus,
the Act was unavailable to her.19 Assuming without deciding
that a postconviction action cannot be brought during the time
a defendant otherwise serving a Nebraska sentence is in federal
custody, Gonzalez has neither pled nor proved that she was in
federal custody for the entire 1-year period following the U.S.
Supreme Court’s decision in Padilla.20
We therefore conclude that on the record before us, Gonzalez
has not shown that she could not have raised her ineffective
assistance of counsel claim and sought to withdraw her plea
under the Act. As such, we presume that the Act was avail-
able to her. As we noted above, Gonzalez did not file such
an action.
The remaining question is whether a common-law proce-
dure also authorized Gonzalez’ motion to withdraw her plea
after her conviction had become final. The State argues quite
strenuously that there is no common-law procedure authorizing
withdrawal of a plea after a conviction has become final and
that our initial opinion incorrectly recognized one. In our initial
opinion, we cited to nine cases holding that when a motion to
withdraw a plea is filed after sentencing, withdrawal is proper
only when the motion is timely and the defendant establishes
by clear and convincing evidence that withdrawal is necessary
to correct a manifest injustice.21 Every one of the cited cases
involved a motion to withdraw a plea that was filed after sen-
tencing but before the judgment became final for purposes of
collateral attack. We agree with the State that these cases do
not support a finding that there is a common-law procedure
whereby a defendant may move to withdraw a plea after the
conviction has become final.

19
See, generally, State v. Whitmore, 234 Neb. 557, 452 N.W.2d 31 (1990).
20
See § 29-3001(4).
21
Gonzalez, supra note 6 (citing cases).
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STATE v. GONZALEZ 947
Cite as 285 Neb. 940

But we did not cite those cases for just that proposition.
Indeed, in the very next sentence, we stated, “That [manifest
injustice] standard applies even where a motion to withdraw
a plea has been made after the sentencing court’s judgment
has become final.”22 We cited two cases for this proposition—
State v. Holtan23 and State v. Kluge.24 Upon further examina-
tion, we agree that Holtan does not support this proposition
as strongly as our original opinion might have implied, as the
motion to withdraw in that case was made in the context of a
remand on federal habeas review. But Kluge does support our
stated proposition.
In Kluge, the motion to withdraw the guilty plea was filed
after the defendant pled guilty, was sentenced to a term of
incarceration, and unsuccessfully filed a direct appeal. The
motion was therefore a collateral attack on his conviction. And
even though a concurring opinion challenged the procedural
validity of the motion,25 we addressed it on the merits. In
doing so, we cited to the American Bar Association Standards
Relating to Pleas of Guilty. We noted that standard 14-2.1(b)
allowed a defendant to withdraw a guilty plea “‘whenever’”
he or she, “‘upon a timely motion for withdrawal, proves that
withdrawal is necessary to correct a manifest injustice.’”26 We
further noted that a manifest injustice occurs, among other
things, “whenever the defendant proves that he was denied the
effective assistance of counsel.”27
In addition, we have more recently alluded to a common-
law procedure authorizing the withdrawal of a plea after a
conviction has become final.28 In State v. Yos-Chiguil,29 the

22
Id. at 7, 807 N.W.2d at 765.
23
State v. Holtan, 216 Neb. 594, 344 N.W.2d 661 (1984).
24
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).
25
Kluge, supra note 24 (Clinton, J., concurring).
26
Id. at 118, 251 N.W.2d at 739.
27
Id. at 119, 251 N.W.2d at 739.
28
Yos-Chiguil, supra note 11.
29
Id.
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defendant pled guilty. Prior to accepting the guilty plea,
the district court advised him of the immigration conse-
quences of conviction, but did not follow the exact language
of § 29-1819.02. The defendant was subsequently sentenced
and then filed an unsuccessful direct appeal.
After the appeal mandate issued, the defendant filed a
motion to withdraw his plea on the ground that the immigra-
tion advisement given by the district court was inadequate.
The State argued that the district court lacked jurisdiction to
decide the issue because we had held in State v. Rodriguez-
Torres30 that § 29-1819.02 did not create a procedure for
setting aside a plea after a conviction based upon such plea
has become final. We noted in Yos-Chiguil that the State’s
argument “both overstate[d] our holding in Rodriguez-Torres
and overlook[ed] a critical difference between it” and Yos-
Chiguil.31 We explained that the issue in Rodriguez-Torres
was whether the language of § 29-1819.02 created a statu-
tory procedure, not whether any procedure at all existed. We
expressly stated that “[b]ecause the issue was not presented
to us [in Rodriguez-Torres,] we did not address whether a
common-law remedy existed for withdrawal of the plea in
that circumstance.”32
The issue is now presented to us, and we conclude that
Kluge and Yos-Chiguil recognize a common-law procedure
for withdrawing a plea after a conviction has become final.
Because neither of those cases explains the scope and param-
eters of that procedure, we do so now.
The procedure is civil, not criminal.33 And it is available
in extremely limited circumstances. The Legislature played a
role in limiting those circumstances by providing that the Act
“is not intended to be concurrent with any other remedy exist-
ing in the courts of the state. Any proceeding filed under the

30
State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008).
31
Yos-Chiguil, supra note 11, 278 Neb. at 595, 772 N.W.2d at 578.
32
Id.
33
See, State v. Pratt, 273 Neb. 817, 733 N.W.2d 868 (2007); State v. Smith,
269 Neb. 773, 696 N.W.2d 871 (2005); State v. Lotter, 266 Neb. 245, 664
N.W.2d 892 (2003).
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STATE v. GONZALEZ 949
Cite as 285 Neb. 940

provisions of sections 29-3001 to 29-3004 which states facts
which if true would constitute grounds for relief under another
remedy shall be dismissed with prejudice.”34 We construe this
to be the Legislature’s statement of intent that the Act is the
primary procedure for bringing collateral attacks based upon
constitutional principles. In fact, this has been the way we have
interpreted the Act for the last 48 years. Thus, if a defendant
has a collateral attack that could be asserted under the Act, that
Act is his or her sole remedy. Only if a defendant does not
and never could have asserted the basis of his or her collateral
attack under the Act may he or she invoke the common-law
procedure and move to withdraw a plea after the conviction
has become final.
Moreover, the common-law procedure is available only
when the collateral attack is based upon a constitutional prin-
ciple. On at least two occasions, this court has refused to cre-
ate or recognize a nonstatutory procedure whereby defendants
can raise claims related to criminal cases.35 But in doing so,
we noted that the procedures at issue were not “constitution-
ally mandated.”36 The situation before us is different. The right
Gonzalez and similarly situated defendants seek to vindicate is
a right to the effective assistance of counsel, which is a right
granted by the Sixth Amendment to the U.S. Constitution.
When such a right is at issue and there is no other means
of vindicating it, we refuse to deny a defendant due process
of law.37
We therefore hold that there is a Nebraska common-law
procedure under which a defendant may move to withdraw a
plea after his or her conviction has become final. This pro-
cedure is available only when (1) the Act is not, and never
was, available as a means of asserting the ground or grounds

34
§ 29-3003.
35
See, State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000); State v.
Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999).
36
Louthan, supra note 35, 257 Neb. at 186, 595 N.W.2d at 925. See
El-Tabech, supra note 35.
37
See, El-Tabech, supra note 35; Louthan, supra note 35. See, also, Case v.
Nebraska, 381 U.S. 336, 85 S. Ct. 1486, 14 L. Ed. 2d 422 (1965).
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justifying withdrawing the plea and (2) a constitutional right
is at issue. In sum, this common-law procedure exists to safe-
guard 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.38
In this case, Gonzalez was “in custody” within the mean-
ing of the Act during her 5-year term of probation. Padilla
was decided during this time period, and it was that deci-
sion upon which Gonzalez’ ineffective assistance of counsel
claim depended. There is no showing in the record that the
Act was unavailable to Gonzalez during the 1-year period
following Padilla. We therefore conclude that Gonzalez’ sole
remedy was to move to withdraw her plea pursuant to the Act.
Because she had an opportunity to do so under that Act, the
common-law procedure for withdrawing her plea was unavail-
able to her. We find that the district court lacked jurisdiction
to consider the motion and that we lack jurisdiction over
Gonzalez’ appeal.

CONCLUSION
For the reasons discussed herein, we withdraw our prior
opinion in Gonzales39 and substitute this opinion in which
we conclude that the district court lacked jurisdiction over
Gonzalez’ motion. We similarly lack jurisdiction over her
appeal, and as such, the appeal is dismissed.
Appeal dismissed.
Cassel, J., not participating.

38
Id.
39
Gonzalez, supra note 6.