State v. Diaz

• Decision Date: 02 March 2012
• Docket Number: No. S–11–254.,S–11–254.
• Parties: STATE of Nebraska, appellee, v. Servio DIAZ, appellant.
• Court: Nebraska Supreme Court

283 Neb. 414

808 N.W.2d 891

STATE of Nebraska, appellee,

v.Servio DIAZ, appellant.

No. S–11–254.

Supreme Court of Nebraska.

March 2, 2012.

Syllabus by the Court

1. Judgments: Proof: Appeal and Error. One seeking a writ of error coram nobis has the burden to prove entitlement to such relief.

2. Judgments: Appeal and Error. The findings of the district court in connection with its ruling on a motion for a writ of error coram nobis will not be disturbed unless they are clearly erroneous.

3. Appeal and Error. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.

4. Judgments: Constitutional Law: Legislature: Appeal and Error. The common-law writ of error coram nobis exists in this state under Neb.Rev.Stat. § 49–101 (Reissue 2010), which adopts English common law to the extent that it is not inconsistent with the Constitution of the United States, the organic law of this state, or any law passed by our Legislature.

5. Judgments: Evidence: Appeal and Error. The purpose of the writ of error coram nobis is to bring before the court rendering judgment matters of fact which, if known at the time the judgment was rendered, would have prevented its rendition. It enables the court to recall some adjudication that was made while some fact existed which would have prevented rendition of the judgment but which, through no fault of the party, was not presented.

6. Convictions: Proof: Appeal and Error. The burden of proof in a proceeding to obtain a writ of error coram nobis is upon the applicant claiming the error, and the alleged error of fact must be such as would have prevented a conviction. It is not enough to show that it might have caused a different result.

7. Judgments: Evidence: Appeal and Error. A writ of error coram nobis reaches only matters of fact unknown to the applicant at the time of judgment, not discoverable through reasonable diligence, and which are of a nature that, if known by the court, would have prevented entry of judgment.

8. Judgments: Appeal and Error. The writ of error coram nobis is not available to correct errors of law.

9. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact, and, in particular, determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law.

Mark Porto, of Shamberg, Wolf, McDermott & Depue, Grand Island, for appellant.

Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.

HEAVICAN, C.J., CONNOLLY, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ., and IRWIN and MOORE, Judges.

MILLER–LERMAN, J.

NATURE OF CASE

Servio Diaz appeals the order of the district court for Colfax County which denied his motion for a writ of error coram nobis. Diaz sought relief on the basis that his counsel was ineffective when counsel failed to advise Diaz of potential deportation consequences of the plea that he entered in connection with his plea-based conviction in 2000. The court determined that Diaz had not established entitlement to relief and denied the motion. We conclude that the error asserted by Diaz is not an appropriate basis for relief by a writ of error coram nobis. Therefore, although based on different reasoning, we affirm the district court's denial of Diaz' motion.

STATEMENT OF FACTS

Diaz is a Honduran disaster refugee with authorization to reside in the United States. He has resided in the United States since 1994. In 2000, pursuant to a plea agreement, Diaz pled guilty to misdemeanor charges of attempted possession of a controlled substance, cocaine, and driving while intoxicated. He was sentenced to 2 years' probation, and his probation was terminated in 2002.

On September 30, 2010, Diaz filed a motion by which he sought to vacate the plea-based judgment. Diaz asserted that “his attorney failed to correctly advise him of the presumptively mandatory consequences he would face with regard to deportation when he entered his guilty plea.” Diaz asserted that his conviction for attempted possession of cocaine was a deportable offense under federal law. Diaz asserted that he had received ineffective assistance of counsel and cited Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010), in which the U.S. Supreme Court stated that “counsel must inform her client whether his plea carries a risk of deportation.” Diaz finally asserted that he was “currently in removal proceedings pending removal to Honduras as a result of the conviction in this matter.” Diaz prayed the court to vacate the judgment, thus allowing him to withdraw the plea.

In an order granting an evidentiary hearing, the court characterized Diaz' motion and stated that “his motion is, in essence, a writ of error coram nobis.” Following the hearing, the court entered an order denying the relief requested by Diaz. The court noted that Diaz was no longer in custody and therefore not eligible for postconviction relief under Neb.Rev.Stat. § 29–3001 (Reissue 2008). The court determined that evidence adduced at the hearing demonstrated that under federal law, Diaz was deportable as a result of the conviction for attempted possession of cocaine. However, the court determined that Diaz had not demonstrated that he was not advised that his conviction could have immigration consequences. The court stated that counsel should be presumed to have rendered competent advice at the time of a plea, and the court noted that “[t]he only evidence on this allegation is [Diaz'] self-serving statement that he received no advisement.” The court noted that Diaz had not shown “that deportation proceedings have been initiated or that such proceedings are reasonably certain to be initiated” and that he had offered no evidence, other than his own testimony, regarding his immigration status. The court determined that Diaz had not established entitlement to relief by a writ of error coram nobis and denied the motion.

Diaz appeals the denial of his motion.

ASSIGNMENT OF ERROR

Diaz claims that the district court erred when it denied his motion for a writ of error coram nobis.

STANDARDS OF REVIEW

One seeking a writ of error coram nobis has the burden to prove entitlement to such relief. See State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003). In postconviction appeals, a defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011). We logically extend this standard to the findings of the district court in connection with its ruling on a motion for a writ of error coram nobis, and such findings will not be disturbed unless they are clearly erroneous.

ANALYSIS

As an initial matter, we note that the State suggests that Diaz' motion should be considered by this court as a motion to withdraw his plea rather than a motion for a writ of error coram nobis and contends that the district court lacked jurisdiction. We reject this suggestion. The State argues that because Diaz completed his sentence in 2002, the district court in 2010 lacked jurisdiction over a motion to withdraw his plea. The State cites State v. Rodriguez–Torres, 275 Neb. 363, 368, 746 N.W.2d 686, 690 (2008), for the proposition that absent a legislatively authorized procedure, there is no recourse for defendants to withdraw their pleas and vacate judgments “years after having completed [their] sentences.”

In response, Diaz argues that the State ignores our discussion of Rodriguez–Torres in State v. Yos–Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009). In Yos–Chiguil, we noted that the sole basis alleged by the defendant for withdrawal of the plea in Rodriguez–Torres was Neb.Rev.Stat. § 29–1819.02 (Reissue 2008), which requires the trial court, before accepting a plea, to advise a defendant that a conviction may have immigration consequences. In Yos–Chiguil, we further commented that in Rodriguez–Torres, we had held that § 29–1819.02 “did not create a statutory procedure pursuant to which a plea entered before July 20, 2002, could be withdrawn after the person convicted of the crime had already served his sentence.” 278 Neb. at 595, 772 N.W.2d at 578. We further noted in Yos–Chiguil 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.” 278 Neb. at 595, 772 N.W.2d at 578. The issue was also not presented or decided in Yos–Chiguil.

We recently decided State v. Gonzalez, 283 Neb. 1, 807 N.W.2d 759 (2012), involving a motion to withdraw a plea. In Gonzalez, the defendant asserted that she received ineffective assistance of counsel in connection with a plea because counsel failed to inform her of the immigration consequences of her plea. We concluded in Gonzalez that, even after final judgment, the trial court had jurisdiction to consider the defendant's motion to withdraw her plea on the basis of such alleged ineffective assistance of counsel. Regardless of whether the distinction makes a difference, we note that the defendant in Gonzalez had not completed her sentence at the time she filed her motion to withdraw her plea, whereas Diaz had completed his sentence years before he sought relief in the case before us.

Contrary to the State's argument, we do not consider the present case as involving a ruling on a motion to withdraw a plea; instead, it involves the appeal from an order denying a request for a writ of error coram nobis, and we analyze it on this basis. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court. State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).

The district court stated in an order granting the evidentiary hearing that Diaz had urged that his motion be considered as a motion for a writ of...