State v. Gonzalez

• Decision Date: 13 January 2012
• Docket Number: No. S–10–1097.,S–10–1097.
• Citation: 807 N.W.2d 759,283 Neb. 1
• Parties: STATE of Nebraska, appellee, v. Alma Ramirez GONZALEZ, appellant.
• Court: Nebraska Supreme Court

283 Neb. 1

807 N.W.2d 759

STATE of Nebraska, appellee,

v.Alma Ramirez GONZALEZ, appellant.

No. S–10–1097.

Supreme Court of Nebraska.

Jan. 13, 2012.

Syllabus by the Court

1.Pleas: Appeal and Error.The right to withdraw a plea previously entered is not absolute, and, in the absence of an abuse of discretion, refusal to allow a defendant's withdrawal of a plea will not be disturbed on appeal.

2.Pleas: Sentences: Proof.With respect to withdrawal of a plea of guilty or no contest made after sentencing, withdrawal is proper only where the defendant makes a timely motion and establishes, by clear and convincing evidence, that withdrawal is necessary to correct a manifest injustice.

3.Pleas: Sentences: Judgments.A motion for withdrawal of a plea of guilty or no contest is timely if made with due diligence, considering the nature of the allegations therein, and is not necessarily barred because it was made subsequent to judgment or sentence.

4.Pleas: Proof.Manifest injustice justifying withdrawal of a plea may be proved if the defendant proves, by clear and convincing evidence, that (1)he or she was denied the effective assistance of counsel guaranteed by constitution, statute, or rule; (2) the plea was not entered or ratified by the defendant or a person authorized to so act on his or her behalf; (3) the plea was involuntary, or was entered without knowledge of the charge or that the sentence actually imposed could be imposed; or (4)he or she did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose those concessions as promised in the plea agreement.

5.Pleas: Proof.A defendant seeking to withdraw a plea must plead and prove that omissions constituting manifest injustice have resulted in prejudice.

6.Effectiveness of Counsel: Proof.To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.

7.Pleas: Effectiveness of Counsel: Proof.In the context of a plea of guilty or no contest, to prevail on a claim of ineffective assistance of counsel, a defendant must allege facts showing a reasonable probability that he or she would have insisted on going to trial but for counsel's errors.

8.Constitutional Law: Right to Counsel: Effectiveness of Counsel: Case Overruled.Advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel, and Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), applies to such a claim, abrogating State v. Zarate,264 Neb. 690, 651 N.W.2d 215(2002).

9.Pleas: Attorney and Client.Counsel must inform his or her client whether a plea carries a risk of deportation.

10.Plea Bargains: Effectiveness of Counsel.To obtain relief on a claim of ineffective assistance of counsel based on failure to advise a client whether a plea carries a risk of deportation, the defendant must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.

11.Effectiveness of Counsel: Appeal and Error.A claim of ineffective assistance of counsel presents a mixed question of law and fact.Whether counsel was deficient and whether the defendant was prejudiced are questions of law that an appellate court reviews independently of the lower court's decision, but the appellate court reviews factual findings for clear error.

Joshua W. Weir, of Dornan, Lustgarten & Troia, P.C., L.L.O., Omaha, for appellant.

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

HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

GERRARD, J.

Alma Ramirez Gonzalez was convicted of fraudulently obtaining public assistance benefits, based upon a no contest plea that she entered pursuant to a plea agreement.Over 2 years after her sentencing, she filed a motion to withdraw her plea, alleging that she had received ineffective assistance of counsel because her attorney had not explained that her plea would result in automatic deportation.We conclude that procedurally, Gonzalez was permitted to move for withdrawal of her plea.But we also conclude that she failed to prove by clear and convincing evidence that withdrawal of her plea was necessary to prevent a manifest injustice.Therefore, we affirm the district court's decision to overrule her motion.

BACKGROUND

Gonzalez was, at the time of this action, living in Grand Island, Nebraska, with two of her three children.In December 2006, before criminal proceedings were brought against her, Gonzalez was detained by the federal government for living in the United States illegally.As a result, deportation proceedings were brought against her.As of August 31, 2010, the deportation proceedings were ongoing.

In 2007, Gonzalez was arrested for fraudulently obtaining public assistance benefits in an amount greater than $500, which is a Class IV felony, punishable by up to 5 years' imprisonment or a $10,000 fine.¹Gonzalez was charged by information on January 2, 2008.She was arraigned and pled not guilty.Before she entered her plea, she was advised of her rights by the court, including the warning that conviction for the offense charged against her could have the consequence of deportation or denial of a naturalization request.Gonzalez said she understood those rights.

On March 20, 2008, Gonzalez withdrew her initial plea of not guilty and, pursuant to a plea agreement, pled no contest to the charge.In exchange for Gonzalez' plea of no contest, the State agreed to recommend a term of probation at sentencing.Gonzalez also agreed to pay restitution to the State for the benefits illegally obtained, in the amount of $18,522.The factual basis for the plea established that Gonzalez had applied for and received public assistance, but had not reported the fact that she was employed under an assumed name.Her failure to report her employment resulted in an overpayment of benefits.

Before accepting Gonzalez' plea, the court again advised her that conviction for the offense could result in her deportation or a denial of her naturalization requests, and she said she understood.The court convicted Gonzalez pursuant to her plea and, on May 8, 2008, sentenced her to a term of 5 years' probation.

Because Gonzalez pled no contest to fraudulently obtaining public assistance benefits, she became ineligible to stay in the United States.Specifically, Gonzalez was ineligible for a “cancellation of removal,” for which she had been eligible because she had U.S. relatives and she had been living in the United States for 10 years.²Her ineligibility for a cancellation of removal was a direct result of her conviction for fraudulently obtaining public assistance benefits.³

Gonzalez filed a “Motion to Withdraw Plea and Vacate Judgment” in the district court on July 14, 2010, on the ground that she had received ineffective assistance of counsel.An evidentiary hearing was held.At the hearing, Gonzalez testified that she had not discussed the immigration consequences of her plea with her criminal trial counsel.Gonzalez testified that her criminal trial counsel had known Gonzalez was not a U.S. citizen, but Gonzalez had not informed her criminal trial counsel of her ongoing immigration case.

Gonzalez said that if she had known beforehand that there could be consequences with immigration that could result in deportation, she“would have looked for another solution.”She admitted, however, that although the immigration consequences were very important to her before she entered her plea, she never asked her attorney whether there might be a problem.She also admitted that the court had informed her there could be immigration consequences to her plea, but that the advisement was said “very rapidly through the interpreter” and she“didn't understand much.”She said that the first time she learned about the effect of the plea on her immigration status was about 5 months before the hearing on her motion to withdraw, when she was told by a different attorney who represented her in the immigration proceedings.

The district court denied Gonzalez' motion.While the district court accepted Gonzalez' claim that her criminal trial counsel's performance was deficient, the court determined that Gonzalez had failed to demonstrate prejudice resulting from that deficient performance.The court explained that Gonzalez' assertion that she would have found a “ ‘different solution’ ” did not satisfy Gonzalez' burden of showing prejudice, because whether a “different solution” was possible was not within Gonzalez' control.The court also noted that Gonzalez had two different attorneys at the time of the plea—her criminal trial counsel and her immigration attorney—and apparently did not inquire of either one of them about the specific immigration consequences of her plea, despite her awareness that such consequences were possible.So, the court found that Gonzalez had failed to prove prejudice and denied her motion to withdraw her plea.Gonzalez appeals.

ASSIGNMENT OF ERROR

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

STANDARD OF REVIEW

The right to withdraw a plea previously entered is not absolute, and, in the absence of an abuse of discretion, refusal to allow a defendant's withdrawal of a plea will not be disturbed on appeal.⁴

ANALYSIS

Jurisdiction Over Motion to Withdraw Plea

The State argues that we have no appellate jurisdiction.The State claims that there is no procedure in Nebraska law for withdrawal of a guilty plea after judgment based on ineffective assistance of counsel.So, the State argues, the trial court...