State v. Gonzalez

Decision Date24 May 2013
Docket NumberNo. S–10–1097.,S–10–1097.
PartiesSTATE of Nebraska, appellee, v. Alma Ramirez GONZALEZ, appellant.
CourtNebraska Supreme Court


Syllabus by the Court

[285 Neb. 940]1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional questions that do not involve a factual dispute as a matter of law.

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.




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 possible 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 deportation. We conclude that Gonzalez' sole remedy was to file for postconviction relief pursuant to the Nebraska Postconviction Act 2 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.


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 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 conviction 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 interpreter” and that she “didn't understand much.” Gonzalez testified that she did not learn of the immigration consequences of her conviction until she consulted with her immigration attorney 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 performed 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 jurisdiction 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 plea, and accordingly, we affirmed the decision of the district 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.7Chaidez 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 retroactively 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 conclude 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 therefore conclude that the district court lacked jurisdiction to hear Gonzalez' motion and that we similarly lack jurisdiction over this appeal.


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.


An appellate court determines jurisdictional questions that do not involve a factual dispute as a matter of law.10


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 district courts to advise defendants of the possible immigration consequencesof a no contest or guilty plea and the resulting 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 seeking to withdraw a plea after his or her conviction has become 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 claiming 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 constitutionally 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...

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12 cases
  • State v. Rodriguez
    • United States
    • Nebraska Supreme Court
    • August 1, 2014
    ...court had jurisdiction over his motion under the common-law procedure for withdrawing 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 whet......
  • State v. Muratella
    • United States
    • Nebraska Supreme Court
    • June 9, 2023
    ... ...          Gabriel ... R. Muratella appeals from the district court's overruling ... of his motion for new trial under Neb. Rev. Stat ... §§ 29-2101 to 29-2103 (Reissue 2016) and his motion ... to withdraw his plea under our common-law procedure ... recognized in State v Gonzalez ... [ 1 ] Because Muratella ... failed to satisfy the requirements for such relief, we ...          FACTUAL ... BACKGROUND ...          In ... 2019, Muratella pleaded no contest [ 2 ] and was adjudged guilty of ... one count of attempted delivery or possession with intent to ... ...
  • State v. Boone
    • United States
    • Nebraska Supreme Court
    • June 30, 2023
    ... ... common-law claim must be ... [314 Neb. 628] founded on a constitutional right that cannot ... and never could have been vindicated under the Nebraska ... Postconviction Act or by any other means"), citing ... State v. Chiroy Osorio, 286 Neb. 384, 837 N.W.2d 66 ... (2013), and Gonzalez II ...          Where ... does all this history leave us today? First, we see no basis ... in our law to conclude that courts have authority to allow a ... defendant to withdraw a plea after sentencing whenever it is ... shown that withdrawal is necessary to prevent a manifest ... ...
  • State v. Huggins
    • United States
    • Nebraska Supreme Court
    • July 24, 2015
    ...or a period over 3 months, to file a Nebraska postconviction action within the statutory period of limitation.In State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013), we determined that a defendant was not deprived of the opportunity to file a postconviction action even though the defenda......
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