State v. Zarate, No. S-01-1175.

• Court: Supreme Court of Nebraska
• Writing for the Court: GERRARD, J.
• Citation: 264 Neb. 690,651 N.W.2d 215
• Decision Date: 27 September 2002
• Docket Number: No. S-01-1175.
• Parties: STATE of Nebraska, Appellee, v. Miguel Castillo ZARATE, Appellant.

651 N.W.2d 215
264 Neb. 690

STATE of Nebraska, Appellee,
v.
Miguel Castillo ZARATE, Appellant

No. S-01-1175.

Supreme Court of Nebraska.

September 27, 2002.

651 N.W.2d 219

Sean J. Brennan, Lincoln, for appellant

Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

NATURE OF CASE

The defendant, Miguel Castillo Zarate, appeals from the district court's denial, without an evidentiary hearing, of Zarate's motion for postconviction relief. The sole question presented by this appeal is whether Zarate is entitled to an evidentiary hearing on the claim that Zarate's counsel was ineffective in not advising Zarate that pleading guilty to attempted possession of a controlled substance could result in deportation.

BACKGROUND

Zarate was charged by information on May 2, 1997, with possession of a controlled substance with intent to deliver in

651 N.W.2d 220

violation of Neb.Rev.Stat. § 28-416(1)(a) (Reissue 1995). Zarate was found guilty pursuant to a guilty plea and, on September 14, 1998, was sentenced to probation for a period of 3 years and fined $1,500

Zarate filed a motion for postconviction relief on March 26, 2001, alleging that he was denied his constitutional right to effective assistance of counsel. Zarate alleged that he is not a U.S. citizen and that his attorney was aware of that fact. Zarate further alleged that he was not aware at the time of his guilty plea, and his attorney did not advise him, that Zarate could be deported from the United States as a consequence of his conviction of the crime alleged in the information. Zarate alleged that had he known that deportation was a possible consequence of a criminal conviction, he would not have entered a plea of guilty. Zarate claimed that the performance of his attorney was deficient because Zarate's attorney failed to inform Zarate of the immigration consequences of a guilty plea. The parties have stipulated that the sentencing court made no inquiry regarding Zarate's citizenship during the taking of Zarate's plea.

The district court denied Zarate's motion without an evidentiary hearing, and Zarate appealed. We moved the appeal to our docket and granted Zarate's motion to expedite the appeal because of imminent deportation proceedings pending against Zarate.

ASSIGNMENT OF ERROR

Zarate assigns that the district court erred in denying Zarate an evidentiary hearing and dismissing Zarate's motion for postconviction relief.

STANDARD OF REVIEW

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. Thomas, 262 Neb. 138, 629 N.W.2d 503 (2001). However, when reviewing a question of law, an appellate court reaches a conclusion independent of the lower court. Id.

ANALYSIS

We first note that although Zarate was not sentenced to incarceration, court-ordered probation constitutes "custody under sentence" for postconviction relief remedies under the Nebraska Postconviction Act. See, Neb.Rev.Stat. § 29-3001 (Reissue 1995); State v. Styskal, 242 Neb. 26, 493 N.W.2d 313 (1992). At the time that Zarate's postconviction motion was filed, his term of probation had not yet expired and he was in "custody" for postconviction purposes. The record also reflects that the State had filed a motion for revocation of Zarate's probation, which was pending at the time the instant appeal was taken. Consequently, we conclude that on the record presented to us, Zarate is entitled to ask for postconviction relief. See id.

An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002). In order to sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defendant. Thomas, supra.

Normally, a voluntary guilty plea waives all defenses to a criminal charge.

651 N.W.2d 221

However, in a postconviction action brought by a defendant convicted on the basis of a guilty plea, a court will consider an allegation that the plea was the result of ineffective assistance of counsel. State v. Bishop, 263 Neb. 266, 639 N.W.2d 409 (2002). When a conviction is based on a guilty plea, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the defendant shows a reasonable probability that, but for the errors of counsel, the defendant would have insisted on going to trial rather than pleading guilty. Thomas, supra. In this case, Zarate has alleged that he would have insisted on going to trial had he been informed of the possibility of deportation. For purposes of determining whether he is entitled to an evidentiary hearing, Zarate properly alleged facts sufficient to satisfy the prejudice requirement of an ineffective assistance of counsel claim

The initial question, however, is whether Zarate's counsel was deficient—that is, whether counsel failed to perform at least as well as a criminal lawyer with ordinary training and skill in the area. See State v. Long, 264 Neb. 85, 645 N.W.2d 553 (2002). In determining whether counsel's performance was deficient, there is a strong presumption that counsel acted reasonably. State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002).

Stated more specifically, the question presented is whether Zarate's guilty plea was "involuntary" or "unintelligent" as a result of ineffective assistance of counsel, because Zarate's counsel failed to supply Zarate with relevant information regarding the consequences of the plea. "Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice `was within the range of competence demanded of attorneys in criminal cases.'" Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), quoting McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). "[A] defendant who pleads guilty upon the advice of counsel `may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.'" Hill, 474 U.S. at 56-57, 106 S.Ct. 366, quoting Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

When a defendant pleads guilty on the advice of counsel, the attorney has the duty to advise the defendant of the available options and possible consequences. Hawkman v. Parratt, 661 F.2d 1161 (8th Cir.1981). A guilty plea must represent the...