State v. Medina-Liborio , 285 Neb. 626 ( 2013 )

Nebraska Advance Sheets
626 285 NEBRASKA REPORTS
State of Nebraska, appellee, v. H ector
Medina-Liborio, appellant.
___ N.W.2d ___
Filed April 5, 2013. No. S-12-200.
1. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
2. Criminal Law: Pleas: Proof. To withdraw a plea under Neb. Rev. Stat.
§ 29-1819.02 (Reissue 2008), all a defendant must show is (1) that the court
failed to give all or part of the advisement and (2) that the defendant faces an
immigration consequence which was not included in the advisement given.
3. Statutes. Statutory language is to be given its plain and ordinary meaning.
4. ____. It is not within the province of the courts to read a meaning into a statute
that is not there or to read anything direct and plain out of a statute.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Reversed and remanded for further
proceedings.
Matthew S. McKeever and Kathleen Koenig Rockey, of
Copple, Rockey, McKeever & Schlecht, P.C., L.L.O., for
appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
In 2002, the Nebraska Legislature enacted a statute which
requires judges, prior to accepting a plea of guilty or nolo con-
tendere, to administer a specific advisement regarding possible
consequences of the conviction for persons who are not citi-
zens of the United States.1 The statute further provides that if
the advisement is not given and the defendant can subsequently
show that he or she may be removed from the United States
1
2002 Neb. Laws, L.B. 82, § 13, codified at Neb. Rev. Stat. § 29-1819.02
(Reissue 2008).
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STATE v. MEDINA-LIBORIO 627
Cite as 285 Neb. 626or denied naturalization as a consequence of the plea-based
conviction, the court on the defendant’s motion “shall vacate
the judgment and permit the defendant to withdraw the plea of
guilty or nolo contendere and enter a plea of not guilty.”2 The
question presented in this appeal is whether the court may deny
a motion to set aside a plea under this statute upon proof by the
State that a defendant who was not given the required advise-
ment was nevertheless aware of the immigration consequences
of the plea and resulting conviction.
BACKGROUND
At a hearing on November 22, 2010, Hector Medina-Liborio
pled no contest to an amended information charging one count
of attempted first degree sexual assault of a child and one
count of kidnapping. The court subsequently sentenced him to
20 to 25 years’ imprisonment on the attempted sexual assault
conviction and to 20 to 25 years’ imprisonment on the kidnap-
ping charge, the sentences to run consecutively.
Medina-Liborio filed a timely direct appeal, asserting in
part that the district court erred in accepting his pleas without
giving him the advisement required by § 29-1819.02. That
statute requires:
(1) Prior to acceptance of a plea of guilty or nolo con-
tendere to any offense punishable as a crime under state
law, except offenses designated as infractions under state
law, the court shall administer the following advisement
on the record to the defendant:
IF YOU ARE NOT A UNITED STATES CITIZEN,
YOU ARE HEREBY ADVISED THAT CONVICTION
OF THE OFFENSE FOR WHICH YOU HAVE BEEN
CHARGED MAY HAVE THE CONSEQUENCES OF
REMOVAL FROM THE UNITED STATES, OR DENIAL
OF NATURALIZATION PURSUANT TO THE LAWS
OF THE UNITED STATES.
(2) . . . If, on or after July 20, 2002, the court fails to
advise the defendant as required by this section and the
2
§ 29-1819.02(2).
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628 285 NEBRASKA REPORTS
defendant shows that conviction of the offense to which
the defendant pleaded guilty or nolo contendere may have
the consequences for the defendant of removal from the
United States, or denial of naturalization pursuant to the
laws of the United States, the court, on the defendant’s
motion, shall vacate the judgment and permit the defend­
ant to withdraw the plea of guilty or nolo contendere
and enter a plea of not guilty. Absent a record that the
court provided the advisement required by this section,
the defendant shall be presumed not to have received the
required advisement.
In a memorandum opinion, the Court of Appeals agreed that
the district court failed to give the advisement required by this
statute but denied relief, reasoning that Medina-Liborio’s rem-
edy was to file a motion to withdraw his pleas.3 Neither party
has challenged that determination.
Medina-Liborio then filed a motion to withdraw his pleas,
alleging that the district court failed to give him the advise-
ment required by § 29-1819.02 and that he faces immigration
consequences as the result of his no contest plea-based con-
victions. At an evidentiary hearing on this motion, the district
court received the bill of exceptions from the plea hearing
and a detainer issued by the U.S. Department of Homeland
Security advising the Nebraska Department of Correctional
Services that Medina-Liborio had been ordered deported or
removed from the United States, and requesting Nebraska
officials to notify the Department of Homeland Security at
least 30 days prior to his release. The State, over a relevance
objection, offered recorded telephone conversations between
Medina-Liborio and members of his family. In these conver-
sations, which took place prior to the date Medina-Liborio
entered his pleas, he discussed deportation as a consequence of
conviction. The State also offered the testimony, over Medina-
Liborio’s relevance and attorney-client privilege objection, of
the attorney who represented him prior to and at the time he
entered his pleas. This attorney testified, subject to his own
3
See State v. Medina-Liborio, No. A-11-147, 2011 WL 3615572 (Neb. App.
Aug. 16, 2011) (selected for posting to court Web site).
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Cite as 285 Neb. 626assertion of the attorney-client privilege, that he had advised
Medina-Liborio that if convicted of the charges, he would
be deported.
The district court ultimately denied Medina-Liborio’s motion
to withdraw his pleas. It reasoned that the plain language of
§ 29-1819.02 must be read in light of the legislative intent
expressed in Neb. Rev. Stat. § 29-1819.03 (Reissue 2008),
concluding:
[Here,] the concerns of the legislature about a
Defendant entering a plea without understanding the pos-
sible deportation or naturalization consequences [are] met
as the State has submitted evidence that [Medina-Liborio]
not only knew that he might be deported but that he in
fact understood that he would be deported based on the
convictions which are the subject matter of the pend-
ing motion.
The court further noted that to allow defendants who know the
consequences set forth in § 29-1819.02 to withdraw the pleas
would allow such individuals to “game” the system by
hoping that the trial court would not give the admonitions
set forth in the statute and then such Defendants could
proceed to sentencing and if they felt the sentences were
extremely harsh or excessive they could withdraw their
pleas, enter pleas of not guilty and start the proceeding all
over again contemplating for a different result.
Medina-Liborio filed this timely appeal. We moved the case
to our docket on our own motion pursuant to our statutory
authority to regulate the caseloads of the appellate courts of
this state.4
ASSIGNMENTS OF ERROR
Medina-Liborio assigns, restated and consolidated, that the
district court erred in (1) denying his motion to set aside his
pleas, (2) admitting irrelevant evidence relating to whether he
actually knew the immigration consequences of his pleas prior
to entering them, and (3) admitting testimony from his former
attorney that was subject to the attorney-client privilege.
4
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
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STANDARD OF REVIEW
[1] Resolution of this appeal will require that we determine
the scope and extent of the statutory remedy which Medina-
Liborio seeks to employ. To the extent an appeal calls for statu-
tory interpretation or presents questions of law, an appellate
court must reach an independent conclusion irrespective of the
determination made by the court below.5
ANALYSIS
[2] We have previously held that all a defendant must show
to withdraw a plea under § 29-1819.02 is (1) that the court
failed to give all or part of the advisement and (2) that the
defendant faces an immigration consequence which was not
included in the advisement given.6 Here, it is undisputed that
the district court did not give Medina-Liborio any portion of
the required statutory advisement prior to accepting his no
contest pleas and that he faces the consequence of removal
from the United States as a result of his plea-based convictions.
Standing alone, these two facts would clearly entitle Medina-
Liborio to withdraw his pleas pursuant to § 29-1819.02. But
there is a third undisputed historical fact proved by the State,
which is that prior to entering his pleas, Medina-Liborio was
aware from other sources that conviction could result in his
deportation. The issue presented is whether such knowledge
constitutes a legal basis for denying the relief which Medina-
Liborio seeks.
[3,4] In State v. Mena-Rivera,7 the State argued that a person
seeking to withdraw a plea on the ground that he or she was
not given the advisement required by § 29-1819.02 is required
to show prejudice. We rejected this argument, noting that our
case law “has made clear that only two elements must be met
before a defendant can withdraw his or her plea [pursuant to
§ 29-1819.02]; and prejudice is not one of them.”8 We also
5
State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010); State v. Yos-
Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).
6
State v. Mena-Rivera, supra note 5. See State v. Yos-Chiguil, supra note 5.
7
State v. Mena-Rivera, supra note 5.
8
Id. at 954, 791 N.W.2d at 619.
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Cite as 285 Neb. 626held that the advisement required by § 29-1819.02 must be
given immediately before the entering of the plea, even if it
was also given at an earlier stage of the proceeding. In this
case, the State acknowledges that Medina-Liborio was not
required to prove that he was prejudiced by the failure of the
district court to give the advisement. But it urges us to hold
as a matter of first impression that “[i]f the State establishes
that a defendant knew that he would be deported by reason of
his plea-based conviction and, thus, was not prejudiced by the
district court’s failure to give the statutory immigration advi-
sory, a defendant should not be allowed to withdraw his plea
after judgment.”9 The State’s proposed limitation on the statu-
tory mandate requiring a court to permit withdrawal of a plea
in the specified circumstances is nowhere to be found in the
language of § 29-1819.02. Statutory language is to be given its
plain and ordinary meaning.10 And it is well established that it
is not within the province of the courts to read a meaning into
a statute that is not there or to read anything direct and plain
out of a statute.11
But the State contends that the district court correctly reached
the construction it seeks by reading § 29-1819.02 in conjunc-
tion with § 29-1819.03, in which the Legislature expressed its
intent in requiring the advisement. Section 29-1819.03 pro-
vides in relevant part:
The Legislature finds and declares that in many
instances involving an individual who is not a citizen
of the United States and who is charged with an offense
punishable as a crime under state law, a plea of guilty or
nolo contendere is entered without the defendant knowing
that a conviction of such offense is grounds for removal
from the United States, or denial of naturalization pursu-
ant to the laws of the United States. Therefor, it is the
intent of the Legislature in enacting this section and
9
Brief for appellee at 7.
10
State v. Graff, 282 Neb. 746, 810 N.W.2d 140 (2011); State v. Halverstadt,
282 Neb. 736, 809 N.W.2d 480 (2011).
11
State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009); State v. Stafford,
278 Neb. 109, 767 N.W.2d 507 (2009).
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section 29-1819.02 to promote fairness to such accused
individuals by requiring in such cases that acceptance of
a guilty plea or plea of nolo contendere be preceded by an
appropriate warning of the special consequences for such
a defendant which may result from the plea.
It is the State’s position that because the Legislature intended
to protect only those defendants who did not know the immi-
gration consequences of a conviction, the remedy provided
by the Legislature in § 29-1819.02 should not be available
if the State demonstrates that the defendant in fact knew
such consequences.
But § 29-1819.03 does not support the State’s argument. The
Legislature stated in § 29-1819.03 that in cases “involving an
individual who is not a citizen of the United States and who is
charged with an offense punishable as a crime under state law,”
it intended to “promote fairness to such accused individuals
by requiring in such cases that acceptance of a guilty plea or
plea of nolo contendere be preceded by an appropriate warning
of the special consequences for such a defendant which may
result from the plea.” (Emphasis supplied.) While the reason
was that “in many instances” these individuals did not know
that “a conviction of such offense” had immigration conse-
quences, the intent was to require the advisement for all “such”
individuals, i.e., individuals who are not citizens of the United
States. Thus, the State’s reliance on § 29-1819.03 as expressing
an intent to benefit only those defendants who are not in fact
aware of the immigration consequences of their pleas is mis-
placed. Instead, the statute on its face states that because some
noncitizens may not understand immigration consequences, all
noncitizens accused of a crime must be given the advisement.
And that is entirely consistent with the remedy the Legislature
adopted in § 29-1819.02.
Even if § 29-1819.03 expressed an intent to promote fair-
ness to only noncitizens who were not aware of the immigra-
tion consequences of conviction, our resolution of this appeal
would not change. Simply put, § 29-1819.03 defined the
problem perceived by the Legislature, but § 29-1819.02 artic-
ulated the remedy which it devised to address the problem.
The Legislature could have adopted any number of remedies.
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STATE v. MEDINA-LIBORIO 633
Cite as 285 Neb. 626For example, it could have required that each defendant be
examined by the district court to determine the extent of his
or her understanding of the immigration consequences of a
plea-based conviction, and then given an advisement only if
such consequences were not completely understood. But it
chose a different and arguably simpler and more workable
remedy: requiring that each defendant be given the advise-
ment, with a certain consequence for failure to do so, thereby
ensuring that all noncitizen defendants understand the con-
sequences of conviction before entering a plea. It is not our
function to alter the remedy the Legislature chose by reading
language into the statute which the Legislature could have
included but did not.
Alternatively, the State cites State v. Mindrup12 in support of
its argument that failure to advise a defendant of certain rights
may be excused by a showing that the defendant was aware of
such rights. In that case, the defendant contended that her plea
was not given knowingly, voluntarily, and intelligently, because
the county judge failed to engage her in a dialog sufficient to
determine whether (1) she knew and understood the constitu-
tional rights which would be waived by the plea and (2) she
understood the charges and potential penalties. We concluded
that while there may have been some deficiencies in the man-
ner in which the court advised the defendant, the record estab-
lished she was aware of her rights, the charges against her, and
the possible penalties, and that thus there was no prejudice to
any of her constitutional rights.
Mindrup is distinguishable because it did not involve a stat-
ute granting a specific right to an advisement and imposing a
specific statutory consequence if the advisement is not given.
As noted, when a specific statutory right is at issue, we are
bound by the terms of the statute as enacted by the Legislature.
We are not free to create a judicial exception to an absolute
statutory rule.
Finally, we do not share the district court’s concern that
applying § 29-1819.02 as it is written will somehow permit
defendants to “game the system.” The statute makes the trial
12
State v. Mindrup, 221 Neb. 773, 380 N.W.2d 637 (1986).
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judge responsible for giving the advisement. The prosecutor,
in the interest of securing a valid plea-based conviction, also
has a role in making certain that the advisement is given. A
defendant can game the system only if both the court and the
prosecutor fail to ensure that the defendant is afforded his or
her statutory rights, i.e., actually given the advisement. If the
advisement is given as the law requires, there is no game for a
defendant to play.
We conclude that Medina-Liborio established that he was not
given the required statutory advisement regarding immigration
consequences of conviction and that he actually faces a con-
sequence as a result of his convictions. Under § 29-1819.02,
he was entitled to have his judgments of conviction vacated
and to withdraw his pleas and enter pleas of not guilty. The
district court erred in not granting that relief. Because we reach
this conclusion, we need not address Medina-Liborio’s other
assignments of error.
CONCLUSION
For the reasons discussed, we reverse, and remand to
the district court for further proceedings consistent with this
opinion.
R eversed and remanded for
further proceedings.
Cassel, J., concurring.
If this court were writing on a clean slate, I would agree with
the dissenting opinion. But the court has already rejected preju-
dice as an element of the right to withdraw a plea conferred
by Neb. Rev. Stat. § 29-1819.02 (Reissue 2008).1 Because it is
within the power of the Legislature to change the elements of
the statutory right and our prior decisions have not provoked a
legislative change, I am constrained to follow the court’s previ-
ous interpretation.
In both State v. Yos-Chiguil2 and State v. Mena-Rivera,3 this
court articulated only two elements for withdrawal of a plea
1
See State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010).
2
State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).
3
State v. Mena-Rivera, supra note 1.
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Cite as 285 Neb. 626under § 29-1819.02. The first element is that the court failed
to give all or part of the advisement.4 The second is that the
defendant faces an immigration consequence which was not
included in the advisement given.5
I agree with the dissent that Nebraska has long adhered
to the principle that a conviction will not be set aside in the
absence of a showing that a nonevidential error prejudiced
the defendant.6 This principle has been codified for over
90 years.7
But in adopting § 29-1819.02, the Legislature provided
a specific procedural ground for overturning a conviction,
and it did not include prejudice as an element. A rule exists
to resolve any perceived conflict between § 29-1819.02 and
§ 29-2308. To the extent there is a conflict between two stat-
utes, the specific statute controls over the general statute.8
Because § 29-1819.02 is the specific statute, it would prevail
over § 29-2308.
The procedure advocated by the dissent would effectively
add the element of prejudice to § 29-1819.02. According to
the dissent, it adheres to this court’s holdings that the defend­
ant does not need to show prejudice to vacate his or her plea.
The dissent instead would allow the State to show a lack of
prejudice. This parsing of procedure would not change the
result—prejudice would become an element of withdrawing a
plea under § 29-1819.02. I agree that it should be an element,
but this court has previously held otherwise.
The Legislature could amend the statute, but its inaction
thus far suggests acquiescence. In most matters, it is more
important that the applicable rule of law be settled than that
it be settled right.9 This is commonly true even where the
4
See id.
5
See id.
6
See, e.g., State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990).
7
See Neb. Rev. Stat. § 29-2308 (Reissue 2008).
8
State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012).
9
See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 52 S. Ct. 443, 76 L.
Ed. 815 (1932) (Brandeis, J., dissenting).
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error is a matter of serious concern, provided correction can
be had by legislation.10 By an amendment to § 29-1819.02,
the Legislature could require a defendant to prove prejudice
or permit the State to prove its absence. But no amendment
has been forthcoming. Ordinarily, where a statute has been
judicially construed and that construction has not evoked an
amendment, it will be presumed that the Legislature has acqui-
esced in the court’s determination of the Legislature’s intent.11
While I agree that prejudice to the defendant should be an ele-
ment of § 29-1819.02, I adhere to the court’s previous decision
that it is not. Thus, I join the majority opinion.
10
Id.
11
State v. Neiss, 260 Neb. 691, 619 N.W.2d 222 (2000), abrogated on other
grounds, State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006).
Heavican, C.J., dissenting.
I respectfully disagree with the decision of the majority
reversing the decision of the district court. Specifically, I would
conclude that the State’s evidence showing Medina-Liborio
knew he would be deported upon being convicted was relevant
in this case. Ultimately, I would find that Medina-Liborio was
not entitled to have his judgments of conviction vacated and to
withdraw his pleas and enter pleas of not guilty.
Our case law interpreting Neb. Rev. Stat. § 29-1819.02
(Reissue 2008) has made clear that a defendant needs to estab-
lish only two elements in order to withdraw his or her plea
pursuant to this statute—and prejudice is not one of them. In
State v. Yos-Chiguil,1 we stated that all a defendant must show
to withdraw a plea under § 29-1819.02 is that (1) the court
failed to give all or part of the advisement and (2) the defend­
ant faces an immigration consequence which was not included
in the advisement given. We reasserted this holding in State v.
Mena-Rivera.2
In interpreting a statute essentially identical to § 29-1819.02,
the California Supreme Court held that in order to prevail on
1
State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).
2
State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010).
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STATE v. MEDINA-LIBORIO 637
Cite as 285 Neb. 626a motion to vacate a plea due to the court’s failure to inform
a defendant of immigration consequences, a defendant must
establish that (1) he or she was not properly advised of the
immigration consequences as provided by the statute; (2) there
exists, at the time of the motion, more than a remote possibil-
ity that the conviction will have one or more of the specified
adverse immigration consequences; and (3) he or she was
prejudiced by the nonadvisement.3 Such interpretation adds a
third requirement in placing the burden on a defendant to show
that he or she was prejudiced by the court’s error.
I do not advance here, as did the California Supreme Court,
that a defendant must show prejudice in order to vacate his or
her plea. However, I find that the California Supreme Court’s
analysis in coming to this conclusion is applicable to the
facts of this case. I agree with the holdings of our court that
a defendant does not need to show prejudice to vacate his or
her plea. But unlike the majority, I would conclude that under
§ 29-1819.02, the State may show evidence that a defendant
was not prejudiced so that a defendant may not withdraw his
or her plea, even though his or her burden has been satisfied. I
come to this conclusion based upon the reasoning demonstrated
by the California Supreme Court.
The California Supreme Court had no issue with requir-
ing a defendant to demonstrate that he or she was prejudiced
by incomplete advisements under the statute. This holding
was based upon the California Legislature’s express intent
in enacting the statute and a long-held “legislative command
that courts disregard technical errors in procedure unless they
impact the substantial rights of defendants.”4 I find this analy-
sis logical.
Our Legislature’s enactment of § 29-1819.02 was accom-
panied by the enactment of Neb. Rev. Stat. § 29-1819.03
(Reissue 2008), similar to the California scheme, which made
findings that a defendant’s knowledge of the deportation
3
People v. Superior Court (Zamudio), 23 Cal. 4th 183, 999 P.2d 686, 96
Cal. Rptr. 2d 463 (2000).
4
Id. at 199, 999 P.2d at 696, 96 Cal. Rptr. 2d at 474. See Cal. Penal Code
§ 1404 (West 2011).
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638 285 NEBRASKA REPORTS
consequences of his plea is both relevant and important.
Concern over the defendant’s actual knowledge was the reason
for enacting the statues, as provided by the legislative findings
of § 29-1819.03:
The Legislature finds and declares that in many
instances involving an individual who is not a citizen
of the United States and who is charged with an offense
punishable as a crime under state law, a plea of guilty or
nolo contendere is entered without the defendant knowing
that a conviction of such offense is grounds for removal
from the United States, or denial of naturalization pur-
suant to the laws of the United States. Therefor, it is
the intent of the Legislature in enacting this section and
section 29-1819.02 to promote fairness to such accused
individuals by requiring in such cases that acceptance of
a guilty plea or plea of nolo contendere be preceded by an
appropriate warning of the special consequences for such
a defendant which may result from the plea.
(Emphasis supplied.)
As provided, the Legislature’s purpose was to ensure that
a noncitizen defendant would know of the deportation conse-
quences of his or her plea. Thus, the fact that a defendant actu-
ally knew of the deportation consequences related to his or her
plea is not irrelevant.
Furthermore, Nebraska law contains a similar statutory com-
mand to the one found in California’s law—that this court must
disregard nonprejudicial errors in procedure in considering
overturning a criminal judgment. Neb. Rev. Stat. § 29-2308
(Reissue 2008) provides: “No judgment shall be set aside . . .
in any criminal case . . . for error as to any matter of pleading
or procedure if the appellate court, after an examination of the
entire cause, considers that no substantial miscarriage of jus-
tice has actually occurred.” Here, no substantial miscarriage of
justice occurred, because the defendant actually knew he would
be deported if he pled guilty.
In keeping with the intent of these statutory provisions,
when a district court commits the error of failing to give the
statutory advisement of § 29-1819.02, the State should be able
Nebraska Advance Sheets
STATE v. MEDINA-LIBORIO 639
Cite as 285 Neb. 626to present evidence that a defendant was aware of the deporta-
tion consequences of his or her plea. If the State can show that
a defendant actually knew he or she would be deported by rea-
son of his or her plea and conviction, a defend­ nt should not
a
be allowed to withdraw his or her plea after judgment, because
a judgment cannot be set aside in this State when no substan-
tial miscarriage of justice has occurred.
Here, the State presented evidence at the hearing on Medina-
Liborio’s motion to withdraw pleas establishing that he was
aware he would be deported, or subject to deportation, as a
result of his no contest pleas. The evidence consisted of record-
ings of jail telephone calls from November 15 to November
22, 2010, between Medina-Liborio and his wife and Medina-
Liborio’s father-in-law. Additional evidence consisted of tes-
timony of Medina-Liborio’s trial counsel concerning what
he informed Medina-Liborio prior to the entry of his pleas.
Medina-Liborio’s no contest pleas were entered on November
22. Although Medina-Liborio contests the evidence related
to his conversations with his attorney, the jail telephone call
recordings on their own are sufficient to establish Medina-
Liborio knew he would be deported, or subject to deportation,
as a result of his no contest pleas.
Because Medina-Liborio knew he would be deported, he
was not prejudiced by the district court’s failure to give the
statutory deportation consequences advisory. Thus, no substan-
tial miscarriage of justice actually occurred in this case and
Medina-Liborio’s judgments of conviction should not be set
aside. Accordingly, I would have affirmed the decision of the
district court denying Medina-Liborio’s motion to withdraw
his pleas.