State v. Garcia

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/15/2019 08:06 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. GARCIA
Cite as 301 Neb. 912
State of Nebraska, appellee, v.
A lejandro Garcia, appellant.
___ N.W.2d ___
Filed December 14, 2018. No. S-17-1217.
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 on
the part of the trial court, refusal to allow a defendant’s withdrawal of a
plea will not be disturbed on appeal.
2. Statutes: Appeal and Error. To the extent an appeal calls for statutory
interpretation or presents questions of law, an appellate court must reach
an independent conclusion irrespective of the determination made by the
court below.
3. Statutes: Intent. When interpreting a statute, the starting point and
focus of the inquiry is the meaning of the statutory language, understood
in context.
4. Statutes. Statutory language is to be given its plain and ordinary
meaning.
5. Pleas: Proof. To withdraw a plea under Neb. Rev. Stat. § 29-1819.02
(Reissue 2016), 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 advise-
ment given.
Appeal from the District Court for Platte County, Robert R.
Steinke, Judge, on appeal thereto from the County Court for
Platte County, Frank J. Skorupa, Judge. Judgment of District
Court affirmed.
Jamie L. Arango, of Arango Law, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
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STATE v. GARCIA
Cite as 301 Neb. 912
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Like many other states, Nebraska requires trial judges,
prior to accepting a guilty or no contest plea, to advise the
defendant on the record that a conviction may have certain
immigration consequences. The same statute provides that if
the court fails to give the required advisement and the defend­
ant faces the immigration consequences about which he or
she was not advised, the defendant has a right to have the
judgment vacated, to withdraw the plea, and to enter a plea of
not guilty.
In this case, Alejandro Garcia seeks to withdraw a no con-
test plea he entered years ago pursuant to that statute. Garcia
concedes, however, that prior to accepting his plea, the trial
court properly recited the advisement. Even so, Garcia con-
tends that he is entitled to withdraw his plea, because an
interpreter translated a word improperly when she recited the
court’s advisement to Garcia in Spanish. The county court
overruled Garcia’s motion, and the district court, sitting as an
intermediate appellate court, affirmed. Because we conclude
that the advisement statute does not authorize the withdrawal
of pleas based on inadequate translation, we affirm.
BACKGROUND
Garcia’s Plea of No Contest.
On August 23, 2011, the State filed a criminal complaint
in the county court for Platte County, charging Garcia with
third degree domestic assault, false reporting, and obstruct-
ing government operations. During a group arraignment on
August 29, the court advised Garcia of various statutory and
constitutional rights relating to those charges. In particular,
the court stated the following: “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 consequence
of removal from the United States or denial of naturalization
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pursuant to the laws of the United States.” With the exception
of the use of the singular form of the word “consequence,” the
foregoing is a verbatim recitation of the statutory advisement
courts are required to administer prior to the acceptance of a
guilty or no contest plea under Neb. Rev. Stat. § 29-1819.02(1)
(Reissue 2016).
An interpreter provided a Spanish translation of the court’s
advisement to Garcia of his various constitutional and statutory
rights, including the advisement required by § 29-1819.02(1).
Garcia told the court that he heard and understood those rights.
In response to questions from the court, Garcia said that he did
not have an attorney, but would like an attorney to represent
him. The court stated it would appoint a public defender to
represent Garcia.
On September 12, 2011, Garcia was present for a sec-
ond group arraignment, this time represented by counsel. The
court again advised Garcia regarding his various constitutional
and statutory rights, including the advisement required by
§ 29-1819.02(1). Again, Garcia said that he understood his
rights. Pursuant to a plea agreement, Garcia entered a plea
of no contest to the third degree domestic violence charge,
and the other charges were dismissed. The county court later
sentenced Garcia to 60 days’ jail time with credit for 58 days
already served.
Initial Motion to Withdraw Plea.
Over 4 years later, Garcia filed a motion in the county
court to withdraw his plea of no contest. Garcia alleged both
that he received ineffective assistance of counsel and that
he did not receive the immigration advisement required by
§ 29-1819.02(1) prior to entering his plea. The county court
issued an order stating that it gave the immigration advise-
ment to Garcia prior to the entry of his plea and denied
the motion.
Several weeks later, Garcia filed a motion to reconsider. In
it, he acknowledged that the county court properly gave the
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Cite as 301 Neb. 912
immigration advisement required by § 29-1819.02(1) prior to
the entry of his plea, but alleged that the Spanish interpreter
incorrectly translated one of the words in the advisement.
Garcia asserted that the Spanish translator used the Spanish
word for “expatriate” when she should have used the Spanish
word for “removal.”
The county court overruled the motion to reconsider, because
Garcia had brought no evidence in support of his motion.
Garcia appealed the denial of his motion to reconsider to
the district court, but the district court dismissed the appeal
as untimely.
Second Motion to Withdraw Plea.
On February 22, 2017, Garcia filed a “Motion to Vacate”
in the county court. Like the motion to reconsider, it
acknowledged that the court gave the advisement required
by § 29-1819.02 immediately prior to the entry of Garcia’s
plea, but alleged that the Spanish translation was not accurate
because of the improper translation of the word “removal.”
At a hearing on the motion, Garcia offered and the court
received a document prepared by Janeth Murillo, a certified
court interpreter. In the document, Murillo set forth a transcrip-
tion of the words of the county court judge at the September
12, 2011, hearing; the court interpreter’s Spanish translation of
the judge’s words; Murillo’s translation of the court interpret-
er’s Spanish interpretation back into English; and an alternative
Spanish translation showing how Murillo would have inter-
preted the court’s words. This document showed that, accord-
ing to Murillo, the court interpreter used the Spanish word for
“expatriate” instead of “removal” in giving the advisement.
Garcia argued that “expatriate” means to “live in a country
other than the one where you were born” and that because he
was born in Cuba, he was not advised that a conviction could
result in his removal from the United States.
The county court overruled this motion, stating that this
claim was the same as the one Garcia had brought in 2015
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and that Garcia had not brought any “materially and substan-
tially different facts that would require reconsideration of this
particular issue.” Garcia appealed to the district court, which
affirmed, citing the law-of-the-case doctrine. Garcia timely
appealed, and we removed the case to our docket on our own
motion under Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
ASSIGNMENT OF ERROR
While Garcia assigns various errors committed by the dis-
trict court, they can be consolidated into one: that the district
court erred in affirming the county court’s order overruling
Garcia’s motion to vacate on law-of-the-case grounds.
STANDARD OF REVIEW
[1,2] The right to withdraw a plea previously entered is
not absolute, and, in the absence of an abuse of discretion
on the part of the trial court, refusal to allow a defendant’s
withdrawal of a plea will not be disturbed on appeal. State
v. Gach, 297 Neb. 96, 898 N.W.2d 360 (2017). Resolution of
this appeal requires that we determine the scope and extent
of the statutory remedy Garcia seeks to employ. To the extent
an appeal calls for statutory interpretation or presents ques-
tions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court
below. State v. Medina-Liborio, 285 Neb. 626, 829 N.W.2d
96 (2013).
ANALYSIS
Statutory Background.
As alluded to above, § 29-1819.02(1) directs trial courts to
administer the following advisement to a defendant prior to
accepting a plea of guilty or no contest “to any offense punish-
able as a crime under state law, except offenses designated as
infractions under state law”: “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
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REMOVAL FROM THE UNITED STATES, OR DENIAL OF
NATURALIZATION PURSUANT TO THE LAWS OF THE
UNITED STATES.”
Section 29-1819.02(2), in turn, provides a statutory remedy
by which a defendant may withdraw a guilty or no contest plea
in certain circumstances, providing:
If, on or after July 20, 2002, the court fails to advise the
defendant as required by this section and the defend­
ant 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 this case, Garcia asked to withdraw his guilty plea under
§ 29-1819.02(2) after he had already served his sentence for
the conviction associated with that guilty plea. We begin our
analysis by considering whether a trial court has authority to
entertain a motion brought under § 29-1819.02(2) in these
circumstances.
Did County Court Have Authority
to Consider Garcia’s Motion?
On the question of whether § 29-1819.02(2) permits a trial
court to consider a motion to withdraw a guilty plea after the
defendant has completed his or her sentence, we do not write
on a blank slate. Just over 4 years ago, in State v. Rodriguez,
288 Neb. 714, 726, 850 N.W.2d 788, 796 (2014), we held that
§ 29-1819.02(2) gives a court authority “to consider a motion
to withdraw such plea or vacate the judgment regardless of
whether a defendant has completed his or her sentence.” Our
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concurring colleague would prefer to overrule Rodriguez, but
for reasons explained below, we decline to do so.
The concurrence contends that several years before
Rodriguez, we held in State v. Rodriguez-Torres, 275 Neb.
363, 746 N.W.2d 686 (2008), that courts do not have author-
ity to consider a motion brought under § 29-1819.02(2) once
the defendant’s sentence has been served. The concurrence
asserts that the Legislature did not amend § 29-1819.02(2)
after Rodriguez-Torres and that, in Rodriguez, this court
ignored the Legislature’s inaction and “create[d] [a] missing
procedure through a revised interpretation.” Respectfully, we
do not believe this is a correct reading of Rodriguez-Torres
or Rodriguez.
Rodriguez-Torres does contain some language, highlighted
by the concurrence, stating that a trial court lacks authority to
grant relief when a party’s sentence has already been served
and observing that the Legislature has not created a proce-
dure for the withdrawal of a plea in such circumstances. It is
important to note, however, that the guilty pleas the defendant
in Rodriguez-Torres sought to withdraw were accepted before
July 20, 2002.
The date of the pleas at issue in Rodriguez-Torres is impor-
tant, because § 29-1819.02 treats defendants whose pleas were
entered after that date differently from those whose pleas
were accepted before it. It is only defendants whose pleas are
accepted after July 20, 2002, that have a right to withdraw
their plea under the terms of § 29-1819.02(2). Conversely,
a defendant whose plea was accepted before July 20, 2002,
cannot invoke § 29-1819.02(2) and thus must identify some
other statutory procedure for the withdrawal of the plea. Read
in the context of Rodriguez-Torres, wherein the defendant’s
guilty pleas were accepted before July 20, 2002, the language
from Rodriguez-Torres the concurrence relies upon reflects a
conclusion that there was no statutory procedure authorizing
a defendant whose plea was accepted before July 20, 2002,
to withdraw it after the sentence had been served. See, also,
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STATE v. GARCIA
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State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009)
(concluding that holding of Rodriguez-Torres pertained to pleas
entered before July 20, 2002).
Given the limited scope of the holding in Rodriguez-Torres,
we do not agree with the concurrence that this court ignored
legislative inaction following Rodriguez-Torres and “create[d]
[a] missing procedure” in Rodriguez. The plea the defendant in
Rodriguez sought to withdraw was entered after July 20, 2002,
and thus was subject to § 29-1819.02(2), a subsection that was
not at issue or analyzed in Rodriguez-Torres. In fact, the opin-
ion in Rodriguez-Torres quotes the rest of § 29-1819.02, but
omits § 29-1819.02(2).
Because Rodriguez-Torres did not concern § 29-1819.02(2),
its conclusion was not relevant to the question presented
in Rodriguez. The question for this court in Rodriguez was
thus not whether to create a procedure the Legislature had
declined to create; § 29-1819.02(2) explicitly spells out a
procedure that is commenced “on the defendant’s motion.”
See, also, State v. Yos-Chiguil, 278 Neb. at 596, 772 N.W.2d
at 579 (“[b]ut as to such pleas entered after July 20, 2002,
§ 29-1819.02(2) establishes a statutory procedure whereby a
convicted person may file a motion to have the criminal judg-
ment vacated and the plea withdrawn . . .”). Rather, the ques-
tion was whether the fact that the defendant’s sentence had
been completely served precluded the withdrawal of a plea
when the procedure created by § 29-1819.02(2) was invoked.
Finding no language limiting the relief offered by the statute
in this manner, we held that it did not. Now 4 years later, the
Legislature has not amended § 29-1819.02(2), and we still
see no statutory language limiting its relief to individuals still
serving their sentences.
Our conclusions regarding the statutory language should
not be understood to dispute the concurrence’s point that
difficult questions can arise if relief can be granted under
§ 29-1819.02(2) when the defendant’s sentence has been com-
pletely served. We do not, however, see anything that would
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prevent these same difficult questions from arising in cases
in which an individual obtains relief under § 29-1819.02(2)
after serving part of his or her sentence, and no one disputes
that § 29-1819.02(2) allows these defendants to withdraw
their plea if they make the requisite showing under the stat-
ute. These questions might bear on whether, as a matter of
policy, there should be a point at which it is simply too late
to withdraw a plea, but in our view, such a policy question is
for the Legislature. And because we see no indication that the
Legislature limited the relief authorized by § 29-1819.02(2) to
those still serving their sentences, we continue to hold that trial
courts have the authority to consider motions brought under
§ 29-1819.02(2) “regardless of whether a defendant has com-
pleted his or her sentence.” State v. Rodriguez, 288 Neb. 714,
726, 850 N.W.2d 788, 796 (2014).
Does § 29-1819.02(2) Authorize
Withdrawal of Garcia’s Plea?
Because we find that the county court had jurisdiction of
Garcia’s motion to withdraw his plea, we proceed to consider
the merits of his appeal. While Garcia primarily argues on
appeal that the district court’s analysis of the law-of-the-case
doctrine was incorrect, his appeal presents a more foundational
issue: whether § 29-1819.02(2) allows a defendant to withdraw
a guilty or no contest plea if the trial court correctly provided
the advisement, but the defendant contends there was some
error in the translation of the advisement. We turn to that ques-
tion now.
In a number of cases in which we have interpreted and
applied § 29-1819.02(2), we have held that a defendant must
demonstrate two facts in order to withdraw a guilty or no
contest plea under the statute: (1) that the trial court failed to
give all or part of the advisement contained in § 29-1819.02(1)
and (2) that the defendant faces an immigration consequence
that was not included in the advisement given. See, e.g., State
v. Gach, 297 Neb. 96, 898 N.W.2d 360 (2017); Rodriguez,
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supra; State v. Medina-Liborio, 285 Neb. 626, 829 N.W.2d
96 (2013); 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).
Here, by acknowledging that the trial court gave the required
advisement properly, Garcia has effectively conceded that he
cannot demonstrate the first fact that we have said a defend­
ant must demonstrate to withdraw a plea under the statute.
Garcia’s motion is thus premised on § 29-1819.02(2)’s provid-
ing an alternative avenue for defendants to withdraw pleas of
guilty or no contest.
[3,4] Resolving the issue of whether § 29-1819.02(2) pro-
vides an alternative means of withdrawing a plea requires us
to interpret § 29-1819.02(2). When interpreting a statute, the
starting point and focus of the inquiry is the meaning of the
statutory language, understood in context. Kozal v. Nebraska
Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147 (2017).
Statutory language is to be given its plain and ordinary mean-
ing. Medina-Liborio, supra.
A review of the language of § 29-1819.02(2) reveals why
we have repeatedly held that a defendant must show that the
trial court failed to give all or part of the advisement to with-
draw a plea under the statute. Section 29-1819.02(2) explic-
itly conditions the relief described on the court’s “fail[ing]
to advise the defendant as required by this section.” Notably
absent from the statute, however, is any reference to a right to
withdraw a plea based on inadequacies with the translation of
the advisement or even a more general misunderstanding of
the advisement on the part of the defendant.
In other cases in which we interpreted this statute to deter-
mine what a defendant must show in order to withdraw a plea,
we have adhered closely to the statutory text. For example, in
Mena-Rivera, supra, we rejected an argument that a person
seeking to withdraw a plea under the section must demonstrate
prejudice. We pointed out that we had previously interpreted
the statute to require a defendant seeking to withdraw a plea to
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show only two things and that prejudice was not one of them.
Later, in Medina-Liborio, supra, we rejected an argument that
a defendant could not withdraw his plea under this section
if the defendant already knew he would be deported because
of his plea-based conviction. Citing the principle of statutory
interpretation that we will not read a meaning into a statute that
is not there, we explained that the “proposed limitation on the
statutory 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.” Medina-Liborio, 285 Neb. at
631, 829 N.W.2d at 100. And finally, as discussed above, in
State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014), we
rejected the argument that the relief offered by § 29-1819.02(2)
was not available to individuals who had completed their sen-
tences. Again, we relied on the absence of any language in the
statute indicating that the relief was to be limited in the man-
ner urged.
As the discussion of the preceding cases indicates, an inter-
pretation that the remedy set forth in § 29-1819.02(2) extends
to a circumstance not mentioned in the statute would be
anomalous. The only way we could hold that a defendant may
withdraw his plea because of a translation error would be to
read meaning into the statute that is not reflected in its text.
We have not done so when we have previously interpreted
§ 29-1819.02(2), and we do not interpret statutes in that man-
ner generally. See State v. Medina-Liborio, 285 Neb. 626, 829
N.W.2d 96 (2013).
Indeed, if we were to find that § 29-1819.02(2) allows for
the withdrawal of a plea based on inadequate translation, we
would have to read substantial content into the statute that
does not appear in its text. Were we to hold that the statute
extends to translation inadequacies, subsidiary questions such
as when is translation required, by what standards are alleged
translation errors to be evaluated, and by what evidence are
they to be proved would inevitably follow. There is nothing in
the text of the statute that addresses those questions, and we
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are neither well-equipped nor authorized to develop answers
to them on our own. See, Neb. Const. art. II, § 1; Heckman
v. Marchio, 296 Neb. 458, 466, 894 N.W.2d 296, 302 (2017)
(explaining that “‘judicial legislation’” violates article II, § 1,
of the Nebraska Constitution).
[5] For these reasons, we reiterate what we have said previ-
ously: To withdraw a plea under § 29-1819.02, 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 immigra-
tion consequence which was not included in the advisement
given. Medina-Liborio, supra; State v. Mena-Rivera, 280 Neb.
948, 791 N.W.2d 613 (2010). Because Garcia cannot show
that the trial court failed to give all or part of the advisement,
we find that he was not entitled to withdraw his plea under
§ 29-1819.02(2).
Garcia’s Motion Does Not Assert
Constitutional Claim.
At oral argument, Garcia’s counsel contended that Garcia
should be allowed to withdraw his plea under § 29-1819.02(2)
and because the alleged translation errors resulted in a viola-
tion of Garcia’s constitutional right to due process. This court
has said that a defendant’s inability to comprehend criminal
proceedings or communicate in English at such proceedings
can result in a violation of the defendant’s due process and
Sixth Amendment rights. See State v. Alarcon-Chavez, 295
Neb. 1014, 893 N.W.2d 706 (2017). But we have also rec-
ognized that not every translation inadequacy amounts to a
due process violation. See Tapia-Reyes v. Excel Corp., 281
Neb. 15, 27, 793 N.W.2d 319, 328 (2011) (explaining that
“there is no constitutional right to a ‘flawless’ interpreta-
tion”; that “‘[c]ourtroom interpretation is a demanding and
inexact art’”; that “‘the languages involved may not have pre-
cise equivalents for particular words or concepts’”; and that
“[m]inor or isolated inaccuracies, omissions, interruptions, or
other defects in translation are inevitable and do not warrant
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relief where the translation is on the whole reasonably timely,
complete, and accurate, and the defects do not render the
proceeding fundamentally unfair”). Further complicating any
potential due process claim in this case is our observation that
“the failure of a trial court to warn a defendant of immigra-
tion consequences does not implicate a constitutional right.”
State v. Yos-Chiguil, 281 Neb. 618, 626, 798 N.W.2d 832,
840 (2011) (citing Smith v. State, 287 Ga. 391, 697 S.E.2d
177 (2010)).
In the end, we need not resolve the question of whether
Garcia’s due process rights were violated. Garcia’s motion to
vacate did not allege that his due process rights were violated
or seek to withdraw his plea on this basis. As a result, that
question is not before us. See Linda N. v. William N., 289 Neb.
607, 856 N.W.2d 436 (2014) (appellate court will not consider
theory not presented by pleadings).
The sole question raised by Garcia’s motion was whether
he was entitled to withdraw his no contest plea under
§ 29-1819.02(2). Because we have determined that he was not,
we find no error in the overruling of his motion.
CONCLUSION
Section 29-1819.02(2) allows for withdrawal of a guilty
or no contest plea only if the trial court fails to give all or
part of the required advisement and the defendant faces an
immigration consequence that was not included in the advise-
ment given. Because Garcia did not demonstrate that the trial
court failed to give all or part of the required advisement, we
conclude that Garcia was not entitled to withdraw his plea.
Accordingly, we affirm.
A ffirmed.
Freudenberg, J., concurring.
While concurring in the result of the majority opinion,
I respectfully disagree that the county court had statutory
authority to hear the matter. Neb. Rev. Stat. § 29-1819.02
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(Reissue 2016) does not create a remedy for a person to
withdraw his or her guilty or no contest plea after the person
has fully served the sentence associated with the entry of
their plea.
Adopted in 2002, § 29-1819.02 provides in relevant part:
(1) Prior to acceptance of a plea of guilty . . . to any
offense punishable as a crime under state law, except . . .
infractions . . . , 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 defendant shows that conviction of the offense to
which the defendant pleaded guilty . . . 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 . . . and enter a plea of
not guilty.
In State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d
686 (2008), this court addressed the application of the remedy
created by this statute for a person who has completed his or
her sentence. The court directly stated:
In § 29-1819.02, the Legislature gives a court discre-
tion to vacate a judgment or withdraw a plea where a
court has failed to provide the advisement required for
pleas made on or after July 20, 2002. It does not, how-
ever, convey upon a court jurisdiction to do so where a
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party has already completed his or her sentence. Nor has
the Legislature in any other statute allowed for a specific
procedure whereby a person who has been convicted of
a crime and has already served his or her sentence may
later bring a motion to withdraw his or her plea and
vacate the judgment.
....
. . . Years after having served his sentence, [the defend­
ant] now seeks to have his pleas withdrawn and con-
victions vacated. However, no legislatively authorized
procedure exists which allows him to do so. Absent such
a legislative procedure, there is no present recourse for
[the defendant] to withdraw his pleas and vacate the judg-
ments years after having completed his sentences. We,
therefore, determine that the district court did not have
jurisdiction to address [the defendant’s] motion.
Rodriguez-Torres, 275 Neb. at 367-68, 746 N.W.2d at 689-90
(emphasis supplied).
Thus, this court clearly stated its position on the matter, and
following this interpretation of § 29-1819.02, the Legislature
presumptively adopted it, because it took no action to modify
or amend the language of the statute. See State v. Coble, 299
Neb. 434, 908 N.W.2d 646 (2018). Specifically, the Legislature
did not create the identified absent procedure. If the Legislature
felt the Rodriguez-Torres interpretation was incorrect or in
need of clarification, it had 6 years to act before we took such
action ourselves.
Disregarding such legislative acquiescence, this court chose
to create the missing procedure through a revised interpretation
of this issue in State v. Rodriguez, 288 Neb. 714, 850 N.W.2d
788 (2014). In Rodriguez, this court held that by failing to
use language expressly limiting the remedy to a “‘prisoner in
custody under sentence,’” the Legislature implicitly expressed
that the scope of the remedy in § 29-1819.02 was not limited
to those defendants still serving their sentence. See 288 Neb.
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at 724, 850 N.W.2d at 795. This means that convicted persons
can move to withdraw their pleas and vacate their convic-
tions years or even decades after their sentences have been
fully completed.
The Legislature has limited challenges brought under post-
conviction proceedings to periods when the term of sentence
is still being served. The Rodriguez holding now endlessly
extends the possibilities of collateral attacks on criminal con-
victions. I know of no other statutory postconviction remedy
that is so far reaching. This unique lack of time limit on
the remedy, and without specific procedures to implement
this remedy, raises difficult questions. For instance, it is
unclear what the statute of limitations is for charges previously
dismissed pursuant to plea agreements, what the sentenc-
ing restrictions and considerations are following subsequent
convictions for such charges, or how courts will address the
evidentiary problems created by the passage of an extended
period of time. The Legislature’s failure to enact procedures
addressing the questions inherent to such a remedy without
a time limit—after being notified by Rodriguez-Torres of the
necessity therefore—demonstrates that the Legislature did not
actually intend to expand the remedy in the manner that we
determined in Rodriguez.
Furthermore, there is no indication that the Legislature
sought to interfere with federal law in the manner permitted
by the Rodriguez holding. At a time when a trial court under
state law would normally no longer have any jurisdiction
over the criminal case, because the sentence has been fully
served, it is now directed to vacate convictions for the sole
purpose of preventing the imposition of federal immigration
consequences upon these defendants. Setting aside criminal
convictions based upon guilty or no contest pleas in such
circumstances is akin to judicial clemency. This substantially
interferes with the federal government’s ability to impose
immigration consequences under federal law. When enacting
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§ 29-1819.02, the Legislature could not have intended to assist
in the avoidance of federal immigration consequences for
those who had completed their criminal sentences.
Criminal matters deserve finality, and the court’s current
interpretation of this issue, as set forth in Rodriguez, does not
fulfill this objective. I do not believe the county court had the
statutory authority to take up Garcia’s motion to vacate under
§ 29-1819.02, brought after he had fully completed his sen-
tence. Therefore, I agree in the court’s result but respectfully
disagree with its underlying legal basis in this matter.