1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional questions that do not involve a factual dispute as a matter of law.
2. Criminal Law: Sentences: Judgments. In a criminal case, entry of judgment occurs with the imposition of a sentence.
Appeal from the District Court for Lancaster County: Stephanie F. Stacy, Judge.
Joshua W. Weir, of Dornan, Lustgarten & Troia, 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.
Yannick K. Yuma pled no contest to two misdemeanors and was sentenced to two concurrent 1-year terms of imprisonment. Because of credit for time served, he was released from custody on the same day he was sentenced. He subsequently moved to withdraw his guilty pleas, claiming his defense attorney did not properly advise him of the immigration consequences of conviction at the time he entered his pleas. The district court for Lancaster County concluded that it lacked jurisdiction to consider Yuma's motion, because he had completed his sentences and had been released from custody. Based upon our recent decision in State v. Gonzalez,  we reverse, and remand for further proceedings.
Yuma was born in Zaire in 1985. He was granted asylum and immigrated to the United States in 2001. In August 2009, [286 Neb. 245] he was charged in the district court for Lancaster County with one count of strangulation, a Class IV felony, and one count of domestic assault in the first degree, a Class III felony. He entered pleas of not guilty on both counts.
In March 2010, the State filed an amended information pursuant to a plea agreement. It charged Yuma with one count of attempted strangulation and one count of domestic assault in the third degree, both Class I misdemeanors. Yuma pled no contest to both counts. Before accepting the pleas, the judge advised Yuma that "conviction of the offenses for which you have been charged may have the consequence of removal from the United States, or denial of naturalization pursuant to the laws of the United States." When asked if he understood the advisement, Yuma replied in the affirmative. On April 7, Yuma was sentenced to imprisonment for 1 year on each count, with the sentences to be served concurrently. He was given credit for 247 days served. Because of the credit, Yuma was released from custody the same day he was sentenced.
In September 2011, Yuma filed a petition for writ of error coram nobis. After an evidentiary hearing on his petition but before any ruling, he obtained leave of court to amend and filed a common-law motion to withdraw his pleas and vacate his convictions. Relying upon Padilla v. Kentucky,  he alleged he was denied effective assistance of counsel at the time of his pleas, because his lawyer never asked about his "citizenship/ immigration status" or "inform[ed] him of the deportation consequences of his . . . plea, " despite the fact that "deportation is presumptively mandatory" for noncitizens convicted of domestic assault. Yuma alleged that he was currently facing deportation as a result of his convictions and that his counsel's ineffective assistance constituted a " '[m]anifest injustice, '" which entitled him to the relief he sought.
After conducting a second evidentiary hearing, the district court found that because Yuma was released from custody before seeking to withdraw his pleas, it was necessary to [286 Neb. 246] consider the jurisdictional issue of "whether a common-law Motion to Withdraw Plea is available to a defendant whose sentence has been completed." The court examined our cases addressing the various means of collaterally attacking a plea-based conviction on the ground that the defendant was not informed or aware of immigration consequences and noted that we had not squarely addressed the jurisdictional issue presented in this case. The court concluded:
While it is possible that, once the issue is squarely before it, the Nebraska Supreme Court may conclude that having served one's sentence is a distinction which should not make a difference in the context of a common-law Motion to Withdraw Plea, that sort ...