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State v. Osorio

Supreme Court of Nebraska

August 2, 2013

State of Nebraska, Appellee,
v.
Edgar J. Chiroy Osorio, Appellant.

1. Appeal and Error. To the extent issues of law are presented, an appellate court has an obligation to reach independent conclusions irrespective of the determinations made by the court below.

2. Constitutional Law: Postconviction. A defendant seeking relief under the postconviction statutes must (1) file a verified motion in the court which imposed the prior sentence, stating the grounds relied upon and asking for relief; (2) be in custody under sentence; and (3) allege a denial or infringement of the defendant's constitutional rights.

3. __.: __. A "manifest injustice" common-law claim must be founded on a constitutional right that cannot and never could have been vindicated under the Nebraska Postconviction Act or by any other means.

4. Judgments: Appeal and Error. An expression of the trial court's reasoning is always encouraged and assists appellate review. Yet, a correct result will not be set aside merely because the lower court applied the wrong reasoning in reaching that result.

Appeal from the District Court for Dodge County: Geoffrey C Hall, Judge.

Bilal A. Khaleeq and Daniel S. Reeker, of Khaleeq Law Firm, L.L.C, for appellant.

[286 Neb. 385] Jon Bruning, Attorney General, and James D. Smith for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

McCormack, J.

NATURE OF CASE

Edgar J. Chiroy Osorio appeals from the district court's dismissal of his motion to withdraw a plea of guilty and to vacate a 2002 conviction, for which he has already served his sentence. Chiroy Osorio's claims stem from the failure to advise him of the possible immigration consequences of that plea. Chiroy Osorio is not a U.S. citizen and was deported as a result of the 2002 conviction. He reentered the United States and alleges that he again faces deportation as a result of the 2002 plea.

BACKGROUND

In June 2002, pursuant to a plea agreement, Chiroy Osorio pled no contest to attempted first degree arson. He was sentenced on July 22, 2002, to a term of 20 to 24 months' incarceration, with credit for 101 days served. Chiroy Osorio was discharged from prison on April 11, 2003, and was thereafter removed from the United States.

At the time of the 2002 plea, Neb. Rev. Stat. ยง 29-1819.02 (Reissue 2008) was not yet in effect. That statute requires a special advisement by the court before accepting a plea of guilty or nolo contendere from a noncitizen. Section 29-1819.02 became effective 2 days before Chiroy Osorio's sentencing. According to Chiroy Osorio's affidavit, neither the district court nor defense counsel advised Chiroy ...


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