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State v. Sandoval

Supreme Court of Nebraska

August 8, 2014

STATE OF NEBRASKA, APPELLEE,
v.
JOSE LUIS SANDOVAL, APPELLANT

Page 657

Appeal from the District Court for Dakota County: PAUL J. VAUGHAN, Judge.

Joshua W. Weir, of Dornan, Lustgarten & Troia, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and J. Kirk Brown for appellee.

WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. HEAVICAN, C.J. not participating.

OPINION

Page 658

[288 Neb. 755] Stephan, J.

The issue presented in this appeal is whether the failure of the court to advise a defendant of the immigration consequences of a plea of guilty or nolo contendere prior to acceptance of the plea can serve as the basis for a writ of error coram nobis. We conclude that it cannot and, therefore, affirm the judgment of the district court for Dakota County denying the writ.

BACKGROUND

On October 28, 2003, Jose Luis Sandoval was charged in Dakota County District Court with possession of methamphet-amine. He pled not guilty. In January 2004, Sandoval changed his plea to guilty as part of a plea agreement with the State. The record of the plea hearing reflects that the district court did not advise Sandoval of the immigration consequences of his guilty plea, even though such an advisement is required by Neb. Rev. Stat. § 29-1819.02(1) (Reissue 2008).

After Sandoval had served the sentence for his offense, he filed a " Petition for Writ of Error Coram Nobis" seeking an order " vacating the judgment and allowing [him] to withdraw his previously entered plea of guilty and allow him to enter a plea of not guilty." The petition stated that it was " filed pursuant to the common law writ of error coram nobis which exists in this state pursuant to Neb. Rev. Stat. § 49-101 [Reissue 2010]." It also referenced § 29-1819.02(2), which [288 Neb. 756] permits a defendant to withdraw a guilty plea if he or she is not advised of the immigration consequences required by § 29-1819.02(1) and the defendant faces such immigration consequences. The petition asserted that neither the district court nor defense counsel advised Sandoval of the immigration consequences of his guilty plea and argued he should be allowed to withdraw his guilty plea based on the violation of § 29-1819.02, because he received ineffective assistance of counsel, and because his plea was not entered freely, intelligently, and voluntarily.

The district court denied relief. It concluded that Sandoval's claims were not based upon an error of fact that could be addressed via a petition for writ of error coram nobis. Sandoval timely appealed. We overruled the State's motion for summary affirmance but ordered supplemental briefing.

ASSIGNMENT OF ERROR

Sandoval assigns, restated, that a writ of error coram nobis should be issued, allowing him to withdraw his guilty plea, because the district court failed to advise him of the immigration ...


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