Appeal fro the District Court for Douglas County: DUANE C DOUGHERTY, Judge.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED.
Bilal A. Khaleeq and Daniel S. Reeker, of Khaleeq Law Firm, L.L.C, for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ., CONNOLLY, J., dissenting. HEAVICAN, C.J., joins in this dissent.
NATURE OF CASE
The issues presented in this appeal surround the failures of defense counsel and the court to advise a defendant of the immigration consequences of a plea of guilty or nolo contendere prior to the acceptance of the plea.
Julio Chojolan appeals the October 24, 2012, order of the district court for Douglas County in which the court dismissed his motion to withdraw his guilty plea in a 2006 conviction for attempted possession of a controlled substance. With respect to defense counsel's failure to advise, the district court concluded that the principles recognized in Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), did not apply retroactively to Chojolan. This ruling was not error with respect to the court's failure to advise. The district court reasoned that it lacked jurisdiction to consider the motion under the immigration advisement statute, Neb. Rev. Stat. § 29-1819.02(2) [288 Neb. 761] (Reissue 2008), because Chojolan had already completed his sentence. We conclude that the motion is authorized under § 29-1819.02(2) even though Chojolan had completed his sentence. We therefore affirm the district court's ruling regarding defense counsel's advisements, but we reverse the district court's dismissal of Chojolan's motion brought under § 29-1819.02(2) and remand the cause for further proceedings.
STATEMENT OF FACTS
In November 2006, Chojolan pled guilty to attempted possession of a controlled substance, a Class I misdemeanor. He was sentenced to imprisonment for 30 days and was given credit for time served of 30 days. The record of the plea hearing shows that Chojolan was not informed by the court of any potential immigration consequences stemming from his plea and conviction.
On August 7, 2012, Chojolan filed a " Motion to Withdraw Plea of Guilty and Vacate Conviction," in which he sought to withdraw his 2006 plea. He alleged that neither his counsel nor the court had advised him of the immigration consequences of his plea prior to entry of the plea. He also alleged that he was subject to removal proceedings and denial of naturalization under federal immigration law. Chojolan asserted that the court had jurisdiction based on common-law remedies that allow withdrawal of a plea and vacation of a conviction when trial counsel has failed to advise a defendant of immigration consequences. Chojolan also asserted that the district court had jurisdiction to hear his motion " based on Neb. Rev. Stat. [§ ] 29-1819.02 and the fact that the Court did not advise him of the immigration consequences of his plea prior to accepting his plea." Section 29-1819.02(2) provides:
Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. 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 [288 Neb. 762] defendant pleaded guilty or nolo contendere may have the consequences for the defendant of removal from the United States, or denial of naturalization ...