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.
Pleas: Convictions. Failure to give all or part of the
advisement required by Neb. Rev. Stat. § 29-1819.02(1)
(Reissue 2016) regarding the immigration consequences of a
guilty or nolo contendere plea is not alone sufficient to
entitle a convicted defendant to have the conviction vacated
and the plea withdrawn pursuant to § 29-1819.02(2).
Pleas: Convictions: Claims: Proof. To state a cognizable
claim for relief under Neb. Rev. Stat. § 29-1819.02(2)
(Reissue 2016), the defendant must allege and show that (1)
the trial court failed to give all or part of the advisement
contained in § 29-1819.02(1) and (2) the defendant faces
an immigration consequence that was not included in the
advisement given. It is the defendant's burden to
establish these factors by clear and convincing evidence.
Pleas: Convictions: Notice: Proof. The second factor of the
test announced in State v. Yos-Chiguil, 278 Neb.
591, 772 N.W.2d 574');">772 N.W.2d 574 (2009), assumes the court's
advisement, as given, was incomplete or noncompliant and
requires a defendant to show he or she faces an immigration
consequence that was not included in the advisement actually
given. When considering the second factor, two questions must
be answered: What immigration consequences is the defendant
actually facing, and What immigration consequences were
actually communicated to the defendant in the advisement as
Pleas: Convictions: Extradition and Detainer. When the
Department of Homeland Security places an immigration
detainer on an individual, that person actually faces
immigration consequences sufficient to claim the protections
of Neb. Rev. Stat. § 29-1819.02 (Reissue 2016).
Neb. 97] Appeal from the District Court for Douglas County:
Peter C. Bataillon, Judge. Affirmed.
Bartling, of Bartling Law Offices, PC, L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
Gach moved to vacate his conviction and withdraw his plea,
claiming the District Court for Douglas County failed to
properly advise him of the immigration consequences of
conviction before accepting his plea of no
contest. The district court denied the motion, and
Gach appeals. Finding no abuse of discretion, we affirm.
August 5, 2009, Gach was charged with two counts of assault
in the first degree and with two counts of use of a deadly
weapon to commit a felony. The charges stemmed from events that
occurred on July 3, when Gach and another individual fired a
gun into a group of people standing on a porch and two people
were seriously injured.
plea agreement was reached, and on January 11, 2010, Gach
entered a plea of no contest to one count of assault in the
first degree. The remaining charges were dismissed. The
record from the change-of-plea hearing reflects the following
colloquy between the court, the State, and Gach:
[297 Neb. 98] THE COURT: Now, [Gach], before I can accept
your plea of no contest I have to be certain that there are
facts that support your plea of no contest.
[Deputy county attorney], if you could please set forth the
[Deputy county attorney]: Your Honor, before I give the
factual basis I just remind the Court that perhaps before
[Gach] entered the plea you could do the immigration
advisory, of any potential impact on that. Would you like me
to do that or would you like to do the -
THE COURT: Let me do that right now, sir. In addition to the
penalty of 1 to 50 years' imprisonment, 50 being the max,
one year being the minimum, your immigration status with the
United States could be affected. Do you understand that, sir?
[Gach]: (No response.)
THE COURT: In other words - do you understand that?
THE COURT: In other words, you could be deported .... Do you