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State v. Gach

Supreme Court of Nebraska

June 30, 2017

State of Nebraska, Appellee,
v.
Buoy P. Gach, Appellant.

         1. 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.

         2. 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contendere plea is not alone sufficient to entitle a convicted defendant to have the conviction vacated and the plea withdrawn pursuant to § 29-1819.02(2).

         3. 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.

         4. 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 given?

         5. 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).

         [297 Neb. 97] Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge. Affirmed.

          Peder Bartling, of Bartling Law Offices, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          STACY, J.

         Buoy P. 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.[1] The district court denied the motion, and Gach appeals. Finding no abuse of discretion, we affirm.

         FACTS

         On August 5, 2009, Gach was charged with two counts of assault in the first degree[2] and with two counts of use of a deadly weapon to commit a felony.[3] 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 A 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 factual basis.
[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?
[Gach]: Yes.
THE COURT: In other words, you could be deported .... Do you ...

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