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State v. Garcia

Supreme Court of Nebraska

December 14, 2018

State of Nebraska, appellee,
v.
Alejandro Garcia, 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. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below.

         3. Statutes: Intent. When interpreting a statute, the starting point and focus of the inquiry is the meaning of the statutory language, understood in context.

         4. Statutes. Statutory language is to be given its plain and ordinary meaning.

         5. Pleas: Proof. To withdraw a plea under Neb. Rev. Stat. § 29-1819.02 (Reissue 2016), all a defendant must show is (1) that the court failed to give all or part of the advisement and (2) that the defendant faces an immigration consequence which was not included in the advisement given.

          Appeal from the District Court for Platte County, Robert R. Steinke, Judge, on appeal thereto from the County Court for Platte County, Frank J. Skorupa, Judge.

          Jamie L. Arango, of Arango Law, L.L.C., for appellant.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

         [301 Neb. 913] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          PAPIK, J.

         Like many other states, Nebraska requires trial judges, prior to accepting a guilty or no contest plea, to advise the defendant on the record that a conviction may have certain immigration consequences. The same statute provides that if the court fails to give the required advisement and the defendant faces the immigration consequences about which he or she was not advised, the defendant has a right to have the judgment vacated, to withdraw the plea, and to enter a plea of not guilty.

         In this case, Alejandro Garcia seeks to withdraw a no contest plea he entered years ago pursuant to that statute. Garcia concedes, however, that prior to accepting his plea, the trial court properly recited the advisement. Even so, Garcia contends that he is entitled to withdraw his plea, because an interpreter translated a word improperly when she recited the court's advisement to Garcia in Spanish. The county court overruled Garcia's motion, and the district court, sitting as an intermediate appellate court, affirmed. Because we conclude that the advisement statute does not authorize the withdrawal of pleas based on inadequate translation, we affirm.

         BACKGROUND

         Garcia's Plea of No Contest.

         On August 23, 2011, the State filed a criminal complaint in the county court for Platte County, charging Garcia with third degree domestic assault, false reporting, and obstructing government operations. During a group arraignment on August 29, the court advised Garcia of various statutory and constitutional rights relating to those charges. In particular, the court stated the following: "If you are not a United States citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of removal from the United States or denial of naturalization [301 Neb. 914] pursuant to the laws of the United States." With the exception of the use of the singular form of the word "consequence," the foregoing is a verbatim recitation of the statutory advisement courts are required to administer prior to the acceptance of a guilty or no contest plea under Neb. Rev. Stat. § 29-1819.02(1) (Reissue 2016).

         An interpreter provided a Spanish translation of the court's advisement to Garcia of his various constitutional and statutory rights, including the advisement required by § 29-1819.02(1). Garcia told the court that he heard and understood those rights. In response to questions from the court, Garcia said that he did not have an attorney, but would like an attorney to represent him. The court stated it would appoint a public defender to represent Garcia.

         On September 12, 2011, Garcia was present for a second group arraignment, this time represented by counsel. The court again advised Garcia regarding his various constitutional and statutory rights, including the advisement required by § 29-1819.02(1). Again, Garcia said that he understood his rights. Pursuant to a plea agreement, Garcia entered a plea of no contest to the third degree domestic violence charge, and the other charges were dismissed. The county court later sentenced Garcia to 60 days' jail time with credit for 58 days already served.

         Initial Motion to Withdraw Plea.

         Over 4 years later, Garcia filed a motion in the county court to withdraw his plea of no contest. Garcia alleged both that he received ineffective assistance of counsel and that he did not receive the immigration advisement required by § 29-1819.02(1) prior to entering his plea. The county court issued an order stating that it gave the immigration advisement to Garcia prior to the entry of his plea and denied the motion.

         Several weeks later, Garcia filed a motion to reconsider. In it, he acknowledged that the county court properly gave the [301 Neb. 915] immigration advisement required by § 29-1819.02(1) prior to the entry of his plea, but alleged that the Spanish interpreter incorrectly translated one of the words in the advisement. Garcia asserted that the Spanish translator used the Spanish word for "expatriate" when she should have used the Spanish word for "removal."

         The county court overruled the motion to reconsider, because Garcia had brought no evidence in support of his motion. Garcia appealed the denial of his motion to reconsider to the district court, but the district court dismissed the appeal as untimely.

         Second Motion ...


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