Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Jerke

Supreme Court of Nebraska

March 1, 2019

State of Nebraska, appellant and cross-appellee.
v.
Jedo J. Jerke, appellee and cross-appellant.

         1. Constitutional Law: Postconviction: Pleas. The common-law procedure for withdrawing a plea after conviction recognized in State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504');">830 N.W.2d 504 (2013), is available only when (1) the Nebraska Postconviction Act is not, and never was, available as a means of asserting the ground or grounds justifying withdrawing the plea and (2) a constitutional right is at issue.

         2. Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

         3. Postconviction: Pleas. Whether the common-law procedure for withdrawing a plea after conviction recognized in State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013), is available presents a question of law.

         4. Effectiveness of Counsel: Proof: Time. The factual predicate for a claim of ineffectiveness of counsel concerns whether the important objective facts could reasonably have been discovered, not when the claimant should have discovered the legal significance of those facts.

         5. Effectiveness of Counsel: Proof. When considering the factual predicate of a claim of ineffective assistance of counsel based on the failure to advise of deportation consequences, the important objective facts are (1) knowledge of what trial counsel did and did not advise the defendant and (2) the existence of the applicable deportation law.

         6. Postconviction: Pleas: Proof. The unavailability of the Nebraska Postconviction Act is not an affirmative defense; it is a material element that must be pled and proved by a defendant seeking to use the procedure for withdrawing a plea after conviction recognized in State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504');">830 N.W.2d 504 (2013).

          [302 Neb. 373] Appeal from the District Court for Hall County: Teresa K. Luther, Judge.

          Douglas J. Peterson, Attorney General, and James D. Smith, and Martin R. Klein, and Katherine J. Doering, Deputy Hall County Attorneys, for appellant.

          Mark Porto, of Porto Law Office, for appellee.

          Kevin Ruser, of University of Nebraska College of Law Immigration Clinic, and David Shea and Damon Hudson, Senior Certified Law Students, for amicus curiae University of Nebraska College of Law Immigration Clinic.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          STACY, J.

         In 2012, Jedo J. Jerke entered a no contest plea to a charge of second degree assault. He was convicted and sentenced to a term of 4 to 6 years' imprisonment. After completing his sentence, Jerke moved to vacate the sentence and withdraw the plea pursuant to the common-law procedure recognized in State v. Gonzalez, [1] arguing his trial counsel was ineffective for failing to advise him before he entered his plea that second degree assault was a deportable offense. The district court granted Jerke's motion, and the State appeals. Because we conclude the common-law procedure is not available to Jerke as a matter of law, we reverse the district court's order and remand the cause with directions to dismiss.

         FACTS

         Jerke is from South Sudan, Africa, and came to the United States in 2006 as a political refugee. He is not, and never has been, a U.S. citizen.

         [302 Neb. 374] In March 2012, Jerke was charged with two counts of assault in the second degree and one count of criminal impersonation. At the time, the assault charges were Class III felonies carrying a sentence of 1 to 20 years' imprisonment. Jerke informed his appointed counsel of his immigration status when counsel originally visited him in jail. Under federal law, a crime of violence for which a sentence of 1 year or more is imposed is an "aggravated felony" and a deportable offense.[2] Counsel did not advise Jerke of this at any time.

         Jerke originally entered not guilty pleas to each of the charges, and a bench trial began August 6, 2012. After the State called its first witness, who described an intoxicated Jerke striking him in the mouth with a glass tequila bottle and knocking out several of his teeth, Jerke informed the court he wished to accept the State's plea offer and enter a no contest plea to one count of second degree assault. The plea colloquy included an advisement pursuant to Neb. Rev. Stat. § 29-1819.02(1) (Reissue 2016), which provides:

Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant:
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 CONSEQUENCES OF REMOVAL FROM THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES.

         The court accepted Jerke's no contest plea, and subsequently sentenced him to imprisonment for a term of 4 to 6 years.

         While Jerke was serving his sentence, he learned he did not qualify for community work release, because he had an [302 Neb. 375] "immigration hold." Jerke did not investigate the nature of the immigration hold during the term of his incarceration or upon his release from prison in 2015.

         In November 2017, Jerke learned from immigration authorities that he would be deported based on his assault conviction. He then moved to vacate his conviction and withdraw his plea pursuant to this court's holding in Gonzalez[3] That case recognized a common-law procedure under which a defendant may, in very limited circumstances, move to vacate a conviction and withdraw a plea after the conviction has become final. According to Gonzalez:

This procedure is available only when (1) the [Nebraska Postconviction] Act[4] is not, and never was, available as a means of asserting the ground or grounds justifying withdrawing the plea and (2) a constitutional right is at issue. In sum, this common-law procedure exists to safeguard a defendant's rights in the very rare circumstance where due process principles require a forum for the vindication of a constitutional right and no other forum is provided by Nebraska law.[5]

         In his motion, Jerke alleged his Sixth Amendment right to counsel was violated when his trial counsel failed to advise him of the deportation consequences of his plea-based conviction. Jerke alleged this constituted ineffective assistance of counsel pursuant to the U.S. Supreme Court's opinion in Padilla v. Kentucky[6]

         After conducting an evidentiary hearing, the district court granted Jerke's motion. In opposing the motion, the State had argued that Jerke could have raised his claims under the Nebraska Postconviction Act during the period of his [302 Neb. 376] incarceration, and thus could not bring a common-law claim under Gonzalez. But the court found the State had waived this argument by not filing a motion to dismiss.

         The court entered an order that vacated the judgment of conviction and sentence, allowed Jerke to withdraw his plea, and set the matter for further hearing. The State filed this appeal, and Jerke cross-appealed. We granted Jerke's motion to bypass the Nebraska Court of Appeals.

         ASSIGNMENTS OF ERROR

         The State assigns, restated, that the district court erred in (1) granting Jerke's common-law motion, because Jerke had a remedy under the Nebraska Postconviction Act, and (2) finding trial counsel rendered ineffective assistance.

         On cross-appeal, Jerke asks this court to overrule State v. Mamer[7] and hold instead that the factual predicate of an ineffective assistance of counsel claim based on Padilla does not arise until a reasonable defendant learns the actual immigration consequences of his or her plea-based conviction.

         STANDARD OF REVIEW

         When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.[8]

         ANALYSIS

         Whether the common-law procedure recognized in Gonzalez is available to Jerke presents a question of law. We begin our analysis with an overview of the Gonzalez holding.

         State ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.