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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. GACH

Cite as 297 Neb. 96

State of Nebraska, appellee, v.

Buoy P. Gach, appell

___ N.W.2d ___

Filed June 30, 2017. No. S-16-156.

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vacated and the plea withdrawn pursuant to § 29-1819.02(2).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 

(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).

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/22/2017 01:11 AM CDT
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Nebraska Supreme Court Advance S

297 Nebraska Report

STATE v. GACH

Cite as 297 Neb. 96

Appeal from the District Court for Douglas County: Pete

C. Bataillon, Judge. Affirme

Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for 

appellant.

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

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel

Kelch, and Funke,

Stacy, 

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 degree2 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.

Ple

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:

1 See Neb. Rev. Stat. § 29-1819.02 (Reissue 2016).

2 See Neb. Rev. Stat. § 28-308 (Reissue 2016).

3 See Neb. Rev. Stat. § 28-1205 (Reissue 2016).
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STATE v. GACH

Cite as 297 Neb. 96

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 understand that?

[Gach]: Yes.

At the conclusion of the plea hearing, the court accepted 

Gach’s plea and found him guilty of assault in the first degree. 

On April 1, Gach was sentenced to imprisonment for a term of 

10 to 20 years.

Motion to Withdraw 

On November 19, 2014, Gach filed a pro se motion to 

vacate his conviction and withdraw his plea pursuant 

to § 29-1819.02(2), claiming he was not given the proper 

immigration advisement during his plea hearing. The court 

appointed counsel for Gach and set the matter for an evidentiary hearing.

At the hearing, the State and Gach stipulated to several facts 

which we summarize here:
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STATE v. GACH

Cite as 297 Neb. 96

• The District Court for Douglas County did not provide Gach 

the verbatim advisement contained in § 29-1819.02(1);

• Gach is not a U.S. citizen and was not a U.S. citizen at the 

time he entered his no contest plea;

• On April 14, 2010, the U.S. Immigration and Customs 

Enforcement Service’s detention and removal section filed 

an “Immigration Detainer — Notice of Action” with the 

Department of Correctional Services (DCS) that required 

DCS to “detain [Gach] to provide adequate time for [the 

Department of Homeland Security] to assume [his] custody” 

in order to “determine whether [he] is subject to removal 

from the United States”;

• DCS identified Gach’s “‘Projected Release Date’” as August 

3, 2019; and

• DCS had the immigration detainer on file and intended to 

hold Gach on behalf of the U.S. Immigration and Customs 

Enforcement Service at the conclusion of his sentence.

During the hearing, all parties agreed that the applicable legal standard was announced by this court in State v. 

Yos-Chiguil.4 In that case, we held that to state a cognizable 

claim for relief under § 29-1819.02(2), 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.

The district court overruled Gach’s motion in an order 

entered January 14, 2016. With respect to the first prong of the

Yos-Chiguil test, the court acknowledged its failure to comply 

with § 29-1819.02, stating:

[T]he Court did not give the exact verbatim advisement 

to [Gach]. In hindsight, it would have been more prudent 

for the Court to have given the verbatim advisement. . 

. . The Court did advise [Gach] that conviction of the 

offense could affect his immigration status and that he 

could be deported. The Court did not advise him that 

4 State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).
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STATE v. GACH

Cite as 297 Neb. 96

this only affects him if he is not a United States citizen, 

and rather than use the word “removal,” the Court used 

the word “deported”.

The court went on to consider whether Gach was facing immigration consequences that were not included in the advisement as given, and it concluded:

In this case, [Gach] has been notified that upon his 

release from [DCS], the United States will take custody 

of him to determine if he should be removed from the 

United States. This is one of the consequences of [his] 

conviction in this matter. The Court . . . advised [him] of 

this consequence when it stated to [him] during the plea 

colloquy that “[his] immigration status with the United 

States could be [affected and he] could be deported . . . .” 

[He] is subject to deportation or removal from the United 

States for which [he] was advised.

The court thus overruled Gach’s motion to withdraw his plea. 

Gach timely appealed, and we moved the case to our docket.5

ASSIGNMENT OF ERROR

Gach assigns the district court erred in overruling his motion 

to withdraw his plea of no contest.

STANDARD OF REVIEW

[1] 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.6

ANALYSIS

Section 29-1819.02(1) requires that before accepting a 

plea of guilty or no contest to any criminal offense, “the 

court shall administer the following advisement on the 

record to the defendant”: “IF YOU ARE NOT A UNITED 

5 See In re Guardianship & Conservatorship of Donley, 262 Neb. 282, 631 

N.W.2d 839 (2001).

6 State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
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STATE v. GACH

Cite as 297 Neb. 96

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.” Section 29-1819.02(2) provides the remedy for failure to give all or part of the immigration advisement. It states in pertinent part:

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 

defendant pleaded guilty or nolo contendere may have 

the consequences for the defendant of removal from the 

United States, or denial of naturalization pursuant to the 

laws of the United States, the court, on the defendant’s 

motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere 

and enter a plea of not guilty. Absent a record that the 

court provided the advisement required by this section, 

the defendant shall be presumed not to have received the 

required advisement.

[2,3] In Yos-Chiguil,

7

 we recognized that “failure to give all 

or part of the advisement required by § 29-1819.02(1) 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).” We held that to state a cognizable claim for relief under § 29-1819.02(2), 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.8

7 State v. Yos-Chiguil, supra note 4, 278 Neb. at 598, 772 N.W.2d at 580.

8 See State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010).
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STATE v. GACH

Cite as 297 Neb. 96

We consider each Yos-Chiguil factor in turn, and we conclude that Gach has established the first factor but has failed to 

meet his burden with respect to the second factor.

First Factor Under Yos-Ch

Regarding the first factor, the record is clear that instead 

of reciting the advisement set out in § 29-1819.02(1), the 

district court improvised an advisement. Because the court’s 

advisement failed to give “all or part of” the advisement 

required under § 29-1819.02(1), the first Yos-Chiguil factor 

is satisfied.9

For the sake of completeness, we note the State asks us to 

find that even when the verbatim statutory advisement is not 

given, substantial compliance with § 29-1819.02(1) may be 

sufficient to satisfy the first prong of the test under Yos-Chiguil. 

Because we resolve this appeal by concluding Gach has not 

satisfied the second prong of Yos-Chiguil, we need not decide 

whether the first prong can ever be satisfied by an advisement 

which does not follow the statutory language.

However, we take this opportunity to remind lawyers and 

judges that there is no excuse for failing to administer the 

statutory advisement to every defendant. Justice Cassel’s 

admonition in his concurrence to State v. Rodriguez10 bears 

repeating:

It takes only a moment. The wording is succinct. The statute specifies the precise language. Judges have no reason 

to improvise or summarize. The “cost” of timely giving 

advisements is miniscule compared to the “benefit” of 

avoiding plea withdrawals years after the resulting judgments having been fully executed. Judges should fully 

and timely comply with the statutory mandate. And the 

practicing bar should ensure that judges do so.

9 See State v. Yos-Chiguil, supra note 4, 278 Neb. at 598, 772 N.W.2d at 

580.

10 State v. Rodriguez, 288 Neb. 714, 727, 850 N.W.2d 788, 797 (2014) 

(Cassel, J., concurring).
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STATE v. GACH

Cite as 297 Neb. 96

To be fair, Gach’s plea hearing occurred several years before 

our opinion in Rodriguez was released. But the present appeal 

illustrates the cost to the parties and the justice system in 

terms of time and resources when the court improvises an 

immigration advisement instead of giving the advisement contained in § 29-1819.02(1).

Second Factor Under Yos-

[4] Under the second factor, Gach must show he is facing an immigration consequence that was not included in the 

advisement actually given. This factor assumes the 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?

Section 29-1819.02(1) requires that defendants be advised 

of two distinct immigration consequences: removal from the 

United States and denial of naturalization pursuant to the laws 

of the United States.11 Both consequences are important, but 

neither party suggests that denial of naturalization is at issue 

in this case. Rather, the parties stipulated that Gach is not a 

U.S. citizen and that an immigration detainer has been filed 

with DCS requiring it to “detain [Gach] to provide adequate 

time for [the Department of Homeland Security] to assume 

[his] custody” in order to “determine whether [he] is subject to 

removal from the United States.”

[5] In State v. Mena-Rivera,

12 we held that when the U.S. 

Department of Homeland Security places an immigration 

detainer on an individual, that person “‘actually faces’” immigration consequences sufficient to claim the protections of 

11 See State v. Rodriguez, supra note 10.

12 State v. Mena-Rivera, supra note 8, 280 Neb. at 955, 791 N.W.2d at 620.
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STATE v. GACH

Cite as 297 Neb. 96

§ 29-1819.02. We conclude Gach has sufficiently shown he 

“actually faces” the immigration consequence of removal 

from the United States. We next consider whether the court’s 

immigration advisement, as given, warned Gach of this 

consequence.

The court advised Gach that his “immigration status with 

the United States” could be affected and that he “could be 

deported” as a consequence of the conviction. In denying the 

motion to withdraw Gach’s plea, the court made a specific 

finding that “[Gach] is subject to deportation or removal from 

the United States for which [he] was advised.” In making this 

finding, the court used the terms “deportation” and “removal” 

interchangeably. We express no opinion on whether there is a 

relevant legal distinction between those terms in the context 

of this case, because that question was not presented to the 

district court and has not been raised on appeal. In fact, at 

oral argument, counsel for both parties suggested the terms are 

basically synonymous.

It is Gach’s burden to show, by clear and convincing 

evidence,13 that he is facing an immigration consequence that 

was not included in the advisement as given by the court. He 

has shown he is facing the consequence of removal, but he has 

failed to prove that the court’s advisement, as given, did not 

advise him of that consequence. Gach has failed to satisfy the 

second prong of the Yos-Chiguil test, and on this record, we 

can find no abuse of discretion in the district court’s decision 

to overrule Gach’s motion to withdraw his plea.14

CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed

13 See State v. Mena-Rivera, supra note 8.

14 See, State v. Ortega, supra note 6; State v. Yos-Chiguil, supra note 4.