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State of Nebraska, appellee, v. Al

Ramirez Gonzalez, appella

___ N.W.2d ___

Filed May 24, 2013. No. S-10-1097.

1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional 

questions that do not involve a factual dispute as a matter of law.

Appeal from the District Court for Hall County: James

D. Livingston, Judge. On motion for rehearing, reargu

granted. See 283 Neb. 1, 807 N.W.2d 759 (2012), for original 

opinion. Original opinion withdrawn. Appeal dismissed.

Joshua W. Weir, of Dornan, Lustgarten & Troia, P.C., L.L.O., 

for appellant.

Jon Bruning, Attorney General, and James D. Smith for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan, 

and Miller-Lerman, 

Per Curia

INTRODUCTION

In 2008, Alma Ramirez Gonzalez pled no contest to a charge 

of fraudulently obtaining public assistance benefits. Before 

accepting her plea, the district court advised her of the possible immigration consequences of her conviction.1

 Gonzalez 

was later sentenced to 5 years’ probation. On July 14, 2010, 

she filed a motion to withdraw her plea, alleging she received 

ineffective assistance of counsel because her counsel had not 

told her that her conviction would result in automatic deportation. We conclude that Gonzalez’ sole remedy was to file for 

postconviction relief pursuant to the Nebraska Postconviction 

Act2 and that because she did not do so, both the district court 

and this court lack jurisdiction over her motion. We therefore 

dismiss Gonzalez’ appeal.

1 See Neb. Rev. Stat. § 29-1819.02 (Reissue 2008).

2 Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2008 & Cum. Supp. 

2012).
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BACKGROUND

In December 2006, Gonzalez was detained by the federal 

government for living in the United States illegally. Deportation 

proceedings were commenced. The deportation proceedings 

were ongoing as of August 31, 2010.

In 2007, Gonzalez was arrested for fraudulently obtaining 

public assistance benefits in an amount greater than $500, a 

Class IV felony punishable by up to 5 years’ imprisonment, a 

$10,000 fine, or both.3 She was charged with this offense by an 

information filed on January 2, 2008.

On March 20, 2008, pursuant to a plea agreement, Gonzalez 

withdrew her initial plea of not guilty and pled no contest 

to the charge. In return for her no contest plea, the State 

agreed to recommend a term of probation. Before accepting 

Gonzalez’ plea, the district court advised her that conviction 

of the offense could result in her deportation or a denial of her 

naturalization request. Gonzalez indicated that she understood 

these possible consequences. The court found Gonzalez guilty 

and subsequently sentenced her to a term of 5 years’ probation. 

As a result of the conviction, Gonzalez became ineligible to 

remain in the United States.

On July 14, 2010, Gonzalez filed a “Motion to Withdraw 

Plea and Vacate Judgment” in the district court on the ground 

that she had received ineffective assistance of counsel. The 

motion was based on the U.S. Supreme Court’s decision in 

Padilla v. Kentucky,

4

 which was issued on March 31, 2010. 

Padilla held that defense counsel had a duty to advise clients 

of the risk of deportation arising from a guilty plea.

The district court held an evidentiary hearing on Gonzalez’ 

motion. Gonzalez testified that she had not discussed the 

immigration consequences of her plea and conviction with 

her criminal trial counsel prior to the time she entered her 

plea. She testified that her trial counsel knew at the time she 

3 See Neb. Rev. Stat. §§ 28-105(1) (Reissue 2008) and 68-1017(2) (Reissue 

2003).

4 Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 

(2010).
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entered her plea that Gonzalez was not a U.S. citizen, but that 

he did not know of her ongoing immigration proceedings. 

Gonzalez testified that if she had known of the immigration 

consequences of her conviction, she “would have looked for 

another solution” and not entered a plea. But Gonzalez also 

admitted that while the immigration consequences of a conviction were very important to her, she never asked her trial 

counsel whether there could be such consequences. Gonzalez 

testified that the immigration rights advisement given to her 

by the district court was done “very rapidly through the interpreter” and that she “didn’t understand much.” Gonzalez testified that she did not learn of the immigration consequences of 

her conviction until she consulted with her immigration attorney approximately 5 months before the hearing on her motion 

to withdraw.

The district court denied Gonzalez’ motion to withdraw 

her plea. The court generally agreed that trial counsel performed deficiently in not advising Gonzalez that she would 

be deported as a result of her plea and conviction. But it 

concluded that Gonzalez was not entitled to relief, because 

she had failed to demonstrate that her counsel’s deficient 

performance prejudiced her.5 In other words, Gonzalez had 

not demonstrated a reasonable probability that she would not 

have entered the plea had counsel properly informed her of 

the immigration consequences of her plea and conviction. 

Gonzalez appealed.

After hearing oral arguments, this court issued an opinion 

on January 13, 2012.6 In it, we concluded that Gonzalez’ 

motion to withdraw her plea was procedurally proper based on 

common-law principles and that this court thus had jurisdiction over Gonzalez’ appeal. We also assumed that the holding 

in Padilla would apply retroactively to Gonzalez. However, 

we concluded that Gonzalez failed to show that she would 

suffer a manifest injustice if she was unable to withdraw her 

5 See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 

674 (1984).

6 See State v. Gonzalez, 283 Neb. 1, 807 N.W.2d 759 (2012).
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plea, and accordingly, we affirmed the decision of the district court.

After our opinion was released, the State filed a motion 

for rehearing. The motion questioned our conclusion that 

Gonzalez’ motion was procedurally proper—specifically, our 

conclusion that there is a common-law procedure under which 

a defendant whose conviction has become final may bring 

a motion to withdraw a plea. We granted the State’s motion 

for rehearing.

After the motion for rehearing was granted and while the 

appeal was again pending before this court, the U.S. Supreme 

Court decided Chaidez v. U.S.

7 Chaidez held that the holding in 

Padilla requiring defense counsel to advise clients of the risk 

of deportation arising from a guilty plea did not apply retroactively to a defendant whose conviction became final before 

Padilla was decided. Based on Chaidez, it is now clear that 

Gonzalez’ ineffective assistance of counsel claim is entirely 

without merit.8

But we granted rehearing in this case not to determine the 

merits of her claim, but instead to determine whether it was 

procedurally proper. We now withdraw the opinion issued 

on January 13, 2012, and substitute this opinion. We conclude that although a very limited common-law procedure 

exists, it was unavailable to Gonzalez because she could have 

raised an ineffective assistance of counsel claim under the 

Nebraska Postconviction Act (hereinafter the Act).9 We therefore conclude that the district court lacked jurisdiction to hear 

Gonzalez’ motion and that we similarly lack jurisdiction over 

this appeal.

ASSIGNMENT OF ERROR

Gonzalez assigns, consolidated and restated, that the district 

court erred in denying her motion to withdraw her plea because 

she was denied the effective assistance of counsel.

7 Chaidez v. U.S., ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013).

8 See State v. Zarate, 264 Neb. 690, 651 N.W.2d 215 (2002).

9 §§ 29-3001 to 29-3004.
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STANDARD OF REVIEW

[1] An appellate court determines jurisdictional questions 

that do not involve a factual dispute as a matter of law.10

ANALYSIS

The issue presented by this appeal is whether a court has 

jurisdiction to consider a motion to withdraw a plea based 

on an allegation of ineffective assistance of counsel when the 

motion is filed after the underlying conviction is final. In such 

a case, the motion is a collateral attack upon the conviction.

There are two statutory avenues available to a defendant 

seeking to withdraw a plea after his or her conviction has 

become final. One is a purely statutory remedy, and the other 

is a statutory means of vindicating a constitutional right. In 

addition, as will be explained in more detail below, a limited 

common-law right to withdraw a plea also exists.

The first avenue is § 29-1819.02,11 which requires district courts to advise defendants of the possible immigration 

consequences of a no contest or guilty plea and the resulting conviction before the district court can accept the plea. 

If the advisement prescribed by § 29-1819.02 is not given 

and an immigration consequence results from the conviction, 

§ 29-1819.02 allows a convicted person to move to withdraw 

the plea and set aside the conviction. We have held that the 

motion to withdraw may be filed even if the conviction has 

become final so long as the defendant is still serving his or her 

sentence.12 We have not yet addressed whether the motion may 

be filed after the sentence is served.13 Here, the rights advisory 

required by § 29-1819.02 was read to Gonzalez, and thus, she 

does not and cannot move to withdraw her plea pursuant to 

§ 29-1819.02.

The second statutory avenue available to a defendant seeking to withdraw a plea after his or her conviction has become 

10 Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379, 810 

N.W.2d 149 (2012).

11 See State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).

12 Id.

13 See id.
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final is the Act. The Act is enacted to protect constitutional 

rights. Specifically, § 29-3001 currently provides:

(1) A prisoner in custody under sentence and claiming a right to be released on the ground that there 

was such a denial or infringement of the rights of the 

prisoner as to render the judgment void or voidable 

under the Constitution of this state or the Constitution 

of the United States, may file a verified motion, in the 

court which imposed such sentence, stating the grounds 

relied upon and asking the court to vacate or set aside 

the sentence.

Such motion must be filed within 1 year of the triggering 

event.14 Gonzalez’ ineffective assistance of counsel claim is 

rooted in her rights under the 6th and 14th Amendments to 

the U.S. Constitution and article I, § 11, of the Nebraska 

Constitution and thus falls within the purview of § 29-3001. 

And Gonzalez filed her motion within 1 year of the U.S. 

Supreme Court’s decision in Padilla,

15 which, as noted, was the 

alleged basis for her claim that her trial counsel provided constitutionally ineffective assistance by failing to advise her that 

she would be deported if she entered a plea and was convicted. 

But Gonzalez’ motion to withdraw her plea was not verified as 

is required by § 29-3001. Nor does the motion itself suggest 

that it was brought under the Act.

Indeed, Gonzalez does not argue that her motion was brought 

pursuant to the Act. Instead, she contends that the Act was not 

available to her because she was not “‘in custody’” within the 

meaning of that Act.16 And this court has held that a prisoner 

is “in custody” for purposes of the Act when on paro1e17 or 

when sentenced to a term of court-ordered probation,18 as well 

as when serving a term of incarceration. As such, Gonzalez 

was “in custody” under § 29-3001 during her 5-year term of 

14 § 29-3001(4).

15 Padilla, supra note 4.

16 Supplemental brief for appellant at 13.

17 State v. Thomas, 236 Neb. 553, 462 N.W.2d 862 (1990).

18 Zarate, supra note 8; State v. Styskal, 242 Neb. 26, 493 N.W.2d 313 

(1992).
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probation. Gonzalez even acknowledges in her briefs that she 

was still serving her sentence at the time she filed her motion 

to withdraw her plea.

But Gonzalez argues that she was in federal custody at the 

time she filed her motion to withdraw her plea and that thus, 

the Act was unavailable to her.19 Assuming without deciding 

that a postconviction action cannot be brought during the time 

a defendant otherwise serving a Nebraska sentence is in federal 

custody, Gonzalez has neither pled nor proved that she was in 

federal custody for the entire 1-year period following the U.S. 

Supreme Court’s decision in Padilla.

20

We therefore conclude that on the record before us, Gonzalez 

has not shown that she could not have raised her ineffective 

assistance of counsel claim and sought to withdraw her plea 

under the Act. As such, we presume that the Act was available to her. As we noted above, Gonzalez did not file such 

an action.

The remaining question is whether a common-law procedure also authorized Gonzalez’ motion to withdraw her plea 

after her conviction had become final. The State argues quite 

strenuously that there is no common-law procedure authorizing 

withdrawal of a plea after a conviction has become final and 

that our initial opinion incorrectly recognized one. In our initial 

opinion, we cited to nine cases holding that when a motion to 

withdraw a plea is filed after sentencing, withdrawal is proper 

only when the motion is timely and the defendant establishes 

by clear and convincing evidence that withdrawal is necessary 

to correct a manifest injustice.21 Every one of the cited cases 

involved a motion to withdraw a plea that was filed after sentencing but before the judgment became final for purposes of 

collateral attack. We agree with the State that these cases do 

not support a finding that there is a common-law procedure 

whereby a defendant may move to withdraw a plea after the 

conviction has become final.

19 See, generally, State v. Whitmore, 234 Neb. 557, 452 N.W.2d 31 (1990).

20 See § 29-3001(4).

21 Gonzalez, supra note 6 (citing cases).
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But we did not cite those cases for just that proposition. 

Indeed, in the very next sentence, we stated, “That [manifest 

injustice] standard applies even where a motion to withdraw 

a plea has been made after the sentencing court’s judgment 

has become final.”22 We cited two cases for this proposition—

State v. Holtan23 and State v. Kluge.

24 Upon further examination, we agree that Holtan does not support this proposition 

as strongly as our original opinion might have implied, as the 

motion to withdraw in that case was made in the context of a 

remand on federal habeas review. But Kluge does support our 

stated proposition.

In Kluge, the motion to withdraw the guilty plea was filed 

after the defendant pled guilty, was sentenced to a term of 

incarceration, and unsuccessfully filed a direct appeal. The 

motion was therefore a collateral attack on his conviction. And 

even though a concurring opinion challenged the procedural 

validity of the motion,25 we addressed it on the merits. In 

doing so, we cited to the American Bar Association Standards 

Relating to Pleas of Guilty. We noted that standard 14-2.1(b) 

allowed a defendant to withdraw a guilty plea “‘whenever’” 

he or she, “‘upon a timely motion for withdrawal, proves that 

withdrawal is necessary to correct a manifest injustice.’”26 We 

further noted that a manifest injustice occurs, among other 

things, “whenever the defendant proves that he was denied the 

effective assistance of counsel.”27

In addition, we have more recently alluded to a commonlaw procedure authorizing the withdrawal of a plea after a 

conviction has become final.28 In State v. Yos-Chiguil,

29 the 

22 Id. at 7, 807 N.W.2d at 765.

23 State v. Holtan, 216 Neb. 594, 344 N.W.2d 661 (1984).

24 State v. Kluge, 198 Neb. 115, 251 N.W.2d 737 (1977), disapproved on 

other grounds, State v. Minshall, 227 Neb. 210, 416 N.W.2d 585 (1987).

25 Kluge, supra note 24 (Clinton, J., concurring).

26 Id. at 118, 251 N.W.2d at 739.

27 Id. at 119, 251 N.W.2d at 739.

28 Yos-Chiguil, supra note 11.

29 Id.
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defendant pled guilty. Prior to accepting the guilty plea, 

the district court advised him of the immigration consequences of conviction, but did not follow the exact language 

of § 29-1819.02. The defendant was subsequently sentenced 

and then filed an unsuccessful direct appeal.

After the appeal mandate issued, the defendant filed a 

motion to withdraw his plea on the ground that the immigration advisement given by the district court was inadequate. 

The State argued that the district court lacked jurisdiction to 

decide the issue because we had held in State v. RodriguezTorres30 that § 29-1819.02 did not create a procedure for 

setting aside a plea after a conviction based upon such plea 

has become final. We noted in Yos-Chiguil that the State’s 

argument “both overstate[d] our holding in Rodriguez-Torres

and overlook[ed] a critical difference between it” and YosChiguil.

31 We explained that the issue in Rodriguez-Torres

was whether the language of § 29-1819.02 created a statutory procedure, not whether any procedure at all existed. We 

expressly stated that “[b]ecause the issue was not presented 

to us [in Rodriguez-Torres,] we did not address whether a 

common-law remedy existed for withdrawal of the plea in 

that circumstance.”32

The issue is now presented to us, and we conclude that 

Kluge and Yos-Chiguil recognize a common-law procedure 

for withdrawing a plea after a conviction has become final. 

Because neither of those cases explains the scope and parameters of that procedure, we do so now.

The procedure is civil, not criminal.33 And it is available 

in extremely limited circumstances. The Legislature played a 

role in limiting those circumstances by providing that the Act 

“is not intended to be concurrent with any other remedy existing in the courts of the state. Any proceeding filed under the 

30 State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008).

31 Yos-Chiguil, supra note 11, 278 Neb. at 595, 772 N.W.2d at 578.

32 Id.

33 See, State v. Pratt, 273 Neb. 817, 733 N.W.2d 868 (2007); State v. Smith, 

269 Neb. 773, 696 N.W.2d 871 (2005); State v. Lotter, 266 Neb. 245, 664 

N.W.2d 892 (2003).
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provisions of sections 29-3001 to 29-3004 which states facts 

which if true would constitute grounds for relief under another 

remedy shall be dismissed with prejudice.”34 We construe this 

to be the Legislature’s statement of intent that the Act is the 

primary procedure for bringing collateral attacks based upon 

constitutional principles. In fact, this has been the way we have 

interpreted the Act for the last 48 years. Thus, if a defendant 

has a collateral attack that could be asserted under the Act, that 

Act is his or her sole remedy. Only if a defendant does not 

and never could have asserted the basis of his or her collateral 

attack under the Act may he or she invoke the common-law 

procedure and move to withdraw a plea after the conviction 

has become final.

Moreover, the common-law procedure is available only 

when the collateral attack is based upon a constitutional principle. On at least two occasions, this court has refused to create or recognize a nonstatutory procedure whereby defendants 

can raise claims related to criminal cases.35 But in doing so, 

we noted that the procedures at issue were not “constitutionally mandated.”36 The situation before us is different. The right 

Gonzalez and similarly situated defendants seek to vindicate is 

a right to the effective assistance of counsel, which is a right 

granted by the Sixth Amendment to the U.S. Constitution. 

When such a right is at issue and there is no other means 

of vindicating it, we refuse to deny a defendant due process 

of law.37

We therefore hold that there is a Nebraska common-law 

procedure under which a defendant may move to withdraw a 

plea after his or her conviction has become final. This procedure is available only when (1) the Act is not, and never 

was, available as a means of asserting the ground or grounds 

34 § 29-3003.

35 See, State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000); State v. 

Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999). 

36 Louthan, supra note 35, 257 Neb. at 186, 595 N.W.2d at 925. See 

El-Tabech, supra note 35.

37 See, El-Tabech, supra note 35; Louthan, supra note 35. See, also, Case v. 

Nebraska, 381 U.S. 336, 85 S. Ct. 1486, 14 L. Ed. 2d 422 (1965).
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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.38

In this case, Gonzalez was “in custody” within the meaning of the Act during her 5-year term of probation. Padilla

was decided during this time period, and it was that decision upon which Gonzalez’ ineffective assistance of counsel 

claim depended. There is no showing in the record that the 

Act was unavailable to Gonzalez during the 1-year period 

following Padilla. We therefore conclude that Gonzalez’ sole 

remedy was to move to withdraw her plea pursuant to the Act. 

Because she had an opportunity to do so under that Act, the 

common-law procedure for withdrawing her plea was unavailable to her. We find that the district court lacked jurisdiction 

to consider the motion and that we lack jurisdiction over 

Gonzalez’ appeal.

CONCLUSION

For the reasons discussed herein, we withdraw our prior 

opinion in Gonzales39 and substitute this opinion in which 

we conclude that the district court lacked jurisdiction over 

Gonzalez’ motion. We similarly lack jurisdiction over her 

appeal, and as such, the appeal is dismissed.

Appeal dismissed

Cassel, J., not participating

38 Id.

39 Gonzalez, supra note 6.