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that can arise from the use of demonstrative exhibits in jury 

deliberations, this discretion is not unlimited. Due to the lack 

of limiting instructions and the complete absence of safeguards 

employed in the instant case, the district court abused its discretion in allowing the jury to use the State’s “road map” of 

its case—admitted for demonstrative purposes only—during 

deliberations without giving a limiting instruction. We find this 

error to be prejudicial. Therefore, we reverse the judgment and 

remand the cause for a new trial.

Reversed and remanded for a new tr

Connolly and Miller-Lerman, JJ., participating on b

State of Nebraska, appellee, v. Edgar J

Chiroy Osorio, appella

___ N.W.2d ___

Filed August 2, 2013. No. S-12-580.

1. Appeal and Error. To the extent issues of law are presented, an appellate court 

has an obligation to reach independent conclusions irrespective of the determinations made by the court below.

2. Constitutional Law: Postconviction. A defendant seeking relief under the postconviction statutes must (1) file a verified motion in the court which imposed 

the prior sentence, stating the grounds relied upon and asking for relief; (2) be in 

custody under sentence; and (3) allege a denial or infringement of the defendant’s 

constitutional rights.

3. ____: ____. A “manifest injustice” common-law claim must be founded on a 

constitutional right that cannot and never could have been vindicated under the 

Nebraska Postconviction Act or by any other means.

4. Judgments: Appeal and Error. An expression of the trial court’s reasoning is 

always encouraged and assists appellate review. Yet, a correct result will not be 

set aside merely because the lower court applied the wrong reasoning in reaching 

that result.

Appeal from the District Court for Dodge County: Geoffre

C. Hall, Judge. Affirme

Bilal A. Khaleeq and Daniel S. Reeker, of Khaleeq Law 

Firm, L.L.C., for appellant.
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STATE v. CHIROY OSORIO 385

Cite as 286 Neb. 384

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

appellee.

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

Miller-Lerman, and Cassel,

McCormack, 

NATURE OF CASE

Edgar J. Chiroy Osorio appeals from the district court’s 

dismissal of his motion to withdraw a plea of guilty and to 

vacate a 2002 conviction, for which he has already served 

his sentence. Chiroy Osorio’s claims stem from the failure to 

advise him of the possible immigration consequences of that 

plea. Chiroy Osorio is not a U.S. citizen and was deported as 

a result of the 2002 conviction. He reentered the United States 

and alleges that he again faces deportation as a result of the 

2002 plea.

BACKGROUND

In June 2002, pursuant to a plea agreement, Chiroy Osorio 

pled no contest to attempted first degree arson. He was sentenced on July 22, 2002, to a term of 20 to 24 months’ incarceration, with credit for 101 days served. Chiroy Osorio was 

discharged from prison on April 11, 2003, and was thereafter 

removed from the United States.

At the time of the 2002 plea, Neb. Rev. Stat. § 29-1819.02 

(Reissue 2008) was not yet in effect. That statute requires a special advisement by the court before accepting a plea of guilty 

or nolo contendere from a noncitizen. Section 29-1819.02 

became effective 2 days before Chiroy Osorio’s sentencing. 

According to Chiroy Osorio’s affidavit, neither the district 

court nor defense counsel advised Chiroy Osorio of the possible immigration consequences of his plea at any time before 

the conviction became final.

Approximately 10 years after his plea, on April 16, 2012, 

Chiroy Osorio filed a motion to withdraw his plea of no contest and vacate the 2002 conviction. Chiroy Osorio alleged that 

the district court had authority to grant such a motion under 
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386 286 NEBRASKA REPORTS

either § 29-1819.02, the Nebraska Postconviction Act,1 or the 

common-law right recognized in State v. Gonzalez.

2

 Chiroy 

Osorio alleged that his plea and conviction were obtained in 

violation of his due process rights and that trial counsel was 

ineffective because he was not advised of the immigration consequences of his guilty plea. Chiroy Osorio alleged that had he 

been properly advised, he would not have made such a plea. 

Chiroy Osorio alleged that as a result of the ineffectiveness 

of his 2002 trial counsel, Chiroy Osorio is currently subject 

to removal proceedings and denial of naturalization under the 

Immigration and Nationality Act.3

At a hearing on the motion, Chiroy Osorio’s counsel 

explained that Chiroy Osorio had reentered the United States 

and was currently facing federal charges. It was only when 

Chiroy Osorio retained his current counsel that he discovered 

any potential claim related to the 2002 plea. The only evidence 

offered by Chiroy Osorio was his own affidavit. He averred 

that his attorney did not advise him his plea would have immigration consequences and that he would never have pled guilty 

had he known how his plea would affect his immigration status. The court also took judicial notice of its prior proceedings, 

in which it had failed to advise Chiroy Osorio of the immigration consequences of his plea.

The State moved to dismiss the motion to withdraw the 

plea. The State argued that there was no cause of action under 

§ 29-1819.02, because the plea was entered before July 20, 

2002; that Chiroy Osorio had waived any due process claims 

by entering the plea; that Chiroy Osorio was not entitled to 

postconviction relief because he was no longer in custody; 

and that Chiroy Osorio’s affidavit was insufficient evidence 

of ineffective assistance of counsel to overcome a motion 

to dismiss.

1 Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2012).

2 State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013) (original opinion 

found at 283 Neb. 1, 807 N.W.2d 759 (2012), withdrawn on motion for 

rehearing).

3 See 8 U.S.C. § 1101 et seq. (2006 & Supp. V 2011).
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STATE v. CHIROY OSORIO 387

Cite as 286 Neb. 384

The court took the matter under advisement. Subsequently, 

in a written order in which it did not expressly state its reasoning, the district court denied Chiroy Osorio’s motion to 

withdraw the plea and vacate the conviction. Chiroy Osorio 

appeals.

ASSIGNMENTS OF ERROR

Chiroy Osorio assigns that the district court erred (1) when 

it denied his motion to withdraw his plea and vacate his conviction because his due process rights were violated when he 

was not advised of the immigration consequences of his plea, 

(2) when it determined that he could not withdraw his plea 

even though the court did not read the statutory advisement of 

§ 29-1819.02 before sentencing him, and (3) when it failed to 

explain with any detail why it denied his motion as it places 

an unnecessarily unreasonable burden on Chiroy Osorio during 

his appeals process.

STANDARD OF REVIEW

[1] To the extent issues of law are presented, an appellate 

court has an obligation to reach independent conclusions irrespective of the determinations made by the court below.4

ANALYSIS

Chiroy Osorio attempted to collaterally attack his plea under 

(1) the postconviction statute, (2) § 29-1819.02, and (3) the 

common-law “manifest injustice” procedure recognized in 

Gonzalez.

5

 The district court correctly determined that none of 

these avenues provide a basis for relief in this case.

[2] A defendant seeking relief under the postconviction statutes must (1) file a verified motion in the court which imposed 

the prior sentence, stating the grounds relied upon and asking 

for relief; (2) be in custody under sentence; and (3) allege a 

denial or infringement of the defendant’s constitutional rights.6

4 Hartman v. Hartman, 261 Neb. 359, 622 N.W.2d 871 (2001).

5 State v. Gonzalez, supra note 2, 285 Neb. at 947, 830 N.W.2d at 509.

6 See § 29-3001. See, also, State v. Miller, 6 Neb. App. 363, 574 N.W.2d 

519 (1998).
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388 286 NEBRASKA REPORTS

Chiroy Osorio failed to allege in his postconviction motion that 

he was in custody. And at the hearing on his motion, Chiroy 

Osorio presented no evidence that he was in custody. Because 

he failed to demonstrate he was in custody, the lower court 

could not grant postconviction relief.7

Chiroy Osorio has no claim under § 29-1819.02, because his 

plea was accepted before July 20, 2002. Section 29-1819.02(3) 

states in part:

With respect to pleas accepted prior to July 20, 2002, it 

is not the intent of the Legislature that a court’s failure 

to provide the advisement required by subsection (1) of 

this section should require the vacation of judgment and 

withdrawal of the plea or constitute grounds for finding a 

prior conviction invalid.

Although that subsection also states that nothing therein “shall 

be deemed to inhibit a court, in the sound exercise of its discretion, from vacating a judgment and permitting a defendant 

to withdraw a plea,” we held in State v. Rodriguez-Torres8 that 

this language did not create a new statutory procedure pursuant to which a plea entered before July 20, 2002, could be 

withdrawn after the person convicted of the crime had already 

served his sentence. And the Legislature has acquiesced in this 

interpretation.9 Section § 29-1819.02, therefore, confers no 

basis for relief for the 2002 plea.

[3] A “manifest injustice” common-law claim must be 

founded on a constitutional right that cannot and never could 

have been vindicated under the Nebraska Postconviction Act 

or by any other means.10 Chiroy Osorio seeks to vindicate 

the constitutional right set forth in Padilla v. Kentucky.

11 In 

Padilla, the U.S. Supreme Court held that in order to satisfy 

7 See State v. Miller, supra note 6.

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

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

9 See State v. Policky, 285 Neb. 612, 828 N.W.2d 163 (2013).

10 State v. Gonzalez, supra note 2, 285 Neb. at 947, 830 N.W.2d at 509.

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

(2010).
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STATE v. CHIROY OSORIO 389

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the Sixth Amendment standards of competent representation, 

counsel must inform the client whether a plea carries a risk 

of deportation.12

Because Chiroy Osorio was not in custody during any relevant time period, he never could have vindicated his claimed 

constitutional right under the Nebraska Postconviction Act.13

And there is currently no other means to vindicate a Padilla 

right. However, the Padilla right Chiroy Osorio seeks to vindicate does not apply to the 2002 plea.

The U.S. Supreme Court in Chaidez v. U.S.14 held that 

Padilla announced a new rule within the meaning of Teague 

v. Lane.

15 Thus, defendants whose convictions became final 

before Padilla could not benefit from its holding.16 Stated 

another way, the Padilla right is not retroactive.17

Chiroy Osorio’s conviction became final nearly a decade 

before Padilla. The district court properly denied Chiroy 

Osorio’s motion to withdraw his plea, because the constitutional right under which Chiroy Osorio claimed manifest injustice was inapplicable as a matter of law.

[4] Chiroy Osorio separately assigns as error the failure of 

the district court to explain its reasoning in its order denying 

his motion to withdraw his 2002 plea. An expression of the 

trial court’s reasoning is always encouraged and assists appellate review. Yet, a correct result will not be set aside merely 

because the lower court applied the wrong reasoning in reaching that result.18 There are no statutes, rules, or case law which 

would require setting aside a correct result simply because the 

lower court failed to articulate its reasoning. Given the clarity 

of the U.S. Supreme Court’s holding in Chaidez and Chiroy 

12 Id.

13 See § 29-3001(4)(d).

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

15 Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).

16 Id.

17 See id.

18 See, e.g., Feloney v. Baye, 283 Neb. 972, 815 N.W.2d 160 (2012); Keithley 

v. Black, 239 Neb. 685, 477 N.W.2d 806 (1991).
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390 286 NEBRASKA REPORTS

Osorio’s failure to so much as allege the necessary elements 

of relief under the postconviction statutes or § 29-1819.02, 

we find the district court’s failure to articulate its reasoning 

inconsequential.

CONCLUSION

We affirm the district court’s denial of Chiroy Osorio’s 

motion to withdraw his plea and vacate his conviction.

Affirmed

Steven Banks et al., each and all as individuals, pr

owners, taxpayers, and as supervisors serving districts

through 7, all of the County of Knox, and

of Knox, State of Nebraska, appellees

cross-appellants, v. Dave Heine

Governor, et al., appella

and cross-appellees

___ N.W.2d ___

Filed August 2, 2013. No. S-12-723.

1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated 

to reach a conclusion independent of the decision reached by the court below.

2. Constitutional Law: Statutes: Presumptions. A statute is presumed to 

be constitutional, and all reasonable doubts will be resolved in favor of its 

constitutionality.

3. Taxation: Words and Phrases. An excise tax is a tax imposed on the manufacture, sale, or use of goods or on an occupation or activity, and is measured by 

the extent to which a privilege is exercised by the taxpayer, without regard to the 

nature or value of the taxpayer’s assets.

4. Taxation. An excise tax is imposed upon the performance of an act.

5. ____. An excise tax includes taxes sometimes designated by statute or referred to 

as “privilege taxes,” “license taxes,” “occupation taxes,” and “business taxes.”

6. Taxation: Property: Valuation. A property tax is levied on real or personal 

property, with the amount of the tax usually dependent upon the value of the 

property.

7. Constitutional Law: Intent. Constitutional provisions are not open to construction as a matter of course; construction is appropriate only when it has been 

demonstrated that the meaning of the provision is not clear and that construction 

is necessary.