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STATE v. GARCIA

Cite as 301 Neb. 912

State of Nebraska, appellee, v.

Alejandro Garcia, appell

___ N.W.2d ___

Filed December 14, 2018. No. S-17-1217.

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 fo

Platte County, Frank J. Skorupa, Judge. Judgment of Distr

Court affirmed.

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

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Nebraska Supreme Court Online Library

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

01/18/2019 09:08 AM CST
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STATE v. GARCIA

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

Papik, and Freudenber

Papik, 

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 
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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 
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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 to Withdraw Plea.

On February 22, 2017, Garcia filed a “Motion to Vacate” 

in the county court. Like the motion to reconsider, it 

acknowledged that the court gave the advisement required 

by § 29-1819.02 immediately prior to the entry of Garcia’s 

plea, but alleged that the Spanish translation was not accurate 

because of the improper translation of the word “removal.”

At a hearing on the motion, Garcia offered and the court 

received a document prepared by Janeth Murillo, a certified 

court interpreter. In the document, Murillo set forth a transcription of the words of the county court judge at the September 

12, 2011, hearing; the court interpreter’s Spanish translation of 

the judge’s words; Murillo’s translation of the court interpreter’s Spanish interpretation back into English; and an alternative 

Spanish translation showing how Murillo would have interpreted the court’s words. This document showed that, according to Murillo, the court interpreter used the Spanish word for 

“expatriate” instead of “removal” in giving the advisement. 

Garcia argued that “expatriate” means to “live in a country 

other than the one where you were born” and that because he 

was born in Cuba, he was not advised that a conviction could 

result in his removal from the United States.

The county court overruled this motion, stating that this 

claim was the same as the one Garcia had brought in 2015 
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and that Garcia had not brought any “materially and substantially different facts that would require reconsideration of this 

particular issue.” Garcia appealed to the district court, which 

affirmed, citing the law-of-the-case doctrine. Garcia timely 

appealed, and we removed the case to our docket on our own 

motion under Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

ASSIGNMENT OF ERROR

While Garcia assigns various errors committed by the district court, they can be consolidated into one: that the district 

court erred in affirming the county court’s order overruling 

Garcia’s motion to vacate on law-of-the-case grounds.

STANDARD OF REVIEW

[1,2] 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. State 

v. Gach, 297 Neb. 96, 898 N.W.2d 360 (2017). Resolution of 

this appeal requires that we determine the scope and extent 

of the statutory remedy Garcia seeks to employ. 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. State v. Medina-Liborio, 285 Neb. 626, 829 N.W.2d 

96 (2013).

ANALYSIS

Statutory Background.

As alluded to above, § 29-1819.02(1) directs trial courts to 

administer the following advisement to a defendant prior to 

accepting a plea of guilty or no contest “to any offense punishable as a crime under state law, except offenses designated as 

infractions under state law”: “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 
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REMOVAL FROM THE UNITED STATES, OR DENIAL OF 

NATURALIZATION PURSUANT TO THE LAWS OF THE 

UNITED STATES.”

Section 29-1819.02(2), in turn, provides a statutory remedy 

by which a defendant may withdraw a guilty or no contest plea 

in certain circumstances, providing:

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.

In this case, Garcia asked to withdraw his guilty plea under 

§ 29-1819.02(2) after he had already served his sentence for 

the conviction associated with that guilty plea. We begin our 

analysis by considering whether a trial court has authority to 

entertain a motion brought under § 29-1819.02(2) in these 

circumstances.

Did County Court Have Authority 

to Consider Garcia’s Motion?

On the question of whether § 29-1819.02(2) permits a trial 

court to consider a motion to withdraw a guilty plea after the 

defendant has completed his or her sentence, we do not write 

on a blank slate. Just over 4 years ago, in State v. Rodriguez, 

288 Neb. 714, 726, 850 N.W.2d 788, 796 (2014), we held that 

§ 29-1819.02(2) gives a court authority “to consider a motion 

to withdraw such plea or vacate the judgment regardless of 

whether a defendant has completed his or her sentence.” Our 
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concurring colleague would prefer to overrule Rodriguez, but 

for reasons explained below, we decline to do so.

The concurrence contends that several years before 

Rodriguez, we held in State v. Rodriguez-Torres, 275 Neb. 

363, 746 N.W.2d 686 (2008), that courts do not have authority to consider a motion brought under § 29-1819.02(2) once 

the defendant’s sentence has been served. The concurrence 

asserts that the Legislature did not amend § 29-1819.02(2) 

after Rodriguez-Torres and that, in Rodriguez, this court 

ignored the Legislature’s inaction and “create[d] [a] missing 

procedure through a revised interpretation.” Respectfully, we 

do not believe this is a correct reading of Rodriguez-Torres

or Rodriguez.

Rodriguez-Torres does contain some language, highlighted 

by the concurrence, stating that a trial court lacks authority to 

grant relief when a party’s sentence has already been served 

and observing that the Legislature has not created a procedure for the withdrawal of a plea in such circumstances. It is 

important to note, however, that the guilty pleas the defendant 

in Rodriguez-Torres sought to withdraw were accepted before 

July 20, 2002.

The date of the pleas at issue in Rodriguez-Torres is important, because § 29-1819.02 treats defendants whose pleas were 

entered after that date differently from those whose pleas 

were accepted before it. It is only defendants whose pleas are 

accepted after July 20, 2002, that have a right to withdraw 

their plea under the terms of § 29-1819.02(2). Conversely, 

a defendant whose plea was accepted before July 20, 2002, 

cannot invoke § 29-1819.02(2) and thus must identify some 

other statutory procedure for the withdrawal of the plea. Read 

in the context of Rodriguez-Torres, wherein the defendant’s 

guilty pleas were accepted before July 20, 2002, the language 

from Rodriguez-Torres the concurrence relies upon reflects a 

conclusion that there was no statutory procedure authorizing 

a defendant whose plea was accepted before July 20, 2002, 

to withdraw it after the sentence had been served. See, also, 
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State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009) 

(concluding that holding of Rodriguez-Torres pertained to pleas 

entered before July 20, 2002).

Given the limited scope of the holding in Rodriguez-Torres, 

we do not agree with the concurrence that this court ignored 

legislative inaction following Rodriguez-Torres and “create[d] 

[a] missing procedure” in Rodriguez. The plea the defendant in 

Rodriguez sought to withdraw was entered after July 20, 2002, 

and thus was subject to § 29-1819.02(2), a subsection that was 

not at issue or analyzed in Rodriguez-Torres. In fact, the opinion in Rodriguez-Torres quotes the rest of § 29-1819.02, but 

omits § 29-1819.02(2).

Because Rodriguez-Torres did not concern § 29-1819.02(2), 

its conclusion was not relevant to the question presented 

in Rodriguez. The question for this court in Rodriguez was 

thus not whether to create a procedure the Legislature had 

declined to create; § 29-1819.02(2) explicitly spells out a 

procedure that is commenced “on the defendant’s motion.” 

See, also, State v. Yos-Chiguil, 278 Neb. at 596, 772 N.W.2d 

at 579 (“[b]ut as to such pleas entered after July 20, 2002, 

§ 29-1819.02(2) establishes a statutory procedure whereby a 

convicted person may file a motion to have the criminal judgment vacated and the plea withdrawn . . .”). Rather, the question was whether the fact that the defendant’s sentence had 

been completely served precluded the withdrawal of a plea 

when the procedure created by § 29-1819.02(2) was invoked. 

Finding no language limiting the relief offered by the statute 

in this manner, we held that it did not. Now 4 years later, the 

Legislature has not amended § 29-1819.02(2), and we still 

see no statutory language limiting its relief to individuals still 

serving their sentences.

Our conclusions regarding the statutory language should 

not be understood to dispute the concurrence’s point that 

difficult questions can arise if relief can be granted under 

§ 29-1819.02(2) when the defendant’s sentence has been completely served. We do not, however, see anything that would 
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prevent these same difficult questions from arising in cases 

in which an individual obtains relief under § 29-1819.02(2) 

after serving part of his or her sentence, and no one disputes 

that § 29-1819.02(2) allows these defendants to withdraw 

their plea if they make the requisite showing under the statute. These questions might bear on whether, as a matter of 

policy, there should be a point at which it is simply too late 

to withdraw a plea, but in our view, such a policy question is 

for the Legislature. And because we see no indication that the 

Legislature limited the relief authorized by § 29-1819.02(2) to 

those still serving their sentences, we continue to hold that trial 

courts have the authority to consider motions brought under 

§ 29-1819.02(2) “regardless of whether a defendant has completed his or her sentence.” State v. Rodriguez, 288 Neb. 714, 

726, 850 N.W.2d 788, 796 (2014).

Does § 29-1819.02(2) Authorize 

Withdrawal of Garcia’s Plea?

Because we find that the county court had jurisdiction of 

Garcia’s motion to withdraw his plea, we proceed to consider 

the merits of his appeal. While Garcia primarily argues on 

appeal that the district court’s analysis of the law-of-the-case 

doctrine was incorrect, his appeal presents a more foundational 

issue: whether § 29-1819.02(2) allows a defendant to withdraw 

a guilty or no contest plea if the trial court correctly provided 

the advisement, but the defendant contends there was some 

error in the translation of the advisement. We turn to that question now.

In a number of cases in which we have interpreted and 

applied § 29-1819.02(2), we have held that a defendant must 

demonstrate two facts in order to withdraw a guilty or no 

contest plea under the statute: (1) that the trial court failed to 

give all or part of the advisement contained in § 29-1819.02(1) 

and (2) that the defendant faces an immigration consequence 

that was not included in the advisement given. See, e.g., State 

v. Gach, 297 Neb. 96, 898 N.W.2d 360 (2017); Rodriguez, 
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supra; State v. Medina-Liborio, 285 Neb. 626, 829 N.W.2d 

96 (2013); State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 

613 (2010); State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 

574 (2009).

Here, by acknowledging that the trial court gave the required 

advisement properly, Garcia has effectively conceded that he 

cannot demonstrate the first fact that we have said a defendant must demonstrate to withdraw a plea under the statute. 

Garcia’s motion is thus premised on § 29-1819.02(2)’s providing an alternative avenue for defendants to withdraw pleas of 

guilty or no contest.

[3,4] Resolving the issue of whether § 29-1819.02(2) provides an alternative means of withdrawing a plea requires us 

to interpret § 29-1819.02(2). When interpreting a statute, the 

starting point and focus of the inquiry is the meaning of the 

statutory language, understood in context. Kozal v. Nebraska 

Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147 (2017). 

Statutory language is to be given its plain and ordinary meaning. Medina-Liborio, supra.

A review of the language of § 29-1819.02(2) reveals why 

we have repeatedly held that a defendant must show that the 

trial court failed to give all or part of the advisement to withdraw a plea under the statute. Section 29-1819.02(2) explicitly conditions the relief described on the court’s “fail[ing] 

to advise the defendant as required by this section.” Notably 

absent from the statute, however, is any reference to a right to 

withdraw a plea based on inadequacies with the translation of 

the advisement or even a more general misunderstanding of 

the advisement on the part of the defendant.

In other cases in which we interpreted this statute to determine what a defendant must show in order to withdraw a plea, 

we have adhered closely to the statutory text. For example, in 

Mena-Rivera, supra, we rejected an argument that a person 

seeking to withdraw a plea under the section must demonstrate 

prejudice. We pointed out that we had previously interpreted 

the statute to require a defendant seeking to withdraw a plea to 
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show only two things and that prejudice was not one of them. 

Later, in Medina-Liborio, supra, we rejected an argument that 

a defendant could not withdraw his plea under this section 

if the defendant already knew he would be deported because 

of his plea-based conviction. Citing the principle of statutory 

interpretation that we will not read a meaning into a statute that 

is not there, we explained that the “proposed limitation on the 

statutory mandate requiring a court to permit withdrawal of a 

plea in the specified circumstances is nowhere to be found in 

the language of § 29-1819.02.” Medina-Liborio, 285 Neb. at 

631, 829 N.W.2d at 100. And finally, as discussed above, in 

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

rejected the argument that the relief offered by § 29-1819.02(2) 

was not available to individuals who had completed their sentences. Again, we relied on the absence of any language in the 

statute indicating that the relief was to be limited in the manner urged.

As the discussion of the preceding cases indicates, an interpretation that the remedy set forth in § 29-1819.02(2) extends 

to a circumstance not mentioned in the statute would be 

anomalous. The only way we could hold that a defendant may 

withdraw his plea because of a translation error would be to 

read meaning into the statute that is not reflected in its text. 

We have not done so when we have previously interpreted 

§ 29-1819.02(2), and we do not interpret statutes in that manner generally. See State v. Medina-Liborio, 285 Neb. 626, 829 

N.W.2d 96 (2013).

Indeed, if we were to find that § 29-1819.02(2) allows for 

the withdrawal of a plea based on inadequate translation, we 

would have to read substantial content into the statute that 

does not appear in its text. Were we to hold that the statute 

extends to translation inadequacies, subsidiary questions such 

as when is translation required, by what standards are alleged 

translation errors to be evaluated, and by what evidence are 

they to be proved would inevitably follow. There is nothing in 

the text of the statute that addresses those questions, and we 
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are neither well-equipped nor authorized to develop answers 

to them on our own. See, Neb. Const. art. II, § 1; Heckman 

v. Marchio, 296 Neb. 458, 466, 894 N.W.2d 296, 302 (2017) 

(explaining that “‘judicial legislation’” violates article II, § 1, 

of the Nebraska Constitution).

[5] For these reasons, we reiterate what we have said previously: To withdraw a plea under § 29-1819.02, 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. Medina-Liborio, supra; State v. Mena-Rivera, 280 Neb. 

948, 791 N.W.2d 613 (2010). Because Garcia cannot show 

that the trial court failed to give all or part of the advisement, 

we find that he was not entitled to withdraw his plea under 

§ 29-1819.02(2).

Garcia’s Motion Does Not Assert 

Constitutional Claim.

At oral argument, Garcia’s counsel contended that Garcia 

should be allowed to withdraw his plea under § 29-1819.02(2) 

and because the alleged translation errors resulted in a violation of Garcia’s constitutional right to due process. This court 

has said that a defendant’s inability to comprehend criminal 

proceedings or communicate in English at such proceedings 

can result in a violation of the defendant’s due process and 

Sixth Amendment rights. See State v. Alarcon-Chavez, 295 

Neb. 1014, 893 N.W.2d 706 (2017). But we have also recognized that not every translation inadequacy amounts to a 

due process violation. See Tapia-Reyes v. Excel Corp., 281 

Neb. 15, 27, 793 N.W.2d 319, 328 (2011) (explaining that 

“there is no constitutional right to a ‘flawless’ interpretation”; that “‘[c]ourtroom interpretation is a demanding and 

inexact art’”; that “‘the languages involved may not have precise equivalents for particular words or concepts’”; and that 

“[m]inor or isolated inaccuracies, omissions, interruptions, or 

other defects in translation are inevitable and do not warrant 
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relief where the translation is on the whole reasonably timely, 

complete, and accurate, and the defects do not render the 

proceeding fundamentally unfair”). Further complicating any 

potential due process claim in this case is our observation that 

“the failure of a trial court to warn a defendant of immigration consequences does not implicate a constitutional right.” 

State v. Yos-Chiguil, 281 Neb. 618, 626, 798 N.W.2d 832, 

840 (2011) (citing Smith v. State, 287 Ga. 391, 697 S.E.2d 

177 (2010)).

In the end, we need not resolve the question of whether 

Garcia’s due process rights were violated. Garcia’s motion to 

vacate did not allege that his due process rights were violated 

or seek to withdraw his plea on this basis. As a result, that 

question is not before us. See Linda N. v. William N., 289 Neb. 

607, 856 N.W.2d 436 (2014) (appellate court will not consider 

theory not presented by pleadings).

The sole question raised by Garcia’s motion was whether 

he was entitled to withdraw his no contest plea under 

§ 29-1819.02(2). Because we have determined that he was not, 

we find no error in the overruling of his motion.

CONCLUSION

Section 29-1819.02(2) allows for withdrawal of a guilty 

or no contest plea only if the trial court fails to give all or 

part of the required advisement and the defendant faces an 

immigration consequence that was not included in the advisement given. Because Garcia did not demonstrate that the trial 

court failed to give all or part of the required advisement, we 

conclude that Garcia was not entitled to withdraw his plea. 

Accordingly, we affirm.

Affirmed

Freudenberg, J., concurri

While concurring in the result of the majority opinion, 

I respectfully disagree that the county court had statutory 

authority to hear the matter. Neb. Rev. Stat. § 29-1819.02 
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(Reissue 2016) does not create a remedy for a person to 

withdraw his or her guilty or no contest plea after the person 

has fully served the sentence associated with the entry of 

their plea.

Adopted in 2002, § 29-1819.02 provides in relevant part:

(1) Prior to acceptance of a plea of guilty . . . to any 

offense punishable as a crime under state law, except . . . 

infractions . . . , 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.

(2) . . . 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 . . . 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 . . . and enter a plea of 

not guilty.

In State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 

686 (2008), this court addressed the application of the remedy 

created by this statute for a person who has completed his or 

her sentence. The court directly stated:

In § 29-1819.02, the Legislature gives a court discretion to vacate a judgment or withdraw a plea where a 

court has failed to provide the advisement required for 

pleas made on or after July 20, 2002. It does not, however, convey upon a court jurisdiction to do so where a 
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party has already completed his or her sentence. Nor has 

the Legislature in any other statute allowed for a specific 

procedure whereby a person who has been convicted of 

a crime and has already served his or her sentence may 

later bring a motion to withdraw his or her plea and 

vacate the judgment.

. . . .

. . . Years after having served his sentence, [the defendant] now seeks to have his pleas withdrawn and convictions vacated. However, no legislatively authorized 

procedure exists which allows him to do so. Absent such 

a legislative procedure, there is no present recourse for 

[the defendant] to withdraw his pleas and vacate the judgments years after having completed his sentences. We, 

therefore, determine that the district court did not have 

jurisdiction to address [the defendant’s] motion.

Rodriguez-Torres, 275 Neb. at 367-68, 746 N.W.2d at 689-90 

(emphasis supplied).

Thus, this court clearly stated its position on the matter, and 

following this interpretation of § 29-1819.02, the Legislature 

presumptively adopted it, because it took no action to modify 

or amend the language of the statute. See State v. Coble, 299 

Neb. 434, 908 N.W.2d 646 (2018). Specifically, the Legislature 

did not create the identified absent procedure. If the Legislature 

felt the Rodriguez-Torres interpretation was incorrect or in 

need of clarification, it had 6 years to act before we took such 

action ourselves.

Disregarding such legislative acquiescence, this court chose 

to create the missing procedure through a revised interpretation 

of this issue in State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 

788 (2014). In Rodriguez, this court held that by failing to 

use language expressly limiting the remedy to a “‘prisoner in 

custody under sentence,’” the Legislature implicitly expressed 

that the scope of the remedy in § 29-1819.02 was not limited 

to those defendants still serving their sentence. See 288 Neb. 
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at 724, 850 N.W.2d at 795. This means that convicted persons 

can move to withdraw their pleas and vacate their convictions years or even decades after their sentences have been 

fully completed.

The Legislature has limited challenges brought under postconviction proceedings to periods when the term of sentence 

is still being served. The Rodriguez holding now endlessly 

extends the possibilities of collateral attacks on criminal convictions. I know of no other statutory postconviction remedy 

that is so far reaching. This unique lack of time limit on 

the remedy, and without specific procedures to implement 

this remedy, raises difficult questions. For instance, it is 

unclear what the statute of limitations is for charges previously 

dismissed pursuant to plea agreements, what the sentencing restrictions and considerations are following subsequent 

convictions for such charges, or how courts will address the 

evidentiary problems created by the passage of an extended 

period of time. The Legislature’s failure to enact procedures 

addressing the questions inherent to such a remedy without 

a time limit—after being notified by Rodriguez-Torres of the 

necessity therefore—demonstrates that the Legislature did not 

actually intend to expand the remedy in the manner that we 

determined in Rodriguez.

Furthermore, there is no indication that the Legislature 

sought to interfere with federal law in the manner permitted 

by the Rodriguez holding. At a time when a trial court under 

state law would normally no longer have any jurisdiction 

over the criminal case, because the sentence has been fully 

served, it is now directed to vacate convictions for the sole 

purpose of preventing the imposition of federal immigration 

consequences upon these defendants. Setting aside criminal 

convictions based upon guilty or no contest pleas in such 

circumstances is akin to judicial clemency. This substantially 

interferes with the federal government’s ability to impose 

immigration consequences under federal law. When enacting 
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Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. GARCIA

Cite as 301 Neb. 912

§ 29-1819.02, the Legislature could not have intended to assist 

in the avoidance of federal immigration consequences for 

those who had completed their criminal sentences.

Criminal matters deserve finality, and the court’s current 

interpretation of this issue, as set forth in Rodriguez, does not 

fulfill this objective. I do not believe the county court had the 

statutory authority to take up Garcia’s motion to vacate under 

§ 29-1819.02, brought after he had fully completed his sentence. Therefore, I agree in the court’s result but respectfully 

disagree with its underlying legal basis in this matter.