29-1819.02. Plea of guilty or nolo contendere; advisement required; effect.

(1) 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:

(2) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. 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.

(3) 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. Nothing in this section, however, 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.

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Annotations

1. Procedure

2. Miscellaneous

1. Procedure

As to pleas entered on or after July 20, 2002, this section gives a court jurisdiction to consider a motion to withdraw such plea or vacate the judgment regardless of whether a defendant has completed his or her sentence. State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014).

Subsection (3) of this section does not create a procedure for withdrawal of a plea accepted before July 20, 2002. State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014).

This section imposes no requirement that a motion to withdraw a plea must be filed before a defendant completes his or her sentence. State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014).

Subsection (2) of this section establishes a statutory procedure whereby a convicted person may file a motion to have the criminal judgment vacated and the plea withdrawn when the advisement required by subsection (1) was not given and the conviction 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. State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).

This section 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, but it does not confer the power to vacate a judgment after the defendant has already completed his or her sentence. State v. Rodriquez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008).

The word "prior" has been interpreted to require the immigration advisement to be given by the court immediately before the entry of a plea of guilty or nolo contendere to ensure the defendant is aware of the immigration consequences of the plea when the plea is made, and to ensure a defendant who is arraigned and subsequently pleads to a lesser charge is aware that the immigration advisement applies. State v. Llerenas-Alvarado, 20 Neb. App. 585, 827 N.W.2d 518 (2013).

In cases where this section does not apply, an order overruling a motion to withdraw a plea does not affect a substantial right in a special proceeding and therefore does not constitute a final, appealable order. State v. Cisneros, 14 Neb. App. 112, 704 N.W.2d 550 (2005).

2. Miscellaneous

If a defendant otherwise meets the requirements of this section, he or she is entitled to move to withdraw a plea even if he or she was actually aware of the immigration consequences of the plea at the time it was entered. State v. Medina-Liborio, 285 Neb. 626, 829 N.W.2d 96 (2013).

Under this section, all a defendant must show before withdrawing a plea of guilty or nolo contendere is (1) that the trial court failed to warn the defendant of one of the listed consequences and (2) that the defendant is currently facing one of the omitted consequences. State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010).

The remedy created by subsection (2) of this section extends to those serving sentences at the time the motion to withdraw the plea is filed. State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).

Even if a defendant was not sufficiently advised of his or her rights concerning immigration consequences to pleading guilty, failure to give the advisement is not alone sufficient to entitle a convicted defendant to have the conviction vacated and the plea withdrawn; a defendant must also allege and show that he or she actually faces an immigration consequence which was not included in the advisement given. State v. Llerenas-Alvarado, 20 Neb. App. 585, 827 N.W.2d 518 (2013).

The defendant was properly advised under this section where advisement was not given verbatim but only minor, inconsequential wording changes were used in giving advisement as to immigration consequences of the defendant's plea. State v. Molina-Navarrete, 15 Neb. App. 966, 739 N.W.2d 771 (2007).