GERRARD, J.
Alma Ramirez Gonzalez was convicted of fraudulently obtaining public assistance benefits, based upon a no contest plea that she entered pursuant to a plea agreement. Over 2 years after her sentencing, she filed a motion to withdraw her plea, alleging that she had received ineffective assistance of counsel because her attorney had not explained that her plea would result in automatic deportation. We conclude that procedurally, Gonzalez was permitted to move for withdrawal of her plea. But we also conclude that she failed to prove by clear and convincing evidence that withdrawal of her plea was necessary to prevent a manifest injustice. Therefore, we affirm the district court's decision to overrule her motion.
Gonzalez was, at the time of this action, living in Grand Island, Nebraska, with two of her three children. In December 2006, before criminal proceedings were brought against her, Gonzalez was detained by the federal government for living in the United States illegally. As a result, deportation proceedings were brought against her. As of August 31, 2010, the deportation proceedings were ongoing.
In 2007, Gonzalez was arrested for fraudulently obtaining public assistance benefits in an amount greater than $500, which is a Class IV felony, punishable by up to 5 years' imprisonment or a $10,000 fine.
On March 20, 2008, Gonzalez withdrew her initial plea of not guilty and, pursuant to a plea agreement, pled no contest to the charge. In exchange for Gonzalez' plea of no contest, the State agreed to recommend a term of probation at sentencing. Gonzalez also agreed to pay restitution to the State for the benefits illegally obtained, in the amount of $18,522. The factual basis for the plea established that Gonzalez had applied for and received public assistance, but had not reported the fact that she was employed under an assumed name. Her failure to report her employment resulted in an overpayment of benefits.
Before accepting Gonzalez' plea, the court again advised her that conviction for the offense could result in her deportation or a denial of her naturalization requests, and she said she understood. The court convicted Gonzalez pursuant to her plea and, on May 8, 2008, sentenced her to a term of 5 years' probation.
Gonzalez filed a "Motion to Withdraw Plea and Vacate Judgment" in the district court on July 14, 2010, on the ground that she had received ineffective assistance of counsel. An evidentiary hearing was held. At the hearing, Gonzalez testified that she had not discussed the immigration consequences of her plea with her criminal trial counsel. Gonzalez testified that her criminal trial counsel had known Gonzalez was not a U.S. citizen, but Gonzalez had not informed her criminal trial counsel of her ongoing immigration case.
Gonzalez said that if she had known beforehand that there could be consequences with immigration that could result in deportation, she "would have looked for another solution." She admitted, however, that although the immigration consequences were very important to her before she entered her plea, she never asked her attorney whether there might be a problem. She also admitted that the court had informed her there could be immigration consequences to her plea, but that the advisement was said "very rapidly through the interpreter" and she "didn't understand much." She said that the first time she learned about the effect of the plea on her immigration status was about 5 months before the hearing on her motion to withdraw, when she was told by a different attorney who represented her in the immigration proceedings.
The district court denied Gonzalez' motion. While the district court accepted Gonzalez' claim that her criminal trial counsel's performance was deficient, the court determined that Gonzalez had failed to demonstrate prejudice resulting from that deficient performance. The court explained that Gonzalez' assertion that she would have found a "`different solution'" did not satisfy Gonzalez' burden of showing prejudice, because whether a "different solution" was possible was not within Gonzalez' control. The court also noted that Gonzalez had two different attorneys at the time of the plea—her criminal trial counsel and her immigration attorney—and apparently did not inquire of either one of them about the specific immigration consequences of her plea, despite her awareness that such consequences were possible. So, the court found that Gonzalez had failed to prove prejudice and denied her motion to withdraw her plea. Gonzalez appeals.
Gonzalez assigns, as consolidated, that the district court erred in denying her motion to withdraw her plea, because she was denied effective assistance of counsel.
The right to withdraw a plea previously entered is not absolute, and, in the absence of an abuse of discretion, refusal to allow a defendant's withdrawal of a plea will not be disturbed on appeal.
The State argues that we have no appellate jurisdiction. The State claims that there is no procedure in Nebraska law for withdrawal of a guilty plea after judgment based on ineffective assistance of counsel. So, the State argues, the trial court lacked jurisdiction over Gonzalez' motion and we likewise lack jurisdiction over her appeal.
The premise of the State's argument is incorrect; we do have jurisdiction over this appeal. But in order to explain the legal principles that govern our disposition of the merits of this particular appeal, it will be helpful to review some of our more recent case law regarding the procedural avenues available to a defendant who claims that he or she was not properly advised of the immigration consequences of a plea. Specifically, there are three such avenues generally available: (1) a motion for postconviction relief under the Nebraska Postconviction Act,
To begin with, this is not a postconviction action. For reasons that will become apparent below, it is at least possible that due to the U.S. Supreme Court's decision in Padilla v. Kentucky,
It is equally clear that §§ 29-1819.02 and 29-1819.03 provide no relief here, and Gonzalez does not contend otherwise. Section 29-1819.02 requires a trial court, before accepting a plea, to advise defendants that a conviction may have immigration consequences. And that section also establishes a statutory procedure whereby a convicted person may file a motion to have a criminal judgment vacated and a plea withdrawn when the court did not give the required advisement and the defendant faces an immigration consequence not included in the advisement given.
In this case, however, the statutory advisement was given. So, §§ 29-1819.02 and 29-1819.03 are inapplicable. But that does not foreclose a common-law remedy for withdrawal of a plea. We held in State v. Rodriguez-Torres
In short, while it is possible that Gonzalez could have brought a motion for postconviction relief based on her allegations, she is also permitted to move to withdraw her plea. The trial court had jurisdiction to consider her motion, and we have jurisdiction over her appeal. Whether Gonzalez has adduced the clear and convincing evidence of manifest injustice necessary to justify withdrawal, however, is another matter, and requires us to consider the merits of her assignment of error.
As noted above, withdrawal of a plea is proper only where the defendant makes a timely motion and establishes, by clear and convincing evidence, that withdrawal is necessary to correct a manifest injustice.
We have explained that "manifest injustice" may be proved if the defendant proves, by clear and convincing evidence, that (1) he or she was denied the effective assistance of counsel guaranteed by constitution, statute, or rule; (2) the plea was not entered or ratified by the defendant or a person authorized to so act on his or her behalf; (3) the plea was involuntary, or was entered without knowledge of the charge or that the sentence
Obviously, what is at issue here is whether Gonzalez proved, by clear and convincing evidence, that ineffective assistance of counsel has resulted in a manifest injustice. It is well understood that to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,
In 2002, we held in State v. Zarate
Specifically, the Court explained that when the law regarding the possible deportation consequences of a plea is not succinct and straightforward, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, the duty to give correct advice is equally clear. In sum, the Court concluded that counsel must inform his or her client whether a plea carries a risk of deportation and that to obtain relief on such a claim, the defendant must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.
We recognize that there is some significant dispute regarding whether the Court's holding in Padilla is applicable on collateral review of pleas that were entered before Padilla was decided.
We agree with the district court's conclusion that Gonzalez did not prove prejudice here. The district court had well-founded skepticism regarding Gonzalez' testimony that the immigration consequences of her plea were important to her, yet she apparently never inquired about them to either of her attorneys. She purportedly never did so despite having been cautioned of possible deportation consequences by the court more than once, and her acknowledgment even at the hearing on her motion to withdraw her plea that she had been at least aware of those advisements. She was aware of the general possibility of immigration consequences, and her criminal trial counsel could not have informed her of the specific effect of her plea on her "cancellation of removal," because Gonzalez had not informed her counsel of the separate immigration proceeding.
And most important, Gonzalez did not testify that the possibility of deportation would have led her to insist on going to trial instead of pleading guilty.
Simply put, Gonzalez presented no evidence that she would have insisted on going to trial absent her counsel's allegedly deficient performance,
Although we conclude that the district court had jurisdiction to consider Gonzalez' motion to withdraw her plea, despite the fact that her conviction had become final, we find that she did not prove ineffective assistance of counsel. The district court did not abuse its discretion in overruling her motion. The district court's order is affirmed.
AFFIRMED.
WRIGHT, J., not participating.