Wright, J.
In 2013, Francisco C. Rodriguez moved to withdraw his guilty plea and to vacate his 2004 conviction for attempted possession of a controlled substance, a Class I misdemeanor. He alleged that before entering a guilty plea in the 2004 proceedings, he did not receive the proper advisement under Neb.Rev.Stat. § 29-1819.02(1) (Reissue 2008), and that he currently faced immigration consequences from the resulting conviction.
Because Rodriguez moved to withdraw his plea after he had completed his sentence of 2 years' probation, the district court concluded that it did not have subject matter jurisdiction. We conclude that the court did have jurisdiction, and we reverse the judgment and remand the cause for further proceedings.
Subject matter jurisdiction is a question of law for the court, which requires an appellate court to reach a conclusion independent of the lower court's decision. State v. Clark, 278 Neb. 557, 772 N.W.2d 559 (2009).
In January 2004, Rodriguez was charged by information with possession of a controlled substance. As a result of a plea agreement, the charge was reduced to attempted possession of a controlled substance, a Class I misdemeanor under Neb. Rev.Stat. §§ 28-201(4)(e) (Cum.Supp.2004) and 28-416(3) (Supp.2003), and Rodriguez agreed to enter a plea of guilty.
On March 23, 2004, Rodriguez appeared before the district court and received the following advisement about the immigration consequences of a guilty plea:
After the advisement, Rodriguez entered a plea of guilty. The court accepted the plea, adjudged Rodriguez guilty, and sentenced him to 2 years' probation.
In February 2013, Rodriguez moved to withdraw his guilty plea and to vacate his conviction for attempted possession of a controlled substance. He alleged that he had not been properly advised of the immigration
The district court concluded it did not have jurisdiction, because Rodriguez filed his motion after his sentence had been completed. It distinguished the case at bar from State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009), and instead relied upon State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008). The court explained:
Rodriguez timely appeals. We moved the case to our docket pursuant to our statutory authority to regulate the dockets of the appellate courts of this state and ordered oral argument. See, Neb.Rev. Stat. § 24-1106(3) (Reissue 2008); Neb. Ct. R.App. P. § 2-111(E)(5)(a) (rev.2008).
Rodriguez assigns, restated, that the district court erred in dismissing for lack of jurisdiction his motion to withdraw his guilty plea and vacate his conviction.
Rodriguez argues that the district court had jurisdiction under § 29-1819.02 to consider the motion to withdraw his guilty plea and to vacate his conviction. We set forth the relevant provisions of § 29-1819.02:
The question is whether a court lacks jurisdiction to consider a motion filed pursuant to § 29-1819.02(2) if the defendant completed his or her sentence prior to filing the motion. In interpreting § 29-1819.02(2), we are guided by the following principles of statutory interpretation. In construing a statute, our objective is to determine and give effect to the legislative intent of the enactment. State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012). An appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012), cert. denied ___ U.S. ___, 133 S.Ct. 2359, 185 L.Ed.2d 1082 (2013). "[I]t is not within an appellate court's province to read a meaning into a statute that is not there." State v. Nelson, 276 Neb. 997, 1003, 759 N.W.2d 260, 266 (2009).
We addressed the application of § 29-1819.02(2) in State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009). There, we considered the scope of the relief provided in that subsection and rejected the argument that the relief was available only on direct review. We explained that "there is no language in the statute which would support such a limited construction, and indeed, the language permitting the procedure to be initiated by motion would suggest otherwise." Id. at 596, 772 N.W.2d at 579. Because the defendant in Yos-Chiguil had not completed his sentence at the time he moved to withdraw his plea, we declined to address "whether the remedy created by that subsection would extend to a defendant who had completed his or her sentence." 278 Neb. at 597, 772 N.W.2d at 579.
The district court in the instant case concluded that if § 29-1819.02(2) authorized relief after completion of a sentence, we would have addressed this fact in Yos-Chiguil. But in Yos-Chiguil, we did not reach this issue, because it was not before us. Our failure to address whether jurisdiction existed after completion of a sentence did not mean that we decided the question in a manner that would be adverse to Rodriguez in the case at bar.
But now we are presented with the precise question whether the procedure in § 29-1819.02(2) may be utilized by a defendant who has completed his or her sentence. Rodriguez had completed his sentence of probation when he moved to withdraw his plea and vacate his conviction. The immigration consequences of his guilty plea did not arise until several years after he had completed his sentence. Based on the fact that Rodriguez had completed his sentence and in reliance on State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008), the district court concluded it lacked jurisdiction under § 29-1819.02 to consider Rodriguez' motion. The State similarly argues that Rodriguez-Torres mandates a finding that jurisdiction under § 29-1819.02 is limited to motions filed before completion of a defendant's sentence. We disagree.
In Rodriguez-Torres, this court considered whether Daniel T. Rodriguez-Torres
The State relies upon Rodriguez-Torres, as did the district court, for the proposition that jurisdiction under § 29-1819.02 extends only to motions filed before a defendant has completed his or her sentence. This argument is based on our statement that
See Rodriguez-Torres, 275 Neb. at 367, 746 N.W.2d at 689.
This is not the first time that the State has argued, based solely on Rodriguez-Torres, that the relief provided in § 29-1819.02(2) must be limited. In State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009), the State alleged that this same statement in Rodriguez-Torres supported a finding that the relief provided in § 29-1819.02(2) was available only on direct review. We rejected this argument, because it "overstate[d] our holding in Rodriguez-Torres and overlook[ed] a critical difference" between the facts in Rodriguez-Torres and in the case then before us. See Yos-Chiguil, 278 Neb. at 595, 772 N.W.2d at 578. In Rodriguez-Torres, the plea sought to be withdrawn was accepted in 1997, long before the enactment of § 29-1819.02. The same was not true of the plea sought to be withdrawn in Yos-Chiguil. Because of this distinction, we held that the discussion of jurisdiction in Rodriguez-Torres must be limited to pleas entered before July 20, 2002. See Yos-Chiguil, supra.
But our focus on the fact that Rodriguez-Torres had completed his sentence was dicta. As we will explain below, whether his sentence was completed was not crucial to our decision that the court lacked jurisdiction to consider the motion to withdraw his plea entered before July 20, 2002. And to the extent Rodriguez-Torres stated that § 29-1819.02 does not apply to a defendant who has already completed his or her sentence, we conclude such statement is inconsistent with the statutory language.
Section 29-1819.02(2) creates a statutory remedy for a court's failure to give the appropriate immigration advisement before accepting a plea of guilty. The Legislature, however, has limited this remedy to a defendant who seeks to withdraw a plea which was accepted on or after July 20, 2002. See id. As to such pleas, the plain language of § 29-1819.02(2) provides that where a defendant has shown that he or she did not receive the proper advisement and that he or she may face immigration consequences as a result of the plea, a court must permit withdrawal of the plea. Where these requirements are met, a court is required to grant relief. See id.
However, a defendant whose plea was accepted prior to July 20, 2002, is not entitled to this statutory relief. Section 29-1819.02(3) does not create a procedure
A court's jurisdiction under § 29-1819.02 to consider motions seeking the statutory relief provided therein is also limited to pleas accepted on or after July 20, 2002. When a collateral attack is not raised in a recognized proceeding, a district court lacks jurisdiction over the claim. See State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005). A motion to withdraw a plea is a collateral attack, because it seeks modification of a judgment "in a manner other than by a proceeding in the original action." See State v. Keen, 272 Neb. 123, 127, 718 N.W.2d 494, 498 (2006). The only recognized procedure for seeking withdrawal of a plea under § 29-1819.02 is limited to pleas accepted on or after July 20, 2002. See § 29-1819.02(2).
Given this limitation, whether Rodriguez-Torres had completed his sentence was not relevant to our decision that we lacked jurisdiction. Even if Rodriguez-Torres had moved to withdraw his plea before completing his sentence, the court would have lacked jurisdiction over his motion filed pursuant to § 29-1819.02 and could not have granted him any relief under the statute. Therefore, our statement in State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008), that a court's jurisdiction to withdraw a plea under § 29-1819.02 is limited to a defendant whose sentence has not been completed was dicta.
Unlike the situation in Rodriguez-Torres, the plea sought to be withdrawn in the instant case was accepted after July 20, 2002, and the district court was not deprived of jurisdiction based on the date of the plea. Therefore, it is now necessary for us to determine whether a court lacks jurisdiction to consider a motion filed pursuant to § 29-1819.02(2) if the defendant completed his or her sentence prior to filing the motion. We conclude that it does not. To the extent that our statement in Rodriguez-Torres can be interpreted to limit the relief provided in § 29-1819.02(2) to a defendant whose sentence has not been completed, such interpretation is expressly disapproved.
We have previously held that all a defendant must show to withdraw a plea under § 29-1819.02 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. State v. Medina-Liborio, 285 Neb. 626, 829 N.W.2d 96 (2013). See, also, State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010). We have also rejected the argument that a defendant seeking to withdraw a plea pursuant to § 29-1819.02 is required to show prejudice, because "our case law `has made clear that only two elements must be met before a defendant can withdraw his or her plea [pursuant to § 29-1819.02]; and prejudice is not one of them.'" Medina-Liborio, 285 Neb. at 630, 829 N.W.2d at 99, quoting Mena-Rivera, supra (alteration in original).
Section 29-1819.02 imposes no requirement that a motion to withdraw a plea must be filed before a defendant completes his or her sentence. Statutory language is to be given its plain and ordinary meaning. And it is well established that it is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute. Medina-Liborio, supra.
Had the Legislature intended to limit the relief prescribed in § 29-1819.02(2) to those defendants who have not completed their sentences, it would have included such a limitation in the statute. We find it significant that the Legislature did not do so. "[T]he `Legislature is presumed to know the general condition surrounding the subject matter of the legislative enactment, and it is presumed to know and contemplate the legal effect that accompanies the language it employs to make effective the legislation.'" In re Invol. Dissolution of Wiles Bros., 285 Neb. 920, 928, 830 N.W.2d 474, 481 (2013), quoting State ex rel. Wagner v. Gilbane Bldg. Co., 276 Neb. 686, 757 N.W.2d 194 (2008). Furthermore, "the intent of the Legislature may be found through its omission of words from a statute as well as its inclusion of words in a statute." See Lozier Corp. v. Douglas Cty. Bd. of Equal., 285 Neb. 705, 714, 829 N.W.2d 652, 660 (2013).
The lack of any requirement in § 29-1819.02 that a defendant must not have completed his or her sentence is in stark contrast to the requirements under the Nebraska Postconviction Act, Neb.Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2008 & Cum.Supp.2012). Only "[a] prisoner in custody under sentence" may file a motion under its provisions. See § 29-3001(1). The fact that § 29-1819.02 does not include a similar requirement or use the term "prisoner" is indicative of the Legislature's intent.
Notably, Neb.Rev.Stat. § 29-1819.03 (Reissue 2008), the Legislature's statement of its intent in enacting § 29-1819.02, includes no language that would suggest the statutory relief was meant to be available only to a defendant whose sentence has not been completed. Because § 29-1819.03 pertains to the same subject matter as § 29-1819.02, the two statutes "should be conjunctively considered and construed to determine the intent of the Legislature." See State v. Hernandez, 283 Neb. 423, 427, 809 N.W.2d 279, 283 (2012).
As explained by the Legislature in § 29-1819.03, the problem sought to be remedied by § 29-1819.02 was a broad problem that existed "in many instances involving an individual who is not a citizen of the United States and who is charged with an offense punishable as a crime under state law." The Legislature created the immigration advisement as a specific remedy to this problem. See § 29-1819.03. The broad objective of the immigration advisement was "to promote fairness." See id. This objective would not be achieved by limiting the application of § 29-1819.02 to those defendants whose sentences have not been completed and excluding those who had completed their sentences. Section 29-1819.02 was enacted to address immigration consequences that could arise subsequent to a plea of guilty regardless of whether the sentence imposed as a result of the plea has been completed.
The dissent determines that the plain language of § 29-1819.02(2) limits its application to those individuals whose sentences have not been completed, because the statute uses the word "defendant."
Far from clearly indicating a limitation on relief, we interpret the term "defendant" in § 29-1819.02(2) as identifying to whom this subsection applies. Section 29-1819.02(2) does not make generic reference to "defendants" or "a defendant." It refers to "the defendant." See id. When used in such a context, "the" modifies "defendant" to indicate that it "refers to someone or something previously mentioned or clearly understood from the context or the situation." See Webster's Third New International Dictionary of the English Language, Unabridged 2368 (1993). As such, in § 29-1819.02(2), "the defendant" is a reference to a particular individual either "previously mentioned" in the statute or "clearly understood from the context" and not an allusion to the current status of being accused. There is only one person identifiable from the context of § 29-1819.02(2) — the one moving to vacate his or her plea in the criminal proceeding in which he or she was accused. For purposes of that criminal proceeding, the individual who was accused is always "the defendant." Therefore, we do not agree that the Legislature's use of "defendant" demonstrates an intent to limit the application of § 29-1819.02(2).
We find nothing in § 29-1819.02 that requires a motion to withdraw to be brought prior to completion of a sentence. The only time-based limitation imposed by the statute is that the plea sought to be withdrawn must have been accepted on or after July 20, 2002. See § 29-1819.02(2). Thus, we conclude that as to pleas entered on or after July 20, 2002, § 29-1819.02 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. The district court erred in dismissing Rodriguez' motion for lack of jurisdiction.
Rodriguez argues that the district court had jurisdiction over his motion under the common-law procedure for withdrawing a plea, as set forth in State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013). Because we conclude that the court had jurisdiction to consider Rodriguez' motion under § 29-1819.02, we do not consider whether there was alternative jurisdiction under a common-law procedure for withdrawing a plea. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. Holdsworth v. Greenwood Farmers Co-op., 286 Neb. 49, 835 N.W.2d 30 (2013).
For the foregoing reasons, we reverse the judgment of the district court dismissing Rodriguez' motion and remand the cause for further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
Cassel, J., concurring.
I write separately only to make plain an important matter inherent in the court's
Connolly, J., dissenting.
I disagree with the majority's conclusion that under Neb.Rev.Stat. § 29-1819.02 (Reissue 2008), a person who has served his sentence can obtain an order permitting him to withdraw a plea and plead not guilty. Regardless of when the person entered the plea of guilty or no contest, § 29-1819.02 does not provide a remedy after the sentence is served. At that point, it's over.
To recap the provisions of § 29-1819.02, subsection (1) sets out the immigration advisement that a trial court must give to defendants before accepting a plea of guilty or no contest. The advisement must inform a defendant that if he or she is not a U.S. citizen, a conviction for the charged offense could have the immigration consequence of removal from the country or denial of naturalization.
Subsection (2) provides a remedy for persons who entered an unadvised plea on or after July 20, 2002, if the person shows that he or she faces one of the unadvised immigration consequences.
Subsection (3) provides that this statutory remedy is unavailable for persons who entered a plea before July 20, 2002. But it also provides that "[n]othing in this section ... 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."
The first case we decided under § 29-1819.02 was State v. Rodriguez-Torres.
In Yos-Chiguil, we also clarified that Rodriguez-Torres did not decide whether a common-law remedy exists to withdraw a plea after a person has already served a sentence, because the issue was not presented.
In State v. Gonzalez,
But the majority's conclusion that the remedy under § 29-1819.02(2) applies to a person who has served a sentence is contrary to the statute's plain language. To repeat, under § 29-1819.02(2), if a defendant shows that he or she entered an unadvised plea on or after July 20, 2002, and that he or she faces one of the unadvised immigration consequences, "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." The statute unambiguously limits the procedure to a criminal "defendant."
It is true that by permitting collateral attacks under § 29-1819.02(2), we have not strictly construed the term "defendant," and we have probably been generous in the statute's application. A person convicted of a crime under a final judgment is obviously no longer a "defendant" in the literal sense of being a person accused of a crime.
But even under the most generous interpretation of the term "defendant," Rodriguez has served his time and is no longer a defendant. Moreover, the remedy under § 29-1819.02(2) has three conjunctive parts. If a movant proves a claim for relief, a court must (1) vacate the judgment, (2) permit the defendant to withdraw the plea of guilty or no contest, and (3) permit the defendant to enter a plea of not guilty. But how can a court permit a person to enter a plea of not guilty when he or she has already served his or her entire sentence? The underlying criminal proceeding is done. It's over. Obviously, double jeopardy prevents the State from recharging the person with a crime for which he or she has already been punished.
Nor do I believe the common-law remedy that we recognized in Gonzalez
We have permitted a person who has served his sentence to seek relief under the common-law procedure.
I conclude that because Rodriguez has no remedy available under § 29-1819.02(2) and has failed to show that a constitutional right is at stake under the common-law
Heavican, C.J., joins in this dissent.