State v. Garcia

301 Neb. 912

920 N.W.2d 708

STATE of Nebraska, Appellee,

v.Alejandro GARCIA, Appellant.

No. S-17-1217.

Supreme Court of Nebraska.

Filed December 14, 2018.

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

Douglas J. Peterson, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Papik, J.

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 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 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 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

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

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 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...