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07/28/2017 09:09 AM CDT




                                                         - 96 -
                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                                                   STATE v. GACH
                                                  Cite as 297 Neb. 96




                                        State of Nebraska, appellee, v.
                                           Buoy P. Gach, appellant.
                                                    ___ N.W.2d ___

                                          Filed June 30, 2017.    No. S-16-156.

                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.	 Pleas: Convictions. Failure to give all or part of the advisement
                    required by Neb. Rev. Stat. § 29-1819.02(1) (Reissue 2016) regarding
                    the immigration consequences of a guilty or nolo contendere plea is not
                    alone sufficient to entitle a convicted defendant to have the conviction
                    vacated and the plea withdrawn pursuant to § 29-1819.02(2).
                3.	 Pleas: Convictions: Claims: Proof. To state a cognizable claim for
                    relief under Neb. Rev. Stat. § 29-1819.02(2) (Reissue 2016), the defend­
                    ant must allege and show that (1) the trial court failed to give all or part
                    of the advisement contained in § 29-1819.02(1) and (2) the defendant
                    faces an immigration consequence that was not included in the advise-
                    ment given. It is the defendant’s burden to establish these factors by
                    clear and convincing evidence.
                4.	 Pleas: Convictions: Notice: Proof. The second factor of the test
                    announced in State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574
                    (2009), assumes the court’s advisement, as given, was incomplete or
                    noncompliant and requires a defendant to show he or she faces an
                    immigration consequence that was not included in the advisement actu-
                    ally given. When considering the second factor, two questions must be
                    answered: What immigration consequences is the defendant actually fac-
                    ing, and What immigration consequences were actually communicated
                    to the defendant in the advisement as given?
                5.	 Pleas: Convictions: Extradition and Detainer. When the Department
                    of Homeland Security places an immigration detainer on an individual,
                    that person actually faces immigration consequences sufficient to claim
                    the protections of Neb. Rev. Stat. § 29-1819.02 (Reissue 2016).
                                     - 97 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. GACH
                               Cite as 297 Neb. 96

   Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
  Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for
appellant.
   Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
   Stacy, J.
   Buoy P. Gach moved to vacate his conviction and withdraw
his plea, claiming the District Court for Douglas County failed
to properly advise him of the immigration consequences of
conviction before accepting his plea of no contest.1 The district
court denied the motion, and Gach appeals. Finding no abuse
of discretion, we affirm.
                            FACTS
   On August 5, 2009, Gach was charged with two counts of
assault in the first degree2 and with two counts of use of a
deadly weapon to commit a felony.3 The charges stemmed from
events that occurred on July 3, when Gach and another indi-
vidual fired a gun into a group of people standing on a porch
and two people were seriously injured.
                              Plea
   A plea agreement was reached, and on January 11, 2010,
Gach entered a plea of no contest to one count of assault in the
first degree. The remaining charges were dismissed. The record
from the change-of-plea hearing reflects the following colloquy
between the court, the State, and Gach:

 1	
      See Neb. Rev. Stat. § 29-1819.02 (Reissue 2016).
 2	
      See Neb. Rev. Stat. § 28-308 (Reissue 2016).
 3	
      See Neb. Rev. Stat. § 28-1205 (Reissue 2016).
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           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                         STATE v. GACH
                        Cite as 297 Neb. 96

         THE COURT: Now, [Gach], before I can accept your
     plea of no contest I have to be certain that there are facts
     that support your plea of no contest.
         [Deputy county attorney], if you could please set forth
     the factual basis.
         [Deputy county attorney]: Your Honor, before I give
     the factual basis I just remind the Court that perhaps
     before [Gach] entered the plea you could do the immigra-
     tion advisory, of any potential impact on that. Would you
     like me to do that or would you like to do the —
         THE COURT: Let me do that right now, sir. In addition
     to the penalty of 1 to 50 years’ imprisonment, 50 being
     the max, one year being the minimum, your immigration
     status with the United States could be affected. Do you
     understand that, sir?
         [Gach]: (No response.)
         THE COURT: In other words — do you under-
     stand that?
         [Gach]: Yes.
         THE COURT: In other words, you could be deported
     . . . . Do you understand that?
         [Gach]: Yes.
At the conclusion of the plea hearing, the court accepted
Gach’s plea and found him guilty of assault in the first degree.
On April 1, Gach was sentenced to imprisonment for a term of
10 to 20 years.

                   Motion to Withdraw Plea
   On November 19, 2014, Gach filed a pro se motion to
vacate his conviction and withdraw his plea pursuant
to § 29-1819.02(2), claiming he was not given the proper
immigration advisement during his plea hearing. The court
appointed counsel for Gach and set the matter for an eviden-
tiary hearing.
   At the hearing, the State and Gach stipulated to several facts
which we summarize here:
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. GACH
                               Cite as 297 Neb. 96

• The District Court for Douglas County did not provide Gach
  the verbatim advisement contained in § 29-1819.02(1);
• Gach is not a U.S. citizen and was not a U.S. citizen at the
   time he entered his no contest plea;
• On April 14, 2010, the U.S. Immigration and Customs
   Enforcement Service’s detention and removal section filed
   an “Immigration Detainer — Notice of Action” with the
   Department of Correctional Services (DCS) that required
   DCS to “detain [Gach] to provide adequate time for [the
   Department of Homeland Security] to assume [his] custody”
   in order to “determine whether [he] is subject to removal
   from the United States”;
• DCS identified Gach’s “‘Projected Release Date’” as August
  3, 2019; and
• DCS had the immigration detainer on file and intended to
   hold Gach on behalf of the U.S. Immigration and Customs
   Enforcement Service at the conclusion of his sentence.
    During the hearing, all parties agreed that the applica-
ble legal standard was announced by this court in State v.
Yos-Chiguil.4 In that case, we held that to state a cognizable
claim for relief under § 29-1819.02(2), the defendant must
allege and show that (1) the trial court failed to give all or
part of the advisement contained in § 29-1819.02(1) and (2)
the defendant faces an immigration consequence that was not
included in the advisement given.
    The district court overruled Gach’s motion in an order
entered January 14, 2016. With respect to the first prong of the
Yos-Chiguil test, the court acknowledged its failure to comply
with § 29-1819.02, stating:
      [T]he Court did not give the exact verbatim advisement
      to [Gach]. In hindsight, it would have been more prudent
      for the Court to have given the verbatim advisement. .
      . . The Court did advise [Gach] that conviction of the
      offense could affect his immigration status and that he
      could be deported. The Court did not advise him that

 4	
      State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).
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               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                               STATE v. GACH
                              Cite as 297 Neb. 96

     this only affects him if he is not a United States citizen,
     and rather than use the word “removal,” the Court used
     the word “deported”.
The court went on to consider whether Gach was facing immi-
gration consequences that were not included in the advise-
ment as given, and it concluded:
        In this case, [Gach] has been notified that upon his
     release from [DCS], the United States will take custody
     of him to determine if he should be removed from the
     United States. This is one of the consequences of [his]
     conviction in this matter. The Court . . . advised [him] of
     this consequence when it stated to [him] during the plea
     colloquy that “[his] immigration status with the United
     States could be [affected and he] could be deported . . . .”
     [He] is subject to deportation or removal from the United
     States for which [he] was advised.
The court thus overruled Gach’s motion to withdraw his plea.
Gach timely appealed, and we moved the case to our docket.5
                 ASSIGNMENT OF ERROR
   Gach assigns the district court erred in overruling his motion
to withdraw his plea of no contest.
                    STANDARD OF REVIEW
   [1] 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.6
                        ANALYSIS
   Section 29-1819.02(1) requires that before accepting a
plea of guilty or no contest to any criminal offense, “the
court shall administer the following advisement on the
record to the defend­
                    ant”: “IF YOU ARE NOT A UNITED

 5	
      See In re Guardianship & Conservatorship of Donley, 262 Neb. 282, 631
      N.W.2d 839 (2001).
 6	
      State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                 STATE v. GACH
                                Cite as 297 Neb. 96

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) provides the rem-
edy for failure to give all or part of the immigration advise-
ment. It states in pertinent part:
      If, on or after July 20, 2002, the court fails to advise the
      defendant as required by this section and the defend­
      ant 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 defend­
      ant 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.
   [2,3] In Yos-Chiguil,7 we recognized that “failure to give all
or part of the advisement required by § 29-1819.02(1) regard-
ing the immigration consequences of a guilty or nolo conten-
dere plea is not alone sufficient to entitle a convicted defend­
ant to have the conviction vacated and the plea withdrawn
pursuant to § 29-1819.02(2).” We held that to state a cogni-
zable claim for relief under § 29-1819.02(2), the defendant
must allege and show that (1) the trial court failed to give all
or part of the advisement contained in § 29-1819.02(1) and (2)
the defendant faces an immigration consequence that was not
included in the advisement given. It is the defendant’s burden
to establish these factors by clear and convincing evidence.8

 7	
      State v. Yos-Chiguil, supra note 4, 278 Neb. at 598, 772 N.W.2d at 580.
 8	
      See State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010).
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. GACH
                               Cite as 297 Neb. 96

   We consider each Yos-Chiguil factor in turn, and we con-
clude that Gach has established the first factor but has failed to
meet his burden with respect to the second factor.
                 First Factor Under Yos -Chiguil
   Regarding the first factor, the record is clear that instead
of reciting the advisement set out in § 29-1819.02(1), the
district court improvised an advisement. Because the court’s
advisement failed to give “all or part of” the advisement
required under § 29-1819.02(1), the first Yos-Chiguil factor
is satisfied.9
   For the sake of completeness, we note the State asks us to
find that even when the verbatim statutory advisement is not
given, substantial compliance with § 29-1819.02(1) may be
sufficient to satisfy the first prong of the test under Yos-Chiguil.
Because we resolve this appeal by concluding Gach has not
satisfied the second prong of Yos-Chiguil, we need not decide
whether the first prong can ever be satisfied by an advisement
which does not follow the statutory language.
   However, we take this opportunity to remind lawyers and
judges that there is no excuse for failing to administer the
statutory advisement to every defendant. Justice Cassel’s
admonition in his concurrence to State v. Rodriguez10 bears
repeating:
      It takes only a moment. The wording is succinct. The stat-
      ute specifies the precise language. Judges have no reason
      to improvise or summarize. The “cost” of timely giving
      advisements is miniscule compared to the “benefit” of
      avoiding plea withdrawals years after the resulting judg-
      ments having been fully executed. Judges should fully
      and timely comply with the statutory mandate. And the
      practicing bar should ensure that judges do so.

 9	
      See State v. Yos-Chiguil, supra note 4, 278 Neb. at 598, 772 N.W.2d at
      580.
10	
      State v. Rodriguez, 288 Neb. 714, 727, 850 N.W.2d 788, 797 (2014)
      (Cassel, J., concurring).
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                STATE v. GACH
                               Cite as 297 Neb. 96

To be fair, Gach’s plea hearing occurred several years before
our opinion in Rodriguez was released. But the present appeal
illustrates the cost to the parties and the justice system in
terms of time and resources when the court improvises an
immigration advisement instead of giving the advisement con-
tained in § 29-1819.02(1).
               Second Factor Under Yos -Chiguil
   [4] Under the second factor, Gach must show he is fac-
ing an immigration consequence that was not included in the
advisement actually given. This factor assumes the advise-
ment, as given, was incomplete or noncompliant and requires
a defendant to show he or she faces an immigration conse-
quence that was not included in the advisement actually given.
When considering the second factor, two questions must be
answered: What immigration consequences is the defendant
actually facing, and What immigration consequences were
actually communicated to the defendant in the advisement
as given?
   Section 29-1819.02(1) requires that defendants be advised
of two distinct immigration consequences: removal from the
United States and denial of naturalization pursuant to the laws
of the United States.11 Both consequences are important, but
neither party suggests that denial of naturalization is at issue
in this case. Rather, the parties stipulated that Gach is not a
U.S. citizen and that an immigration detainer has been filed
with DCS requiring it to “detain [Gach] to provide adequate
time for [the Department of Homeland Security] to assume
[his] custody” in order to “determine whether [he] is subject to
removal from the United States.”
   [5] In State v. Mena-Rivera,12 we held that when the U.S.
Department of Homeland Security places an immigration
detainer on an individual, that person “‘actually faces’” immi-
gration consequences sufficient to claim the protections of

11	
      See State v. Rodriguez, supra note 10.
12	
      State v. Mena-Rivera, supra note 8, 280 Neb. at 955, 791 N.W.2d at 620.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                  STATE v. GACH
                                 Cite as 297 Neb. 96

§ 29-1819.02. We conclude Gach has sufficiently shown he
“actually faces” the immigration consequence of removal
from the United States. We next consider whether the court’s
immigration advisement, as given, warned Gach of this
consequence.
   The court advised Gach that his “immigration status with
the United States” could be affected and that he “could be
deported” as a consequence of the conviction. In denying the
motion to withdraw Gach’s plea, the court made a specific
finding that “[Gach] is subject to deportation or removal from
the United States for which [he] was advised.” In making this
finding, the court used the terms “deportation” and “removal”
interchangeably. We express no opinion on whether there is a
relevant legal distinction between those terms in the context
of this case, because that question was not presented to the
district court and has not been raised on appeal. In fact, at
oral argument, counsel for both parties suggested the terms are
basically synonymous.
   It is Gach’s burden to show, by clear and convincing
evidence,13 that he is facing an immigration consequence that
was not included in the advisement as given by the court. He
has shown he is facing the consequence of removal, but he has
failed to prove that the court’s advisement, as given, did not
advise him of that consequence. Gach has failed to satisfy the
second prong of the Yos-Chiguil test, and on this record, we
can find no abuse of discretion in the district court’s decision
to overrule Gach’s motion to withdraw his plea.14
                       CONCLUSION
   For the foregoing reasons, we affirm the judgment of the
district court.
                                                A ffirmed.

13	
      See State v. Mena-Rivera, supra note 8.
14	
      See, State v. Ortega, supra note 6; State v. Yos-Chiguil, supra note 4.
