State v. Rodriguez-Torres

Upon due consideration of the record, the court finds that
respondent should be and hereby is suspended from the prac-
tice of law for a period of 6 months, effective immediately.
respondent shall comply with Neb. Ct. r. of Discipline 16 (rev.
2004), and upon failure to do so, he shall be subject to punish-
ment for contempt of this court. at the end of the 6-month
suspension period, respondent may apply to be reinstated to the
practice of law, provided that respondent has demonstrated his
compliance with rule 16, and further provided that relator has
not notified this court that respondent has violated any disci-
plinary rule during his suspension.
CoNCLUsIoN
We find by clear and convincing evidence that respon-
dent 	violated 	Dr 	1-102(a)(1) 	and 	(5), 	Dr 	6-101(a)(3),
Dr 7-101(a)(2), and his oath of office as an attorney. It is
the judgment of this court that respondent be suspended from
the practice of law for a period of 6 months. respondent shall
comply with rule 16, and upon failure to do so, he shall be
subject to punishment for contempt of this court. Furthermore,
respondent is directed to pay costs and expenses in accordance
with Neb. rev. stat. §§ 7-114 and 7-115 (reissue 1997), rule
10(p), and Neb. Ct. r. of Discipline 23 (rev. 2001), within
60 days after an order imposing costs and expenses, if any, is
entered by this court.
J udgment of SuSpenSion .
S tate of nebraSka , appeLLee , v . danieL t.
rodriguez -torreS, appeLLant .
746 N.W.2d 686
Filed april 4, 2008. 	No. s-06-1351.
1. Jurisdiction: Appeal and Error. a jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. Judgments: Statutes: Appeal and Error. 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. roDrIgUez-torres 	363
Cite as 275 Neb. 363
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

364 	275 Nebraska reports
3. Jurisdiction: Appeal and Error. before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
4. Statutes: Appeal and Error. statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
5. ____: ____. statutory language is to be given its plain and ordinary meaning,
and an appellate court will not resort to interpretation to ascertain the meaning of
statutory words which are plain, direct, and unambiguous.
appeal from the District Court for Douglas County: J. patrick
muLLen, Judge. remanded with directions.
Michael D. Nelson and Cathy r. saathoff, of Nelson Law,
L.L.C., for appellant.
Jon bruning, attorney general, James D. smith, and, on
brief, susan J. gustafson for appellee.
heavican, 	C.J., 	wright, 	connoLLy, 	gerrard, 	S tephan,
mccormack, and miLLer -L erman, JJ.
mccormack, J.
NatUre oF Case
Daniel t. rodriguez-torres appeals from the district court’s
denial of his motion to vacate judgment and allow for with-
drawal of his guilty pleas. the main question presented by this
appeal is whether rodriguez-torres is entitled to withdraw his
guilty pleas for two separate convictions after having already
served his sentences, because, he claims, he was not advised that
his convictions could result in deportation. the other question
presented by this appeal is whether rodriguez-torres received
effective assistance of counsel.
baCkgroUND
Following a plea of guilty, rodriguez-torres was convicted in
January 1997 of possession of a controlled substance, a Class IV
felony. rodriguez-torres was sentenced to 2 years’ supervised
probation. rodriguez-torres was subsequently charged with
possession of a controlled substance and violation of probation.
He pled guilty to violation of probation and was sentenced to 1
year’s imprisonment. rodriguez-torres did not perfect a direct
appeal of either conviction.

In July 2006, rodriguez-torres filed a motion to vacate judg-
ment and allow for withdrawal of guilty pleas. He alleged that
as a result of his guilty pleas in 1997 and 1999, he became
deportable by the bureau of Citizenship and Immigration
services. rodriguez-torres alleged that he was not advised of
the effect his guilty pleas would have on his immigration status
and was, therefore, unable to enter a knowing, voluntary, and
intelligent plea. rodriguez-torres further alleges that his attor-
ney’s failure to advise him of the immigration consequences of
his guilty pleas constitutes ineffective assistance of counsel.
at the hearing before the district court on the motion, coun-
sel for rodriguez-torres advised the court that the action was
not one for postconviction relief. Instead, counsel characterized
the action as “an action more in terms of equity and justice.”
the motion was denied by the district court, which found that
there existed no good or sufficient reasons why rodriguez-
torres should be allowed to withdraw his pleas. rodriguez-
torres appealed the district court’s decision, and we moved this
appeal to our docket.
assIgNMeNts oF error
rodriguez-torres assigns that the district court erred by
(1) finding that no good or sufficient reasons existed to allow
rodriguez-torres to withdraw his pleas of guilty or vacate the
judgments, (2) not finding that rodriguez-torres’ immigration
consequences were the direct result of his guilty pleas and find-
ing that he need not have been advised of such consequences,
and (3) concluding that rodriguez-torres did not receive inef-
fective assistance of counsel.
staNDarD oF reVIeW
[1] a jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of law.1
[2] to the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
1 State v. Nelson, 274 Neb. 304, 739 N.W.2d 199 (2007).
state v. roDrIgUez-torres 	365
Cite as 275 Neb. 363

366 	275 Nebraska reports
independent conclusion irrespective of the determination made
by the court below.2
aNaLYsIs
[3] before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.3
rodriguez-torres’ motion to vacate judgment and allow for
withdrawal of guilty pleas is premised on Neb. rev. stat.
§ 29-1819.02 (Cum. supp. 2006). section 29-1819.02, which
was adopted in 2002, provides:
(1) prior to acceptance of a plea of guilty or nolo con-
tendere 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:
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.
. . . .
(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 judg-
ment 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.
the state asserts that although § 29-1819.02 gives the trial
court some discretion to allow a defendant to withdraw a
guilty plea, the statute does not provide a separate procedure
2 State v. Petty, 269 Neb. 205, 691 N.W.2d 101 (2005).
3 State v. Pratt, 273 Neb. 817, 733 N.W.2d 868 (2007).

to accomplish that after the defendant’s conviction has become
final. the state further asserts that absent a statutorily authorized
procedure allowing for the present action, the district court was
without jurisdiction to address the merits of rodriguez-torres’
motion. We agree.
[4,5] statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the determination made by
the court below.4 statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort
to interpretation to ascertain the meaning of statutory words
which are plain, direct, and unambiguous.5
In § 29-1819.02, the Legislature 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. It does not, however, convey upon a court juris-
diction to do so where a party has already completed his or her
sentence. Nor has the Legislature in any other statute allowed
for a specific procedure whereby a person who has been con-
victed of a crime and has already served his or her sentence
may later bring a motion to withdraw his or her plea and vacate
the judgment.
We have concluded on a number of occasions that where a
criminal procedure is not authorized by statute, it is unavailable
in a criminal proceeding.6 For example, in State v. Louthan,7 a
defendant charged with second-offense driving under the influ-
ence (DUI) filed a petition seeking a determination that a prior
conviction for first-offense DUI was invalid for purposes of
enhancement. We held that a prior conviction used for enhance-
ment purposes may not be collaterally attacked in a separate
proceeding. We stated, “the Legislature has not enacted a pro-
cedure for asserting second-tier challenges to prior plea-based
4 State v. Gozzola, 273 Neb. 309, 729 N.W.2d 87 (2007).
5 State v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005).
6 see, State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999); State v. Miller,
240 Neb. 297, 481 N.W.2d 580 (1992). see, also, State v. El-Tabech, 259
Neb. 509, 610 N.W.2d 737 (2000).
7 State v. Louthan, supra note 6.
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368 	275 Nebraska reports
DUI convictions, and thus, unless such a procedure is constitu-
tionally mandated, it ‘is unauthorized and, therefore, unavail-
able under Nebraska criminal procedure.’”8
We reached a similar conclusion in State v. El-Tabech,9
wherein a prisoner brought a motion under the Nebraska
postconviction act to compel state-funded DNa testing. We
concluded that such a motion was prohibited under the post-
conviction statute under the circumstances of that case and
that there were no available common-law civil procedures. We
declined, under the factual circumstances of that case, where
no constitutional issue presented itself, to fashion a procedure
where none existed. We determined that in the absence of a leg-
islatively mandated procedure, there was currently no recourse
procedure available to the prisoner.
Here, rodriguez-torres failed to directly appeal his convic-
tions or seek postconviction relief. Years after having served
his sentence, rodriguez-torres now seeks to have his pleas
withdrawn and convictions vacated. However, no legislatively
authorized procedure exists which allows him to do so. absent
such a legislative procedure, there is no present recourse for
rodriguez-torres to withdraw his pleas and vacate the judg-
ments years after having completed his sentences. We, there-
fore, determine that the district court did not have jurisdiction
to address rodriguez-torres’ motion.
CoNCLUsIoN
For the reasons discussed above, we remand this action
to the district court with directions to dismiss rodriguez-
torres’ motion to vacate judgment and allow for withdrawal of
guilty pleas.
remanded with directionS.
8 Id. at 186, 595 N.W.2d at 925.
9 State v. El-Tabech, supra note 6.