State v. Mena-Rivera

Finally, appellants cite cases from other jurisdictions in
support of their argument that reinstatement of an appeal fol-
lowing dismissal necessarily cures a jurisdictional defect. We
need not discuss those cases, because the question of appellate
jurisdiction in the cases before us is necessarily dependent
upon the provisions of Nebraska statutes as interpreted and
applied by the appellate courts of this state. We conclude that
the reasoning of the Nebraska Court of Appeals in Ferer is
correct and directly applicable to the jurisdictional issue pre-
sented in these appeals. Notices of appeal were not filed within
30 days after entry of the final orders on March 19, 2010, as
required by § 25-1912(1), and therefore we do not have appel-
late jurisdiction.
CONCLUSION
[5] When an appellate court is without jurisdiction to act,
the 	appeal 	must 	be 	dismissed.11 Accordingly, 	we 	dismiss
these appeals.
A ppeAls dismissed.
stAte of NebrAskA, Appellee , v.
WilmAr A. meNA-riverA, AppellANt.
791 N.W.2d 613
Filed December 17, 2010. 	No. S-10-112.
1. Pleas: Proof. The burden is on the defendant to establish by clear and convincing
evidence the grounds for withdrawal of a plea.
2. Pleas: Appeal and Error. 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.
3. Judgments: Statutes: Appeal and Error. To the extent an appeal calls for statu-
tory interpretation or presents questions of law, an appellate court must reach its
conclusion independent of the trial court.
4. Statutes: Legislature: Intent. When construing a statute, a court’s objective is to
determine and give effect to the legislative intent of the enactment.
11 Malolepszy v. State, supra note 3; In re Guardianship & Conservatorship
of Woltemath, supra note 3.
948 	280 NebrASkA repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

5. Statutes: Appeal and Error. When construing a statute, an appellate court
must look to the statute’s purpose and give to the statute a reasonable construc-
tion which best achieves that purpose, rather than a construction which would
defeat it.
6. ____: ____. Absent a statutory indication to the contrary, an appellate court gives
words in a statute their ordinary meaning.
7. ____: ____. An appellate court will not read into a statute a meaning that is
not there.
8. Words and Phrases. The word “prior” is generally understood to mean preced-
ing in time or in order.
9. Pleas: Legislature: Intent: Words and Phrases. Interpreting “prior” to mean
“immediately before” the entering of a plea of guilty or nolo contendere better
reflects the legislative intent of Neb. rev. Stat. § 29-1819.02 (reissue 2008).
10. Criminal Law: Pleas: Proof. To withdraw a plea under Neb. rev. Stat.
§ 29-1819.02 (reissue 2008), all a defendant must show 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.
11. Criminal Law: Pleas. Neb. rev. Stat. § 29-1819.02 (reissue 2008) does not
require that the immigration consequences of a conviction be an absolute cer-
tainty before a defendant may withdraw his plea.
12. Words and Phrases. “May” is used to connote a contingency or a possibility.
“Will,” on the other hand, conveys futurity and carries with it certainty that the
event will happen.
Appeal from the District Court for Colfax County: mAry C.
G ilbride, Judge. reversed.
Joshua W. Weir, of Dornan, Lustgarten & Troia, p.C., L.L.O.,
for appellant.
Jon bruning, Attorney General, and kimberly A. klein for
appellee.
H eAviCAN, 	C.J., 	WriGHt, 	C oNNolly, 	G errArd, 	stepHAN,
mCC ormACk , and miller-lermAN, JJ.
C oNNolly, J.
Under Neb. rev. Stat. § 29-1819.02 (reissue 2008), the
trial court—before accepting a guilty plea or a nolo contendere
plea—must advise a defendant that the plea could result in
removal from the United States or a denial of naturalization.
The court gave the advisement to Wilmar A. Mena-rivera
before accepting a not guilty plea at his arraignment. but
later, when under a plea bargain he pleaded guilty to a lesser
STATe v. MeNA-rIverA 	949
Cite as 280 Neb. 948

offense, the court failed to repeat the advisement. May Mena-
rivera withdraw his guilty plea because the court did not
repeat the advisement? We conclude that he may. We reverse
the district court’s order denying his motion to withdraw his
guilty plea.
bACkGrOUND
At his arraignment on December 17, 2008, Mena-rivera,
a lawful resident originally from el Salvador, pleaded not
guilty to child abuse, at the time a Class III felony,1 after first
receiving an advisement required by § 29-1819.02. Section
29-1819.02 requires a court to advise a defendant, before
accepting a plea of guilty or nolo contendere, that a conviction
for the crime charged may have adverse immigration conse-
quences. After receiving the advisement, Mena-rivera stated
that he understood it.
Later, under a plea agreement, Mena-rivera appeared before
the court and pleaded guilty to one count of attempted child
abuse, a Class IIIA felony.2 During this appearance, the court
did not repeat the immigration advisement. Mena-rivera, how-
ever, acknowledged that the court had arraigned him previously
and that he understood his rights.
On June 3, 2009, Mena-rivera moved to withdraw his plea.
He claimed that because the court failed to reread the advise-
ment, his plea was involuntary. The court noted that it had not
given him the advisement before he entered his guilty plea. but
then it ruled that to have his plea withdrawn, he must demon-
strate two things. First, he must show that he was prejudiced by
the nonadvisement. According to the district court, to demon-
strate prejudice, the defendant must show that it is “‘reasonably
probable he would not have pleaded guilty or nolo contendere
if properly advised.’” Second, the court required that Mena-
rivera show that there is more than a remote possibility that
the conviction would have adverse immigration consequences.
To allow the defendant to show this, the trial court ordered an
evidentiary hearing.
1 Neb. rev. Stat. § 28-707(5) (reissue 2008).
2 See Neb. rev. Stat. § 28-201(4)(c) (reissue 2008).
950 	280 NebrASkA repOrTS

At 	the 	evidentiary 	hearing, 	Mena-rivera 	introduced 	an
immigration detainer from the U.S. Department of Homeland
Security (DHS). The detainer stated that DHS had commenced
an investigation to determine whether Mena-rivera is sub-
ject to removal from the United States. He introduced this to
show that his conviction would have the adverse immigration
consequences required by the statute. Mena-rivera, however,
declined to adduce any evidence concerning prejudice. He
argued that doing so would violate his attorney-client privilege.
because he failed to show prejudice, the court overruled his
motion to withdraw his plea. Later, the court sentenced Mena-
rivera to a term of 20 to 48 months in prison, with credit for
352 days served.
ASSIGNMeNTS OF errOr
Mena-rivera claims as error the following:
1. The court erred in refusing to allow Mena-rivera to with-
draw his plea.
2. The court erred in not warning him of the immigration
consequences of his plea as required by § 29-1819.02.
3. The court erred in requiring Mena-rivera to show preju-
dice from the court’s failure to advise under § 29-1819.02.
4. The court erred in accepting his plea without establishing
the voluntary and intelligent nature of the guilty plea before
accepting it.
5. Mena-rivera was denied his right to effective assistance
of counsel under the Sixth Amendment.
STANDArD OF revIeW
[1,2] The burden is on the defendant to establish by clear
and convincing evidence the grounds for withdrawal of a plea.3
The right to withdraw a plea previously entered is not abso-
lute. 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.4
3 State v. Williams, 276 Neb. 716, 757 N.W.2d 187 (2008).
4 See id.
STATe v. MeNA-rIverA 	951
Cite as 280 Neb. 948

[3] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach its
conclusion independent of the trial court.5
ANALYSIS
tHe C ourt WAs required to G ive meNA-riverA tHe
WArNiNG At tHe time of tHe G uilty pleA
Mena-rivera argues that the lower court was required to
reread him the warning before it accepted his plea on attempted
child abuse. It is not enough, Mena-rivera argues, that the trial
court warned him when it arraigned him on the initial charge of
child abuse. The State, of course, views it differently. It argues
that this earlier warning was sufficient. And if it was not,
Mena-rivera must show that he was prejudiced by the court’s
failure to repeat the warning.
Section 29-1819.02 states in part:
(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.
[4-7] In construing § 29-1819.02, our objective is to deter-
mine and give effect to the legislative intent of the enactment.6
When construing a statute, we must look to the statute’s pur-
pose and give to the statute a reasonable construction which
best achieves that purpose, rather than a construction which
5 State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).
6 See, State v. Lebeau, ante p. 238, 784 N.W.2d 921 (2010); In re Adoption
of Kailynn D., 273 Neb. 849, 733 N.W.2d 856 (2007); Peterson v. Minden
Beef Co., 231 Neb. 18, 434 N.W.2d 681 (1989).
952 	280 NebrASkA repOrTS

would defeat it.7 Absent a statutory indication to the contrary,
we give words in a statute their ordinary meaning.8 And we
will not read into a statute a meaning that is not there.9
[8] Here, the result hinges on the meaning of the word
“prior.” The word “prior” is generally understood to mean “pre-
ceding in time or in order.”10 It is true that giving the advise-
ment at a defendant’s initial arraignment would be prior to the
defendant’s entering a plea. but when we consider the legis-
lative intent behind § 29-1819.02, we conclude that “prior”
should be read to entail more immediacy.
In enacting § 29-1819.02, the Legislature was clearly con-
cerned with the unfairness of pleas that defendants enter with-
out full knowledge of their consequences.11 We believe that
reading “prior” to mean that the court should give the advise-
ment immediately before the defendant enters a guilty plea or
nolo contendere plea better promotes the Legislature’s intent.
In contrast, to read “prior” to mean that the court can give the
advisement at any time before a defendant enters a plea could
undermine the Legislature’s intent.
First, weeks or months may often pass between when a court
initially arraigns a defendant and when the defendant enters his
plea of guilty or nolo contendere. During this time, the defend-
ant may forget what the court advised him of at his initial
arraignment. In such a case, the Legislature’s intent of ensuring
that the defendant knew the immigration consequences of his
plea could be frustrated.
Second, the Legislature’s intent could be frustrated because
defendants often plead to a lesser charge than what they were
initially arraigned on. Mena-rivera is one such defendant.
7 In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010); Herrington v.
P.R. Ventures, 279 Neb. 754, 781 N.W.2d 196 (2010).
8 See, In re Estate of Fries, supra note 7; Herrington v. P.R. Ventures, supra
note 7.
9 In re Estate of Fries, supra note 7; In re Adoption of Kailynn D., supra
note 6.
10 Webster’s encyclopedic Unabridged Dictionary of the english Language
1145 (1994).
11 See Neb. rev. Stat. § 29-1819.03 (reissue 2008).
STATe v. MeNA-rIverA 	953
Cite as 280 Neb. 948

A layperson could reasonably expect less severe penalties
to flow from a less severe charge. If a defendant who pleads
guilty to a lesser charge than what he was arraigned on is
not read the immigration advisement when he enters his plea
of guilty or nolo contendere, he may believe that the prior
advisement does not apply. This uncertainty, however, is
the mischief that the Legislature wished to combat when it
enacted § 29-1819.02.
[9] We conclude that interpreting “prior” to mean “immedi-
ately before” the entering of a plea of guilty or nolo contendere
better reflects the legislative intent of § 29-1819.02.
The State argues that even if the lower court erred in not
rereading the advisement to Mena-rivera, the court should
not allow him to withdraw his plea unless he can show
prejudice. Our case law involving § 29-1819.02, however,
has made clear that only two elements must be met before a
defendant can withdraw his or her plea; and prejudice is not
one of them.
[10] recently, in State v. Yos-Chiguil,12 we stated 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.
The court had advised the defendant in Yos-Chiguil that a
“conviction could adversely affect his ability to remain or work
in the United States.”13 The court did not, however, warn the
defendant that he could lose the opportunity to one day acquire
citizenship. We decided that the defendant in Yos-Chiguil could
not withdraw his plea because he had made no allegations that
“he faces the prospect of denial of an application for naturali-
zation based solely upon the conviction which he seeks to
vacate.”14 We did not require the defendant in Yos-Chiguil to
show prejudice apart from the two elements that appear in
the text of the statute. This was so even though the defendant
12 State v. Yos-Chiguil, supra note 5.
13 Id. at 597, 772 N.W.2d at 579.
14 Id. at 599, 772 N.W.2d at 580.
954 	280 NebrASkA repOrTS

already knew that some immigration consequences would flow
from his plea.
Having established that § 29-1819.02 required the court
to reread the immigration advisement to Mena-rivera when
he entered his guilty plea—which it failed to do—we now
examine the second element: whether Mena-rivera faces an
immigration consequence of which the court did not warn him.
We stated in Yos-Chiguil that a “defendant must also allege and
show that he or she actually faces an immigration consequence
which was not included in the advisement given.”15
Here, Mena-rivera introduced into evidence a detainer
from DHS. It stated that DHS had initiated an investiga-
tion to determine whether he is subject to removal from the
United States.
[11,12] We do not read Yos-Chiguil’s language that a defend-
ant “actually face[]” immigration consequences as saying that
the consequences must be an absolute certainty before the
defendant may withdraw his plea under § 29-1819.02. The
statute uses the word “may” as opposed to “will.” “May” is
used to connote a contingency or a possibility.16 “Will,” on the
other hand, conveys futurity17 and carries with it certainty that
the event will happen. Also, immigration law can be complex
and the exact consequences for any individual defendant can
be difficult to forecast. We do not believe it is wise to require
our trial court judges to wade into this complex area of law, in
which most judges have little expertise. Nor should we require
judges to wait so long to see the results of deportation that it
may be too late for defendants to effectively avail themselves
of § 29-1819.02. We conclude that when DHS places an immi-
gration detainer on an individual, that person “actually faces”
immigration consequences so that he may claim the protections
of § 29-1819.02. Mena-rivera has thus satisfied the second ele-
ment of the statute.
15 Id. at 598, 772 N.W.2d at 580.
16 See Webster’s encyclopedic Unabridged Dictionary of the english
Language, supra note 10 at 886.
17 Id. at 1634.
STATe v. MeNA-rIverA 	955
Cite as 280 Neb. 948

because the court did not read the immigration advise-
ment to Mena-rivera when it took his plea and he has shown
that he faces immigration consequences, we conclude that it
was error for the court not to allow Mena-rivera to withdraw
his plea.
meNA-riverA’s otHer C lAims
because we have determined that Mena-rivera is entitled to
withdraw his plea based on § 29-1819.02, we need not consider
his other assignments of error.18
CONCLUSION
Mena-rivera 	was 	entitled 	to 	withdraw 	his 	plea 	under
§ 29-1819.02. The court erred in concluding that the advise-
ment at the arraignment satisfied the statute and in requiring
Mena-rivera to establish prejudice to withdraw his plea. We
reverse, and remand with directions to the district court to
allow Mena-rivera to withdraw his plea.
reversed.
18 Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009).
H eAviCAN, C.J., dissenting.
I concur with the majority’s holding that Mena-rivera has
demonstrated that he faces an adverse immigration conse-
quence. I respectfully disagree with the decision that the dis-
trict court did not meet the requirements of Neb. rev. Stat.
§ 29-1819.02 (reissue 2008), however, because the district
court did read the advisement “prior to” accepting Mena-
rivera’s plea of guilty.
During the arraignment on December 17, 2008, the district
court advised Mena-rivera of the charges against him, his pos-
sible pleas, and his rights in relation to those pleas. During that
advisement, the district court stated:
I am required by state statute to advise you that if you are
not a citizen of the United States and you are convicted of
this charge, a conviction could result in either your depor-
tation from the United States or the denial of any applica-
tion which you may have pending to become a citizen of
the United States.
956 	280 NebrASkA repOrTS

Mena-rivera stated he understood that consequence and entered
a plea of not guilty. The advisement complied with the require-
ments of § 29-1819.02.
On February 11, 2009, less than 2 months later, Mena-
rivera changed his plea to guilty. The following colloquy
took place:
THe 	COUrT: 	My 	record 	shows 	to 	me 	that 	you
appeared before the Court on December 17th of last year.
At that time, I told you about your rights, the pleas that
were pending against you, the penalties in the event you
were convicted, and the rights — the rights, the pleas, the
charges, and penalties. You told me you understood all of
those things; is that correct?
[Mena-rivera]: Yes Your Honor.
THe COUrT: When you were here on December 17th,
you told me that you understood the rights that you had.
You also told me that you understood the pleas that you
could enter; is that correct?
[Mena-rivera]: Yes, Your Honor.
THe COUrT: Is there anything that I told you about
with respect to either your rights or the pleas that you
would like for me to tell you about again?
[Mena-rivera]: No, Your Honor.
THe COUrT: And you feel comfortable as you sit here
today that you understand those things; is that correct?
[Mena-rivera]: Yes, Your Honor.
Section 29-1819.02 requires that the district court read
the advisement “[p]rior to acceptance of a plea of guilty or
nolo contendere.” The district court gave the advisement to
Mena-rivera at his arraignment, and during the plea hear-
ing asked if Mena-rivera remembered his rights or had any
questions regarding those rights. We have previously held that
adverse immigration consequences are collateral to a guilty
plea and that trial courts are only obligated to advise defend-
ants of “direct” consequences.1 Therefore, while the district
court was statutorily obligated to read the advisement “prior
1 State v. Zarate, 264 Neb. 690, 695, 651 N.W.2d 215, 222 (2002).
STATe v. MeNA-rIverA 	957
Cite as 280 Neb. 948

to acceptance” of a plea of guilty or no contest, Mena-rivera’s
constitutional rights were not implicated. Given the facts of
this case, I believe the district court met the requirements of
the statute, and Mena-rivera should not be entitled to with-
draw his plea of guilty. I would therefore affirm the decision
of the district court denying Mena-rivera’s motion to withdraw
his guilty plea.
timotHy meyers , AppellANt, v. NebrAskA stAte
peNiteNtiAry of tHe NebrAskA depArtmeNt of
C orreCtioNAl serviCes , ANd C ommissioNer of
lAbor of tHe stAte of NebrAskA, Appellees.
791 N.W.2d 607
Filed December 17, 2010. 	No. S-10-267.
1. Employment Security: Judgments: Appeal and Error. In an appeal from the
Nebraska Appeal Tribunal to the district court regarding unemployment benefits,
the district court conducts the review de novo on the record, but on review by the
Court of Appeals or the Supreme Court, the judgment of the district court may be
reversed, vacated, or modified for errors appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, the inquiry is whether the decision conforms to law, is supported
by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Employment Security. Under Neb. rev. Stat. § 48-628(2) (Cum. Supp. 2008), an
individual shall be disqualified for unemployment benefits for misconduct related
to his work.
4. Employment Security: Words and Phrases. Misconduct related to work is
defined as behavior which evidences (1) wanton and willful disregard of the
employer’s interests, (2) deliberate violation of rules, (3) disregard of standards of
behavior which the employer can rightfully expect from the employee, or (4) neg-
ligence which manifests culpability, wrongful intent, evil design, or intentional
and substantial disregard of the employer’s interests or of the employee’s duties
and obligations.
5. Employment Security. An employee’s actions do not rise to the level of miscon-
duct if the individual is merely unable to perform the duties of the job.
Appeal from the District Court for Lancaster County: robert
r. otte, Judge. reversed and remanded with directions.
kevin ruser and patricia A. knapp, of University of Nebraska
Civil Clinical Law program, and Clint Cadwallader, kurt
958 	280 NebrASkA repOrTS