State v. Sandoval

754 	288 NEBRASKA REPORTS
did not err in determining that the date of injury was February
11, 2009, as that was the date on which Potter first missed
work due to her pain, even though she had previously sought
medical treatment.
CONCLUSION
For the foregoing reasons, the decision of the compensa-
tion court is affirmed.
A ffirmed.
H eAvicAn, C.J., not participating.
StAte of nebrASkA, Appellee, v.
JoSe luiS SAndovAl, AppellAnt.
851 N.W.2d 656
Filed August 8, 2014. 	No. S-11-872.
1. Judgments: Appeal and Error. When issues on appeal present questions of law,
an appellate court has an obligation to reach an independent conclusion irrespec-
tive of the decision of the court below.
2. Judgments: Constitutional Law: Legislature: Appeal and Error. The com-
mon-law writ of error coram nobis exists in this state under Neb. Rev. Stat.
§ 49-101 (Reissue 2010), which adopts English common law to the extent that it
is not inconsistent with the Constitution of the United States, the organic law of
this state, or any law passed by our Legislature.
3. Judgments: Evidence: Appeal and Error. The purpose of the writ of error
coram nobis is to bring before the court rendering judgment matters of fact
which, if known at the time the judgment was rendered, would have prevented
its rendition.
4. ____: ____: ____. The writ of error coram nobis reaches only matters of fact
unknown to the applicant at the time of judgment, not discoverable through rea-
sonable diligence, and which are of a nature that, if known by the court, would
have prevented entry of judgment.
5. Judgments: Appeal and Error. The writ of error coram nobis is not available to
correct errors of law.
6. Judgments: Pleas: Convictions: Proof. The failure of a district court to give
the advisement required by Neb. Rev. Stat. § 29-1819.02(1) (Reissue 2008) does
not prevent acceptance of a plea and entry of a judgment of conviction. Rather,
it provides a basis for the defendant to subsequently move to vacate the judg-
ment and withdraw the plea upon a showing that the advisement was not given
and the defendant faces an immigration consequence as a result of the plea and
subsequent conviction.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:35 AM CST

STATE v. SANDOVAL 	755
Cite as 288 Neb. 754
7. Judgments: Pleas: Convictions. A writ of error coram nobis cannot be utilized
to set aside a plea-based conviction on the ground that the court failed to properly
advise the defendant of the immigration consequences of the plea.
Appeal from the District Court for Dakota County: pAul J.
vAugHAn, Judge. Affirmed.
Joshua W. Weir, of Dornan, Lustgarten & Troia, P.C., L.L.O.,
for appellant.
Jon Bruning, Attorney General, and J. Kirk Brown for
appellee.
WrigHt, connolly, StepHAn, mccormAck, miller-lermAn,
and cASSel, JJ.
StepHAn, J.
The issue presented in this appeal is whether the failure of
the court to advise a defendant of the immigration consequences
of a plea of guilty or nolo contendere prior to acceptance of the
plea can serve as the basis for a writ of error coram nobis. We
conclude that it cannot and, therefore, affirm the judgment of
the district court for Dakota County denying the writ.
BACKGROUND
On October 28, 2003, Jose Luis Sandoval was charged in
Dakota County District Court with possession of methamphet-
amine. He pled not guilty. In January 2004, Sandoval changed
his plea to guilty as part of a plea agreement with the State.
The record of the plea hearing reflects that the district court
did not advise Sandoval of the immigration consequences of
his guilty plea, even though such an advisement is required by
Neb. Rev. Stat. § 29-1819.02(1) (Reissue 2008).
After Sandoval had served the sentence for his offense,
he filed a “Petition for Writ of Error Coram Nobis” seek-
ing an order “vacating the judgment and allowing [him] to
withdraw his previously entered plea of guilty and allow him
to enter a plea of not guilty.” The petition stated that it was
“filed pursuant to the common law writ of error coram nobis
which exists in this state pursuant to Neb. Rev. Stat. § 49-101
[Reissue 2010].” It also referenced § 29-1819.02(2), which

756 	288 NEBRASKA REPORTS
permits a defendant to withdraw a guilty plea if he or she
is not advised of the immigration consequences required by
§ 29-1819.02(1) and the defendant faces such immigration
consequences. The petition asserted that neither the district
court nor defense counsel advised Sandoval of the immigra-
tion consequences of his guilty plea and argued he should be
allowed to withdraw his guilty plea based on the violation of
§ 29-1819.02, because he received ineffective assistance of
counsel, and because his plea was not entered freely, intel-
ligently, and voluntarily.
The district court denied relief. It concluded that Sandoval’s
claims were not based upon an error of fact that could be
addressed via a petition for writ of error coram nobis. Sandoval
timely appealed. We overruled the State’s motion for summary
affirmance but ordered supplemental briefing.
ASSIGNMENT OF ERROR
Sandoval assigns, restated, that a writ of error coram nobis
should be issued, allowing him to withdraw his guilty plea,
because the district court failed to advise him of the immigra-
tion consequences of his guilty plea prior to accepting it.
STANDARD OF REVIEW
[1] When issues on appeal present questions of law, an
appellate court has an obligation to reach an independent con-
clusion irrespective of the decision of the court below.1
ANALYSIS
Sandoval alleged in his operative petition that the court
failed to give him the advisement required by § 29-1819.02(1)
but that he was precluded by our holding in State v. Rodriguez-
Torres2 from asserting a right to withdraw his plea pursuant to
§ 29-1819.02(2) because he had served his sentence. He then
alleged that the district court had “common law jurisdiction to
vacate [his] conviction” through a writ of error coram nobis.
1 State v. Landera, 285 Neb. 243, 826 N.W.2d 570 (2013); State v. Torres,
283 Neb. 142, 812 N.W.2d 213 (2012), cert. denied ___ U.S. ___, 133 S.
Ct. 244, 184 L. Ed. 2d 129.
2 State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008).

STATE v. SANDOVAL 	757
Cite as 288 Neb. 754
Thus, the narrow issue presented to the district court was
whether this common-law remedy could be utilized to afford
relief for Sandoval’s claims. The district court determined that
“a writ [of] error coram nobis [was] not an appropriate rem-
edy.” Our analysis is limited to whether this was error.
[2-5] The common-law writ of error coram nobis exists in
this state under Neb. Rev. Stat. § 49-101 (Reissue 2010), which
adopts English common law to the extent that it is not incon-
sistent with the Constitution of the United States, the organic
law of this state, or any law passed by our Legislature.3 The
purpose of the writ of error coram nobis is to bring before the
court rendering judgment matters of fact which, if known at
the time the judgment was rendered, would have prevented its
rendition.4 The writ reaches only matters of fact unknown to
the applicant at the time of judgment, not discoverable through
reasonable diligence, and which are of a nature that, if known
by the court, would have prevented entry of judgment.5 The
writ is not available to correct errors of law.6
In this appeal, Sandoval argues that a writ of error coram
nobis should issue, allowing him to withdraw his guilty plea,
because the district court failed to advise him of the immigra-
tion consequences of his plea prior to accepting it. He con-
tends the district court’s failure to give the advisement vio-
lated both the statutory right encompassed in § 29-1819.02(2)
and his right to due process of law. We conclude that nei-
ther of these claims supports the issuance of a writ of error
coram nobis.
In State v. Diaz,7 we held a writ of error coram nobis was
not an appropriate method for a defendant to challenge a
plea-based conviction on the basis that he received ineffective
assistance of counsel when his counsel failed to advise him of
the immigration consequences of a guilty plea and subsequent
3 State v. Diaz, 283 Neb. 414, 808 N.W.2d 891 (2012).
4 Id.
5 Id.
6 Id.
7 Id.

758 	288 NEBRASKA REPORTS
conviction. We reasoned that an ineffective assistance of coun-
sel claim presents a mixed question of fact and law and that
because the claim rested in part on questions of law, it could
not be resolved via a writ of error coram nobis. We also rea-
soned that a writ of error coram nobis was inappropriate for
the additional reason that, whether the defendant had been
advised of the immigration consequences of his plea or not,
the district court was not prevented from rendering judgment
against him.
[6] Sandoval’s claim that he is entitled to coram nobis
relief, based upon the failure of the court to give an immigra-
tion consequences advisement before accepting his plea, is
likewise without merit. As in Diaz, whether the court gave
Sandoval the immigration consequences advisement or not, it
was not prevented from rendering judgment against him. The
failure of a district court to give the advisement required by
§ 29-1819.02(1) does not prevent acceptance of a plea and
entry of a judgment of conviction. Rather, it provides a basis
for the defendant to subsequently move to vacate the judgment
and withdraw the plea upon a showing that the advisement was
not given and the defendant faces an immigration consequence
as a result of the plea and subsequent conviction.8 Unless and
until the defendant successfully exercises that right, the judg-
ment of conviction remains in full force.
Sandoval’s claim based on due process fails for the same
reason. In State v. Wilson,9 a convicted defendant who had
completed his sentence and was facing deportation sought
a writ of error coram nobis, contending that he was denied
due process of law by the court’s failure to advise him of the
immigration consequences of his nolo contendere plea. Noting
that the writ was intended to “remedy errors of fact, not errors
of law,” we reasoned that because “any alleged failure of the
District Court to properly inform the appellant of his con-
stitutional rights would clearly be an error of law, a writ of
8 See, § 29-1819.02(2); State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d
613 (2010); State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).
9 State v. Wilson, 194 Neb. 587, 234 N.W.2d 208 (1975).

STATE v. SANDOVAL 	759
Cite as 288 Neb. 754
error coram nobis is not the appropriate remedy.”10 Moreover,
the substance of Sandoval’s due process claim depends upon
retroactive application of the rule announced by the U.S.
Supreme Court in Padilla v. Kentucky,11 and the Court held in
Chaidez v. U.S.12 that the rule announced in Padilla does not
so apply.
[7] For the sake of completeness, we note that Sandoval
pursued the common-law coram nobis remedy at least in part
based on an understanding that he was precluded from exercis-
ing the remedy under § 29-1819.02(2) by the fact that he had
completed his sentence. His understanding was based upon
a reading of State v. Rodriguez-Torres,13 which we recently
held in State v. Rodriguez14 was incorrect. Because Sandoval
sought relief in this action solely in the form of a writ of
error coram nobis, we do not comment upon whether he has
grounds for relief under § 29-1819.02(2) in light of our hold-
ing in Rodriguez.15 Rather, limiting our review to the issue
presented to and decided by the district court, we hold that a
writ of error coram nobis cannot be utilized to set aside a plea-
based conviction on the ground that the court failed to prop-
erly advise the defendant of the immigration consequences of
the plea.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
A ffirmed.
H eAvicAn, C.J. not participating.
10 Id. at 589, 234 N.W.2d at 210.
11 Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284
(2010).
12 Chaidez v. U.S., ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013).
13 State v. Rodriguez-Torres, supra note 2.
14 State v. Rodriguez, ante p. 714, 850 N.W.2d 788 (2014).
15 Id.