State v. Gonzalez

cases determined
in the
sUPreme cOUrt OF nebraska
()
State of NebraSka , appellee , v.
alma ramirez G oNzalez , appellaNt.
807 n.W.2d 759
Filed January 3, 202. 	no. s-0-097.
. 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.
2. Pleas: Sentences: Proof. With respect to withdrawal of a plea of guilty or no
contest made after sentencing, withdrawal is proper only where the defendant
makes a timely motion and establishes, by clear and convincing evidence, that
withdrawal is necessary to correct a manifest injustice.
3. Pleas: Sentences: Judgments. a motion for withdrawal of a plea of guilty or no
contest is timely if made with due diligence, considering the nature of the allega-
tions therein, and is not necessarily barred because it was made subsequent to
judgment or sentence.
4. Pleas: Proof. manifest injustice justifying withdrawal of a plea may be proved
if the defendant proves, by clear and convincing evidence, that () he or she was
denied the effective assistance of counsel guaranteed by constitution, statute, or
rule; (2) the plea was not entered or ratified by the defendant or a person autho-
rized to so act on his or her behalf; (3) the plea was involuntary, or was entered
without knowledge of the charge or that the sentence actually imposed could
be imposed; or (4) he or she did not receive the charge or sentence concessions
contemplated by the plea agreement and the prosecuting attorney failed to seek or
not to oppose those concessions as promised in the plea agreement.
5. ____: ____. a defendant seeking to withdraw a plea must plead and prove that
omissions constituting manifest injustice have resulted in prejudice.
6. Effectiveness of Counsel: Proof. to prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington, 466 U.s. 668, 04 s. ct. 2052, 80
L. ed. 2d 674 (984), the defendant must show that counsel’s performance
was deficient and that this deficient performance actually prejudiced his or her
defense.
7. Pleas: Effectiveness of Counsel: Proof. in the context of a plea of guilty or no
contest, to prevail on a claim of ineffective assistance of counsel, a defendant
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

must allege facts showing a reasonable probability that he or she would have
insisted on going to trial but for counsel’s errors.
8. Constitutional Law: Right to Counsel: Effectiveness of Counsel: Case
Overruled. advice regarding deportation is not categorically removed from the
ambit of the sixth amendment right to counsel, and Strickland v. Washington,
466 U.s. 668, 04 s. ct. 2052, 80 L. ed. 2d 674 (984), applies to such a claim,
abrogating State v. Zarate, 264 neb. 690, 65 n.W.2d 25 (2002).
9. Pleas: Attorney and Client. counsel must inform his or her client whether a
plea carries a risk of deportation.
0. Plea Bargains: Effectiveness of Counsel. to obtain relief on a claim of ineffec-
tive assistance of counsel based on failure to advise a client whether a plea carries
a risk of deportation, the defendant must convince the court that a decision to
reject the plea bargain would have been rational under the circumstances.
. Effectiveness of Counsel: Appeal and Error. a claim of ineffective assistance
of counsel presents a mixed question of law and fact. Whether counsel was
deficient and whether the defendant was prejudiced are questions of law that an
appellate court reviews independently of the lower court’s decision, but the appel-
late court reviews factual findings for clear error.
appeal from the district court for hall county: JameS D.
liviNGStoN, Judge. affirmed.
Joshua W. Weir, of dornan, Lustgarten & troia, P.c., L.L.O.,
for appellant.
Jon bruning, attorney General, and James d. smith for
appellee.
H eavicaN, c.J., coNNolly, G errarD, StepHaN, mccormack ,
and miller-lermaN, JJ.
G errarD, J.
alma 	ramirez 	Gonzalez 	was 	convicted 	of 	fraudulently
obtaining public assistance benefits, based upon a no contest
plea that she entered pursuant to a plea agreement. Over 2
years after her sentencing, she filed a motion to withdraw her
plea, alleging that she had received ineffective assistance of
counsel because her attorney had not explained that her plea
would result in automatic deportation. We conclude that pro-
cedurally, Gonzalez was permitted to move for withdrawal of
her plea. but we also conclude that she failed to prove by clear
and convincing evidence that withdrawal of her plea was nec-
essary to prevent a manifest injustice. therefore, we affirm the
district court’s decision to overrule her motion.
2 	283 nebraska rePOrts

backGrOUnd
Gonzalez was, at the time of this action, living in Grand
island, nebraska, with two of her three children. in december
2006, before criminal proceedings were brought against her,
Gonzalez was detained by the federal government for living in
the United states illegally. as a result, deportation proceedings
were brought against her. as of august 3, 200, the deporta-
tion proceedings were ongoing.
in 2007, Gonzalez was arrested for fraudulently obtaining
public assistance benefits in an amount greater than $500,
which is a class iV felony, punishable by up to 5 years’ impris-
onment or a $0,000 fine. Gonzalez was charged by informa-
tion on January 2, 2008. she was arraigned and pled not guilty.
before she entered her plea, she was advised of her rights by
the court, including the warning that conviction for the offense
charged against her could have the consequence of deportation
or denial of a naturalization request. Gonzalez said she under-
stood those rights.
On march 20, 2008, Gonzalez withdrew her initial plea of
not guilty and, pursuant to a plea agreement, pled no contest
to the charge. in exchange for Gonzalez’ plea of no contest,
the state agreed to recommend a term of probation at sen-
tencing. Gonzalez also agreed to pay restitution to the state
for the benefits illegally obtained, in the amount of $8,522.
the factual basis for the plea established that Gonzalez had
applied for and received public assistance, but had not reported
the fact that she was employed under an assumed name. her
failure to report her employment resulted in an overpayment
of benefits.
before accepting Gonzalez’ plea, the court again advised
her that conviction for the offense could result in her depor-
tation or a denial of her naturalization requests, and she said
she understood. the court convicted Gonzalez pursuant to
her plea and, on may 8, 2008, sentenced her to a term of 5
years’ probation.
 see, neb. rev. stat. § 68-07(2) (cum. supp. 200); neb. rev. stat.
§ 28-05 (reissue 2008).
state v. GOnzaLez 	3
cite as 283 neb. 

because Gonzalez pled no contest to fraudulently obtain-
ing public assistance benefits, she became ineligible to stay
in the United states. specifically, Gonzalez was ineligible for
a “cancellation of removal,” for which she had been eligible
because she had U.s. relatives and she had been living in the
United states for 0 years.2 her ineligibility for a cancellation
of removal was a direct result of her conviction for fraudulently
obtaining public assistance benefits.3
Gonzalez filed a “motion to Withdraw Plea and Vacate
Judgment” in the district court on July 4, 200, on the ground
that she had received ineffective assistance of counsel. an evi-
dentiary hearing was held. at the hearing, Gonzalez testified
that she had not discussed the immigration consequences of her
plea with her criminal trial counsel. Gonzalez testified that her
criminal trial counsel had known Gonzalez was not a U.s. citi-
zen, but Gonzalez had not informed her criminal trial counsel
of her ongoing immigration case.
Gonzalez said that if she had known beforehand that there
could be consequences with immigration that could result in
deportation, she “would have looked for another solution.” she
admitted, however, that although the immigration consequences
were very important to her before she entered her plea, she
never asked her attorney whether there might be a problem. she
also admitted that the court had informed her there could be
immigration consequences to her plea, but that the advisement
was said “very rapidly through the interpreter” and she “didn’t
understand much.” she said that the first time she learned about
the effect of the plea on her immigration status was about 5
months before the hearing on her motion to withdraw, when
she was told by a different attorney who represented her in the
immigration proceedings.
the district court denied Gonzalez’ motion. While the dis-
trict court accepted Gonzalez’ claim that her criminal trial
counsel’s performance was deficient, the court determined that
Gonzalez had failed to demonstrate prejudice resulting from
that deficient performance. the court explained that Gonzalez’
2 see 8 U.s.c. § 229b(b) (2006).
3 see, id.; 8 U.s.c. § 227(a)(2) (2006).
4 	283 nebraska rePOrts

assertion that she would have found a “‘different solution’”
did not satisfy Gonzalez’ burden of showing prejudice, because
whether a “different solution” was possible was not within
Gonzalez’ control. the court also noted that Gonzalez had two
different attorneys at the time of the plea—her criminal trial
counsel and her immigration attorney—and apparently did not
inquire of either one of them about the specific immigration
consequences of her plea, despite her awareness that such con-
sequences were possible. so, the court found that Gonzalez had
failed to prove prejudice and denied her motion to withdraw
her plea. Gonzalez appeals.
assiGnment OF errOr
Gonzalez assigns, as consolidated, that the district court
erred in denying her motion to withdraw her plea, because she
was denied effective assistance of counsel.
standard OF reVieW
[] 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 dis-
turbed on appeal.4
anaLysis
JuriSDictioN over motioN to WitHDraW plea
the state argues that we have no appellate jurisdiction. the
state claims that there is no procedure in nebraska law for
withdrawal of a guilty plea after judgment based on ineffec-
tive assistance of counsel. so, the state argues, the trial court
lacked jurisdiction over Gonzalez’ motion and we likewise lack
jurisdiction over her appeal.5
the premise of the state’s argument is incorrect; we do
have jurisdiction over this appeal. but in order to explain
the legal principles that govern our disposition of the merits
of this particular appeal, it will be helpful to review some of
our more recent case law regarding the procedural avenues
4 State v. Mena-Rivera, 280 neb. 948, 79 n.W.2d 63 (200).
5 see State v. Yos-Chiguil, 278 neb. 59, 772 n.W.2d 574 (2009).
state v. GOnzaLez 	5
cite as 283 neb. 

available to a defendant who claims that he or she was not
properly advised of the immigration consequences of a plea.
specifically, there are three such avenues generally available:
() a motion for postconviction relief under the nebraska
Postconviction act,6 (2) withdrawal of the plea pursuant to neb.
rev. stat. §§ 29-89.02 and 29-89.03 (reissue 2008), and
(3) a common-law motion to withdraw the plea. We agree with
the state that only the third avenue is at issue here.
to begin with, this is not a postconviction action. For reasons
that will become apparent below, it is at least possible that due
to the U.s. supreme court’s decision in Padilla v. Kentucky,7
a defendant in Gonzalez’ position could bring a postconviction
action based on allegations of ineffective assistance of counsel.
but Gonzalez has not brought such a claim—her motion nei-
ther cites nor relies upon the nebraska Postconviction act, and
perhaps most clearly, her motion was not verified, as a postcon-
viction motion is required to be.8
it is equally clear that §§ 29-89.02 and 29-89.03 pro-
vide no relief here, and Gonzalez does not contend otherwise.
section 29-89.02 requires a trial court, before accepting a
plea, to advise defendants that a conviction may have immigra-
tion consequences. and that section also establishes a statutory
procedure whereby a convicted person may file a motion to
have a criminal judgment vacated and a plea withdrawn when
the court did not give the required advisement and the defend-
ant faces an immigration consequence not included in the
advisement given.9
in this case, however, the statutory advisement was given.
so, §§ 29-89.02 and 29-89.03 are inapplicable. but that
does not foreclose a common-law remedy for withdrawal of a
plea. We held in State v. Rodriguez-Torres0 that § 29-89.02
6 see neb. rev. stat. § 29-300 et seq. (reissue 2008 & supp. 20).
7 Padilla v. Kentucky, 559 U.s. 356, 30 s. ct. 473, 76 L. ed. 2d 284
(200).
8 see, § 29-300; State v. Robinson, 25 neb. 449, 339 n.W.2d 76 (983).
9 see, Mena-Rivera, supra note 4; Yos-Chiguil, supra note 5.
0 see State v. Rodriguez-Torres, 275 neb. 363, 746 n.W.2d 686 (2008).
6 	283 nebraska rePOrts

did not create a statutory procedure pursuant to which a plea
entered before the statute was enacted could be withdrawn
after the person convicted of the crime had already served his
sentence. but we later clarified that Rodriguez-Torres did not
foreclose a common-law remedy for withdrawal of a plea.
[2,3] Gonzalez has pursued such a remedy here. and con-
trary to the state’s suggestion, it is well established that a
defendant may move to withdraw a plea, even after final
judgment. however, the grounds for such a withdrawal are
quite difficult for a defendant to prove—the bar is set high. if
a motion to withdraw a plea of guilty or no contest is made
before sentencing, a court, in its discretion, may allow a defend-
ant to withdraw his or her plea for any fair and just reason,
provided the prosecution would not be substantially prejudiced
by its reliance on the plea.2 but with respect to withdrawal of a
plea of guilty or no contest made after sentencing, withdrawal
is proper only where the defendant makes a timely motion and
establishes, by clear and convincing evidence, that withdrawal
is necessary to correct a manifest injustice.3 that standard
applies even where a motion to withdraw a plea has been made
after the sentencing court’s judgment has become final.4 a
motion for withdrawal is timely if made with due diligence,
considering the nature of the allegations therein, and is not
necessarily barred because it was made subsequent to judgment
or sentence.5
 see Yos-Chiguil, supra note 5.
2 see, State v. Minshall, 227 neb. 20, 46 n.W.2d 585 (987); State v.
Molina-Navarrete, 5 neb. app. 966, 739 n.W.2d 77 (2007).
3 see, Minshall, supra note 2; State v. Dixon, 223 neb. 36, 389 n.W.2d
307 (986), disapproved on other grounds, Minshall, supra note 2; State
v. Holtan, 26 neb. 594, 344 n.W.2d 66 (984); State v. Jipp, 24 neb.
577, 334 n.W.2d 805 (983); State v. Rouse, 206 neb. 37, 293 n.W.2d 83
(980); State v. Kluge, 98 neb. 5, 25 n.W.2d 737 (977), disapproved
on other grounds, Minshall, supra note 2; State v. Evans, 94 neb. 559,
234 n.W.2d 99 (975), disapproved on other grounds, Minshall, supra
note 2; State v. Lewis, 92 neb. 58, 222 n.W.2d 85 (974); Molina-
Navarrete, supra note 2.
4 see, Holtan, supra note 3; Kluge, supra note 3.
5 Evans, supra note 3.
state v. GOnzaLez 	7
cite as 283 neb. 

in short, while it is possible that Gonzalez could have
brought a motion for postconviction relief based on her allega-
tions, she is also permitted to move to withdraw her plea. the
trial court had jurisdiction to consider her motion, and we have
jurisdiction over her appeal. Whether Gonzalez has adduced the
clear and convincing evidence of manifest injustice necessary
to justify withdrawal, however, is another matter, and requires
us to consider the merits of her assignment of error.
maNifeSt iNJuStice aND iNeffective
aSSiStaNce of couNSel
as noted above, withdrawal of a plea is proper only where
the defendant makes a timely motion and establishes, by clear
and convincing evidence, that withdrawal is necessary to cor-
rect a manifest injustice.6 Gonzalez made her motion with due
diligence: it was filed shortly after the U.s. supreme court’s
decision in Padilla7 held that a claim for ineffective assistance
of counsel was available based upon the immigration conse-
quences of a plea.8
[4,5] We have explained that “manifest injustice” may be
proved if the defendant proves, by clear and convincing evi-
dence, that () he or she was denied the effective assistance
of counsel guaranteed by constitution, statute, or rule; (2) the
plea was not entered or ratified by the defendant or a person
authorized to so act on his or her behalf; (3) the plea was
involuntary, or was entered without knowledge of the charge or
that the sentence actually imposed could be imposed; or (4) he
or she did not receive the charge or sentence concessions con-
templated by the plea agreement and the prosecuting attorney
failed to seek or not to oppose those concessions as promised
in the plea agreement.9 and the defendant must plead and
prove that such omissions have resulted in prejudice.20
6 see cases cited supra note 3.
7 Padilla, supra note 7.
8 see Evans, supra note 3.
9 Holtan, supra note 3; Evans, supra note 3.
20 see Jipp, supra note 3.
8 	283 nebraska rePOrts

[6,7] Obviously, what is at issue here is whether Gonzalez
proved, by clear and convincing evidence, that ineffective assist-
ance of counsel has resulted in a manifest injustice. it is well
understood that to prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington,2 the defendant must
show that counsel’s performance was deficient and that this
deficient performance actually prejudiced his or her defense.22
and we recently reaffirmed that in the context of a plea of
guilty or no contest, a defendant must allege facts showing a
reasonable probability that he or she would have insisted on
going to trial but for counsel’s errors.23
[8] in 2002, we held in State v. Zarate24 that counsel’s failure
to inform the defendant of the immigration consequences of a
plea did not support a claim of ineffective assistance of counsel.
Obviously, the U.s. supreme court’s decision in Padilla abro-
gated our decision in Zarate.25 in Padilla, the court held that
advice regarding deportation was not categorically removed
from the ambit of the sixth amendment right to counsel and
that Strickland applied to such a claim.
[9,0] specifically, the court explained that when the law
regarding the possible deportation consequences of a plea is
not succinct and straightforward, a criminal defense attorney
need do no more than advise a noncitizen client that pend-
ing criminal charges may carry a risk of adverse immigration
consequences. but when the deportation consequence is truly
clear, the duty to give correct advice is equally clear. in sum,
the court concluded that counsel must inform his or her client
whether a plea carries a risk of deportation and that to obtain
relief on such a claim, the defendant must convince the court
2 Strickland v. Washington, 466 U.s. 668, 04 s. ct. 2052, 80 L. ed. 2d 674
(984).
22 State v. Sandoval, 280 neb. 309, 788 n.W.2d 72 (200), cert. denied 563
U.s. 02, 3 s. ct. 292, 79 L. ed. 2d 254 (20).
23 see State v. Yos-Chiguil, 28 neb. 68, 798 n.W.2d 832 (20). see, also,
Premo v. Moore, 562 U.s. 5, 3 s. ct. 733, 78 L. ed. 2d 649 (20);
Hill v. Lockhart, 474 U.s. 52, 06 s. ct. 366, 88 L. ed. 2d 203 (985).
24 State v. Zarate, 264 neb. 690, 65 n.W.2d 25 (2002).
25 see Padilla, supra note 7.
state v. GOnzaLez 	9
cite as 283 neb. 

that a decision to reject the plea bargain would have been ratio-
nal under the circumstances.26
We recognize that there is some significant dispute regard-
ing whether the court’s holding in Padilla is applicable on
collateral review of pleas that were entered before Padilla was
decided.27 We need not resolve that issue in this case, however,
because we conclude that even under Padilla, Gonzalez failed
to establish the clear and convincing evidence of manifest
injustice necessary to justify withdrawal of her plea.
[] although this case arises in the context of a motion to
withdraw a plea, in the context of postconviction relief, we
have stated that a claim of ineffective assistance of counsel
presents a mixed question of law and fact.28 Whether counsel
was deficient and whether the defendant was prejudiced are
questions of law that we review independently of the lower
court’s decision.29 but we review factual findings for clear
error.30 We see no reason to depart from that standard of review
in evaluating whether a defendant proved ineffective assistance
of counsel, although the court’s ultimate determination of
whether the defendant is permitted to withdraw his or her plea
is still reviewed for an abuse of discretion.
We agree with the district court’s conclusion that Gonzalez
did not prove prejudice here. the district court had well-
founded skepticism regarding Gonzalez’ testimony that the
immigration consequences of her plea were important to her,
yet she apparently never inquired about them to either of her
attorneys. she purportedly never did so despite having been
cautioned of possible deportation consequences by the court
more than once, and her acknowledgment even at the hearing
on her motion to withdraw her plea that she had been at least
aware of those advisements. she was aware of the general
26 see id.
27 see, e.g., Chaidez v. U.S., 655 F.3d 684 (7th cir. 20) (and cases cited
therein).
28 see Yos-Chiguil, supra note 23.
29 Id.
30 Id.
0 	283 nebraska rePOrts

possibility of immigration consequences, and her criminal trial
counsel could not have informed her of the specific effect of
her plea on her “cancellation of removal,” because Gonzalez
had not informed her counsel of the separate immigration
proceeding.
and most important, Gonzalez did not testify that the pos-
sibility of deportation would have led her to insist on going
to trial instead of pleading guilty.3 she simply said that she
would have “looked for another solution,” but presented no
evidence of what such a solution might have been or whether
such a solution would have been available to her. Under the
immigration and nationality act,32 cancellation of removal is
unavailable to any alien who has committed an “aggravated fel-
ony,”33 which includes an offense that “involves fraud or deceit
in which the loss to the victim or victims exceeds $0,000.”34
there appears to be no dispute that Gonzalez did what she was
accused of, or any question that her conduct fit that descrip-
tion, which means that there is nothing in this record to suggest
that her case could have been resolved in a way that would
avoid the immigration and nationality act. the argument in
Gonzalez’ appellate brief that the state might have been will-
ing to “craft a creative plea bargain”35 is nothing more than
speculation. and Gonzalez faced up to 5 years’ imprisonment,
so a recommendation of probation was not an unfavorable plea
agreement in the underlying proceeding.
simply put, Gonzalez presented no evidence that she would
have insisted on going to trial absent her counsel’s allegedly
deficient performance,36 and nothing in the record persuades
us that “a decision to reject the plea bargain would have been
rational under the circumstances.”37 We agree with the district
3 see id.
32 8 U.s.c. § 0 et seq. (2006).
33 see §§ 227(a)(2)(a)(iii) and 229b(b)()(c).
34 see § 0(a)(43)(m)(i).
35 brief for appellant at 24.
36 see, Premo, supra note 23; Hill, supra note 23.
37 see Padilla, supra note 7, 30 s. ct. at 485.
state v. GOnzaLez 	
cite as 283 neb. 

court that Gonzalez did not prove the prejudice prong of
Strickland.38 as a result, even if Padilla applies retroactively
to her plea, she did not prove ineffective assistance of counsel
and therefore did not prove the manifest injustice necessary to
justify withdrawing her plea. the district court did not abuse
its discretion in overruling Gonzalez’ motion, and we find no
merit to her assignment of error.
cOncLUsiOn
although we conclude that the district court had jurisdiction
to consider Gonzalez’ motion to withdraw her plea, despite the
fact that her conviction had become final, we find that she did
not prove ineffective assistance of counsel. the district court
did not abuse its discretion in overruling her motion. the dis-
trict court’s order is affirmed.
affirmeD.
WriGHt, J., not participating.
38 see Strickland, supra note 2.
Julie lovelace , appellee , v.
city of liNcolN, appellaNt.
809 n.W.2d 505
Filed January 3, 202. 	no. s-0-24.
. Workers’ Compensation. Under the odd-lot doctrine, total disability may be
found in the case of workers who, while not altogether incapacitated for work,
are so handicapped that they will not be employed regularly in any well-known
branch of the labor market. the essence of the test is the probable dependability
with which a claimant can sell his or her services in a competitive labor market,
undistorted by such factors as business booms, sympathy of a particular employer
or friends, temporary good luck, or the superhuman efforts of the claimant to rise
above his or her crippling handicaps.
2. Workers’ Compensation: Appeal and Error. in determining whether to affirm,
modify, reverse, or set aside a judgment of the Workers’ compensation court
review panel, a higher appellate court reviews the findings of the trial judge who
conducted the original hearing; the findings of fact of the trial judge will not be
disturbed on appeal unless clearly wrong.
3. ____: ____. With respect to questions of law in workers’ compensation cases, an
appellate court is obligated to make its own determination.
2 	283 nebraska rePOrts