State v. Yos-Chiguil

revocation set forth in § 60-4,108 to begin when Fuller is
released from imprisonment or placed on parole. The judgment
of the district court is affirmed.
A ffirmed.
StAte of NebrASkA, Appellee , v.
mAuro YoS-C higuil , AppellANt.
772 N.W.2d 574
Filed October 2, 2009. 	No. S-08-1329.
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.
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. ____: ____. If the court from which an appeal was taken lacked jurisdiction, the
appellate court acquires no jurisdiction.
5. Criminal Law: Sentences: Judgments. In a criminal case, the judgment is
the sentence.
6. Criminal Law: Pleas: Time: Proof. As a general rule, a defendant seeking to
withdraw a plea of guilty or no contest after he or she has been sentenced bears
the burden of showing by clear and convincing evidence that such withdrawal is
necessary to correct a manifest injustice. But as to such pleas entered after July
20, 2002, Neb. Rev. Stat. § 29-1819.02(2) (Reissue 2008) establishes a statutory
procedure whereby a convicted person may file a motion to have the criminal
judgment vacated and the plea withdrawn when the advisement required by
§ 29-1819.02(1) was not given and the conviction “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.”
7. Criminal Law: Pleas. Failure to give all or part of the advisement required
by Neb. Rev. Stat. § 29-1819.02(1) (Reissue 2008) 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a convicted defendant to have the conviction vacated and the plea withdrawn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). The defendant must also allege and show that he
or she actually faces an immigration consequence which was not included in the
advisement given.
Appeal from the District Court for Buffalo County: JohN p.
iCeNogle, Judge. Affirmed.
STATe v. yOS-ChIgUIl 	591
Cite as 278 Neb. 591
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

Mauroy os-Chiguil, pro se.
Jon Bruning, Attorneyg eneral, and Stacy M. Foust for
appellee.
heAviCAN, 	C.J., 	Wright, 	C oNNollY, 	gerrArd, 	StephAN,
mCC ormACk , and miller-lermAN, JJ.
StephAN, J.
Mauroy os-Chiguil sought to vacate his conviction for
attempted second degree murder on the ground that the dis-
trict court for Buffalo County failed to fully advise him of
the immigration consequences of conviction prior to accept-
ing his plea of no contest.1 The district court denied the relief
requested, andy os-Chiguil appealed. We affirm the order of
the district court.
BACKgROUND
Pursuant to a plea agreement, on March 12, 2008,y os-
Chiguil entered no contest pleas to one count of attempted
second degree murder and one count of second degree assault.
Before he did so, the court advised him of various conse-
quences of his pleas, including the following: “If you are not
a citizen of the United States, and if you are convicted of a
crime, that conviction could adversely affect your ability to
remain or work in this country.”y os-Chiguil stated through an
interpreter that he understood this advisement. In exchange for
his pleas, the State dismissed two counts of use of a deadly
weapon to commit a felony, each Class III felonies, and agreed
to recommend concurrent sentences. The factual basis fory os-
Chiguil’s pleas was that on November 30, 2007, he stabbed his
girlfriend and her minor sister during a domestic dispute.
At the sentencing hearing on May 1, 2008, defense counsel
admitted thaty os-Chiguil was in the country illegally. Counsel
did not take issue with the advisement given toy os-Chiguil
prior to the acceptance of his pleas. The district court imposed
concurrent sentences of 18 to 28 years’ imprisonment on the
count of attempted second degree murder, with credit for time
1 See Neb. Rev. Stat. § 29-1819.02 (Reissue 2008).
592 	278N eBRASKAR ePORTS

served, and from 2 to 5 years’ imprisonment on the count of
second degree assault.y os-Chiguil filed a direct appeal, case
No. A-08-697, which was dismissed by the Nebraska Court of
Appeals on July 15. On August 27, the district court entered
judgment on the mandate.
On December 1, 2008,y os-Chiguil filed a motion seeking
to withdraw his plea of no contest to the count of attempted
second degree murder on the ground that he was not properly
advised of the immigration consequences of his no contest plea
as required by § 29-1819.02(1). The district court denied the
motion without conducting an evidentiary hearing, andy os-
Chiguil then perfected this appeal. We moved the appeal to
our docket pursuant to our statutory authority to regulate the
caseloads of the appellate courts of this state.2 The appeal was
submitted without oral argument.3
ASSIgNMeNTOFeRROR
yos-Chiguil assigns that the district court erred in denying
his motion to withdraw his plea because the court failed to
comply with the “immigration consequences” warning provi-
sion of § 29-1819.02 prior to entry of his plea.
STANDARD OF ReVIeW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law.4
[2] 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.5
ANAlySIS
In State v. Zarate,6 we held that because the possibility of
deportation was a collateral consequence of a guilty plea, the
2 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
3 Neb. Ct. R. App. P. § 2-111(e)(5)(a) (rev. 2008).
4 State v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (2009).
5 State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008).
6 State v. Zarate, 264 Neb. 690, 651 N.W.2d 215 (2002).
STATe v. yOS-ChIgUIl 	593
Cite as 278 Neb. 591

fact that defense counsel did not inform a defendant of the pos-
sibility of deportation did not render a guilty plea involuntary
or unintelligent for constitutional purposes. We noted, however,
that our decision was likely one of last impression due to the
fact that in 2002, well after the acceptance of the plea at issue
in Zarate, the Nebraskal egislature had enacted a law requiring
trial courts, prior to accepting a guilty or nolo contendere plea,
to advise criminal defendants of certain immigration conse-
quences of such plea.
yos-Chiguil seeks to set aside his plea-based conviction
under the statute enacted in 2002, which currently provides:
Prior to acceptance of a plea of guilty or nolo contendere
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:
IFy OU ARe NOT A UNITeD STATeS CITIZeN,
yOU ARehe ReBy ADVISeD ThAT CONVICTION
OF The OFFeNSe FOR WhIChy OUh AVe BeeN
ChARgeD MAyh AVe The CONSeQUeNCeS OF
ReMOVAl FROM The UNITeD STATeS, OR DeNIAl
OF NATURAlIZATION PURSUANT TO Thel AWS
OF The UNITeD STATeS.7
yos-Chiguil alleges that the advisement given to him by the
district court did not “strictly or substantially” comply with this
statutory directive.
SubJeCt mAtter JuriSdiCtioN
[3,4] 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.8 If the court from
which an appeal was taken lacked jurisdiction, the appel-
late court acquires no jurisdiction.9 The State argues that
neither the district court nor this court has subject matter
7 § 29-1819.02(1).
8 State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009); State v.
Rodriguez-Torres, supra note 5.
9 State v. Sklenar, 269 Neb. 98, 690 N.W.2d 631 (2005).
594 	278N eBRASKAR ePORTS

jurisdiction, because we held in State v. Rodriguez-Torres10
that § 29-1819.02 does not provide a procedure for setting
aside a plea after a conviction based upon such plea has
become final.
The 	State’s 	argument 	both 	overstates 	our 	holding 	in
Rodriguez-Torres and overlooks a critical difference between
it and this case. In Rodriguez-Torres, the plea-based convic-
tion which the defendant sought to vacate was entered in
1997, long before the enactment of § 29-1819.02.11 The sole
basis alleged by the defendant for withdrawal of the plea was
§ 29-1819.02(3), which provides:
With respect to pleas accepted prior to July 20, 2002, it
is not the intent of thel egislature that a court’s failure
to provide the advisement required by subsection (1) of
this section should require the vacation of judgment 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.
We held in Rodriguez-Torres that this language did not create
a statutory procedure pursuant to which a plea entered before
July 20, 2002, could be withdrawn after the person convicted
of the crime had already served his sentence. Because the
issue was not presented to us, we did not address whether a
common-law remedy existed for withdrawal of the plea in
that circumstance.
[5,6] The plea in the instant case was entered in 2008 and
was therefore subject to § 29-1819.02(2), which provides in
relevant part:
If, on or after July 20, 2002, the court fails to advise the
defendant as required by this section and the defendant
shows that conviction of the offense to which the defend-
ant pleaded guilty or nolo contendere may have the con-
sequences for the defendant of removal from the United
States, or denial of naturalization pursuant to the laws of
10 State v. Rodriguez-Torres, supra note 5.
11 See 2002 Neb.l aws,l .B. 82, § 13.
STATe v. yOS-ChIgUIl 	595
Cite as 278 Neb. 591

the United States, the court, on the defendant’s motion,
shall vacate the judgment and permit the defendant to
withdraw the plea of guilty or nolo contendere and enter
a plea of not guilty.
In a criminal case, the judgment is the sentence.12 As a gen-
eral rule, a defendant seeking to withdraw a plea of guilty or
no contest after he or she has been sentenced bears the bur-
den of showing by clear and convincing evidence that such
withdrawal is necessary to correct a manifest injustice.13 But
as to such pleas entered after July 20, 2002, § 29-1819.02(2)
establishes a statutory procedure whereby a convicted per-
son may file a motion to have the criminal judgment vacated
and the plea withdrawn when the advisement required by
§ 29-1819.02(1) was not given and the conviction “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 State argues that this procedure is not available toy os-
Chiguil, because his judgment became final when his direct
appeal was dismissed in July 2008, prior to the filing of his
motion to vacate the judgment. In effect, the State contends
that the procedure conferred by § 29-1819.02(2) may be uti-
lized only on direct appeal. But there is no language in the
statute which would support such a limited construction, and
indeed, the language permitting the procedure to be initiated
by motion would suggest otherwise. Moreover, a defendant
who does not receive the statutorily required advisement of
the immigration consequences of a plea-based conviction may
not be aware of those consequences until after the conviction
becomes final and the consequences materialize. As more fully
set forth below, it is the failure to give the required advisement
and the occurrence of an immigration consequence of which
the defendant was not advised which trigger the statutory rem-
edy in § 29-1819.02(2).
In this case,y os-Chiguil was serving his sentence at the
time he filed his motion to withdraw his plea pursuant to
12 State v. Nelson, 276 Neb. 997, 759 N.W.2d 260 (2009).
13 See State v. Holtan, 216 Neb. 594, 344 N.W.2d 661 (1984).
596 	278N eBRASKAR ePORTS

§ 29-1819.02(2). We therefore need not decide whether the
remedy created by that subsection would extend to a defend-
ant who had completed his or her sentence. On the record
before us, we conclude that the district court had jurisdiction
to considery os-Chiguil’s motion to vacate his conviction, and
this court has appellate jurisdiction to determine whether the
district court erred in overruling the motion.
meritS
Section 29-1819.02(1) requires that before accepting a guilty
or nolo contendere plea, a trial court must advise the defend-
ant of two potential immigration consequences: “ReMOVAl
FROMT he UNITeD STATeS” and “DeNIAlOFNATU 	-
RAlIZATIONPURSUANTTOT 	he lAWSOFT he UNITeD
STATeS.” In his motion,y os-Chiguil alleged that the district
court advised him that conviction could adversely affect his
ability to remain or work in the United States, but failed to
warn him “of the distinctly different and separate consequence
that he would lose benefit of any opportunity to achieve
citizenship status by means of America’s constitutionally man-
dated naturalization process.” Althoughy os-Chiguil pled no
contest to two separate counts after being given this advise-
ment, he now seeks to vacate only his conviction for second
degree murder.h is argument is based solely upon the allegedly
incomplete advisement.
But, as noted above, § 29-1819.02(2) requires that in addition
to showing that the advisement required by § 29-1819.02(1)
was not given or was incomplete, a defendant seeking to vacate
a plea-based conviction must also show that such conviction
“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 Supreme Judicial Court
of Massachusetts has construed similar statutory language to
mean that “a defendant must demonstrate more than a hypo-
thetical risk of such a consequence, but that he actually faces
the prospect of it occurring.”14 Applying this principle, the
court held that a convicted defendant who faced deportation
14 Com. v. Berthold, 441 Mass. 183, 185, 804 N.e.2d 355, 357 (2004).
STATe v. yOS-ChIgUIl 	597
Cite as 278 Neb. 591

and was warned that deportation was a possible consequence
of his guilty plea was not entitled to withdraw the plea on the
ground that he was not also given a statutorily required warn-
ing that conviction could result in “‘exclusion from admission
to the United States.’”15 The court reasoned that although the
advisement given by the trial court did not cover all the immi-
gration consequences enumerated in the statute, it would not
construe the statute to impose the “extraordinary remedy” of
vacating the judgment of conviction “in circumstances where
the inadequacy complained of is immaterial to the harm for
which the remedy is sought.”16 The court concluded that “[a]
defendant who has been warned under the statute of the very
consequence with which he must subsequently contend is not
entitled to withdraw his plea, even if he was not warned of
other enumerated consequences that have not materialized.”17
In a subsequent application of this principle, a Massachusetts
appellate court held that a defendant was not entitled to have
his plea-based conviction vacated on the ground that he was
not given a statutory warning that his guilty plea could result in
denial of naturalization, where he made no claim that he faced
the prospect of denial of a request for naturalization.18
[7] We agree with the reasoning of the Massachusetts courts
and hold that failure to give all or part of the advisement
required by § 29-1819.02(1) regarding the immigration con-
sequences of a guilty or nolo contendere plea is not alone suf-
ficient to entitle a convicted defendant to have the conviction
vacated and the plea withdrawn pursuant to § 29-1819.02(2).
The defendant must also allege and show that he or she actu-
ally faces an immigration consequence which was not included
in the advisement given. In his motion to withdraw his plea,
yos-Chiguil alleged that the advisement given at the time of his
plea was incomplete in that it did not include denial of natu-
ralization as a possible consequence of his plea, but he did not
15 Id. at 184, 804 N.e.2d at 357, quoting Mass.g en.l aws Ann. ch. 278,
§ 29D (West 1998).
16 Id. at 186, 804 N.e.2d at 358.
17 Id.
18 Com. v. Cartagena, 71 Mass. App. 907, 883 N.e.2d 986 (2008).
598 	278N eBRASKAR ePORTS

allege that he faces the prospect of denial of an application for
naturalization based solely upon the conviction which he seeks
to vacate. Becausey os-Chiguil did not allege an essential fact
necessary to trigger the remedy provided by § 29-1819.02(2),
the district court did not err in denying the relief sought with-
out an evidentiary hearing.
Because we dispose of the appeal on this basis, we do not
reach the State’s arguments that “substantial compliance” with
the requirements of § 29-1819.02(1) is sufficient and that the
advisement which was given toy os-Chiguil substantially com-
plied with those requirements.19
CONClUSION
For the reasons discussed, the judgment of the district court
is affirmed.
A ffirmed.
19 Brief for appellee at 10.
STATe v. yOS-ChIgUIl 	599
Cite as 278 Neb. 591