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State of Nebraska v. Buoy P. Gach. NE Criminal Law, Immigration consequences
The defendant in this Nebraska case was charged with assault and use of a deadly weapon in connection with an incident when the defendant fired a gun into a group of people. After plea negotiations, the defendant pleaded guilty to one count of first degree assault, and the remaining charges were dismissed. Before accepting the plea, the trial judge advised the defendant that the sentence could be between one and 50 years, and that the defendant's immigration status could be affected, and that the defendant could be deported. The defendant answered that he understood. After accepting the plea, the trial court sentenced the defendant to 10-20 years.
Four years later, the defendant made a motion to set aside the conviction and withdraw his guilty plea. He claimed that he hadn't received the proper immigration advisement before making his plea. The state acknowledged that the trial judge had not used the exact language contained in Nebraska Revised Statutes 29-1819.02(1).
The trial court denied the petition, although it acknowledged that it did not use the exact words of the statute. The defendant appealed, and the Nebraska Supreme Court agreed to hear the case.
The high court first cited another case in which it held that the failure to give the advisement, by itself, was not enough to have a conviction vacated. The defendant also needs to show that he faces an immigration consequence of which he was not warned. The defendant bears the burden of proof.
The court did not address the issue of whether the exact language of the advisement needs to be used. But it did "take this opportunity to remind lawyers and judges that there is no excuse for failing to administer the statutory advisement to every defendant." But it affirmed the conviction because the defendant must show that he was facing an immigration consequence that was not included in the advisement he was given. In this case, the defendant was told that he could be "deported." On appeal, he argued that it was a "removal" rather than a "deportation" that he faced. The Supreme Court declined to determine whether there is a distinction between the two words, since in this case, the defendant did not raise this issue in the trial court.
For these reasons, the Supreme Court affirmed the lower court's order.
297 Neb. 96 (Neb. June 30, 2017).
Please see the original opinion for the court's exact language.
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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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