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State of Nebraska, appellee, v.
Yannick K. Yuma, appellant.
___ N.W.2d ___
Filed July 12, 2013. No. S-12-258.
1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional
questions that do not involve a factual dispute as a matter of law.
2. Criminal Law: Sentences: Judgments. In a criminal case, entry of judgment
occurs with the imposition of a sentence.
Appeal from the District Court for Lancaster County:
Stephanie F. Stacy, Judge. Reversed and remanded for further
proceedings.
Joshua W. Weir, of Dornan, Lustgarten & Troia, P.C., L.L.O.,
for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
Yannick K. Yuma pled no contest to two misdemeanors and
was sentenced to two concurrent 1-year terms of imprisonment. Because of credit for time served, he was released from
custody on the same day he was sentenced. He subsequently
moved to withdraw his guilty pleas, claiming his defense
attorney did not properly advise him of the immigration consequences of conviction at the time he entered his pleas. The
district court for Lancaster County concluded that it lacked
jurisdiction to consider Yuma’s motion, because he had completed his sentences and had been released from custody. Based
upon our recent decision in State v. Gonzalez,1 we reverse, and
remand for further proceedings.
BACKGROUND
Yuma was born in Zaire in 1985. He was granted asylum
and immigrated to the United States in 2001. In August 2009,
1
State v. Gonzalez, 285 Neb. 940,
830 N.W.2d 504 (2013).
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he was charged in the district court for Lancaster County with
one count of strangulation, a Class IV felony, and one count
of domestic assault in the first degree, a Class III felony. He
entered pleas of not guilty on both counts.
In March 2010, the State filed an amended information
pursuant to a plea agreement. It charged Yuma with one
count of attempted strangulation and one count of domestic
assault in the third degree, both Class I misdemeanors. Yuma
pled no contest to both counts. Before accepting the pleas,
the judge advised Yuma that “conviction of the offenses for
which you have been charged may have the consequence of
removal from the United States, or denial of naturalization
pursuant to the laws of the United States.” When asked if
he understood the advisement, Yuma replied in the affirmative. On April 7, Yuma was sentenced to imprisonment for 1
year on each count, with the sentences to be served concurrently. He was given credit for 247 days served. Because of
the credit, Yuma was released from custody the same day he
was sentenced.
In September 2011, Yuma filed a petition for writ of error
coram nobis. After an evidentiary hearing on his petition but
before any ruling, he obtained leave of court to amend and
filed a common-law motion to withdraw his pleas and vacate
his convictions. Relying upon Padilla v. Kentucky,2 he alleged
he was denied effective assistance of counsel at the time of his
pleas, because his lawyer never asked about his “ itizenship/
c
immigration status” or “inform[ed] him of the deportation
consequences of his . . . plea,” despite the fact that “deportation is presumptively mandatory” for noncitizens convicted of
domestic assault. Yuma alleged that he was currently facing
deportation as a result of his convictions and that his counsel’s
ineffective assistance constituted a “‘[m]anifest injustice,’”
which entitled him to the relief he sought.
After conducting a second evidentiary hearing, the district
court found that because Yuma was released from custody
before seeking to withdraw his pleas, it was necessary to
2
Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473,
176 L. Ed. 2d 284
(2010).
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246 286 NEBRASKA REPORTS
consider the jurisdictional issue of “whether a common-law
Motion to Withdraw Plea is available to a defendant whose
sentence has been completed.” The court examined our cases
addressing the various means of collaterally attacking a pleabased conviction on the ground that the defendant was not
informed or aware of immigration consequences and noted
that we had not squarely addressed the jurisdictional issue presented in this case. The court concluded:
While it is possible that, once the issue is squarely before
it, the Nebraska Supreme Court may conclude that having served one’s sentence is a distinction which should
not make a difference in the context of a common-law
Motion to Withdraw Plea, that sort of evolution in the law
is properly left to the appellate courts.
The court therefore denied the motion for the reason that it
lacked jurisdiction. Yuma perfected this timely appeal.
ASSIGNMENT OF ERROR
Yuma contends, restated, that the district court erred in concluding that it lacked jurisdiction to consider his common-law
motion to withdraw his pleas and vacate his convictions.
STANDARD OF REVIEW
[1] An appellate court determines jurisdictional questions
that do not involve a factual dispute as a matter of law.3
ANALYSIS
As we recently noted in Gonzalez,4 a defendant seeking
to withdraw a plea of guilty or nolo contendere after his or
her conviction has become final has two potential statutory
remedies. The first is Neb. Rev. Stat. § 29-1819.02 (Reissue
2008), which allows a defendant to move to withdraw a plea
and vacate a conviction when the statutorily required advisement has not been given and an immigration consequence
results from the conviction. The second is the Nebraska
3
State v. Gonzalez, supra note 1; Sutton v. Killham,
285 Neb. 1,
825 N.W.2d
188 (2013).
4
State v. Gonzalez, supra note 1.
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Postconviction Act,5 under which a “prisoner in custody under
sentence”6 may seek to have a conviction vacated on the
ground that it was obtained in violation of the prisoner’s constitutional rights.7 A motion for postconviction relief must be
filed within 1 year of the triggering event.8
In Gonzalez, we also reaffirmed the existence of a third
means of withdrawing a plea after a conviction has become
final, and we clarified its scope and parameters. We held:
[T]here is a Nebraska common-law procedure under
which a defendant may move to withdraw a plea after
his or her conviction has become final. This procedure
is available only when (1) the [Nebraska Postconviction]
Act is not, and never was, available as a means of asserting the ground or grounds justifying withdrawing the
plea and (2) a constitutional right is at issue. In sum,
this common-law procedure exists to safeguard a defend
ant’s rights in the very rare circumstance where due
process principles require a forum for the vindication of
a constitutional right and no other forum is provided by
Nebraska law.9
In this case, Yuma was given the advisement required by
§ 29-1819.02. He has not sought to withdraw his plea pursuant to that statute, and has no grounds to do so. Nor has Yuma
sought relief under the Nebraska Postconviction Act. Instead,
he relies solely upon the common-law procedure. To decide
whether he is entitled to utilize that procedure, we must first
determine whether relief under the Nebraska Postconviction
Act is, or ever was, available to him.
We conclude that the Nebraska Postconviction Act is not,
and never was, available to Yuma. He was sentenced on April
7, 2010, but was immediately released from custody because
5
Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2008 & Cum. Supp.
2012).
6
§ 29-3001(1).
7
§ 29-3001. See, State v. Sims, 277 Neb. 192,
761 N.W.2d 527 (2009); State
v. Jim, 275 Neb. 481,
747 N.W.2d 410 (2008).
8
§ 29-3001(4).
9
State v. Gonzalez, supra note 1,
285 Neb. at 949-50,
830 N.W.2d at 511.
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of his credit for time served. Because Yuma was never a “prisoner in custody under sentence,” he never could have sought
relief under the act.10
The remaining question is whether there is a constitutional
right at issue. Yuma, relying on Padilla,11 asserts his Sixth
Amendment constitutional right to counsel is at issue. The U.S.
Supreme Court has recognized that “‘the right to counsel is the
right to the effective assistance of counsel.’”12 In Padilla, the
Court stated:
It is our responsibility under the Constitution to ensure
that no criminal defendant—whether a citizen or not—is
left to the “mercies of incompetent counsel.” . . . To satisfy this responsibility, we now hold that counsel must
inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents,
the seriousness of deportation as a consequence of a
criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand
no less.13
The Court concluded Padilla’s allegation that his trial counsel failed to advise him that his guilty plea could lead to
deportation was sufficient to state a claim of “constitutional
deficiency.”14 Yuma’s claim is similarly sufficient—if the holding in Padilla applies to this case.
In Chaidez v. U.S.,15 the U.S. Supreme Court held that
because Padilla announced a new rule within the meaning of
Teague v. Lane,16 those defendants whose convictions became
10
See § 29-3001(1).
11
Padilla v. Kentucky, supra note 2.
12
Strickland v. Washington, 466 U.S. 668, 686,
104 S. Ct. 2052,
80 L. Ed. 2d
674 (1984) (quoting McMann v. Richardson,
397 U.S. 759,
90 S. Ct. 1441,
25 L. Ed. 2d 763 (1970)).
13
Padilla v. Kentucky, supra note 2,
130 S. Ct. at 1486 (quoting McMann v.
Richardson, supra note 12).
14
Id.,130 S. Ct. at 1483.
15
Chaidez v. U.S., ___ U.S. ___, 133 S. Ct. 1103,
185 L. Ed. 2d 149 (2013).
16
Teague v. Lane, 489 U.S. 288,
109 S. Ct. 1060,
103 L. Ed. 2d 334 (1989).
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final prior to Padilla could not benefit from its holding. But in
Griffith v. Kentucky,17 the Court held that “a new rule for the
conduct of criminal prosecutions is to be applied retroactively
to all cases, state or federal, pending on direct review or not yet
final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Pursuant to Griffith, we
applied newly announced constitutional rules to cases pending
on direct appeal in State v. Mata18 and State v. Gales.19 Both
of those cases were pending on direct appeal when the Court
announced a new rule in Ring v. Arizona.20
[2] We conclude that the holding of Padilla is applicable
to Yuma. Yuma entered his pleas on March 9, 2010, before
Padilla was decided, but he was not sentenced until April 7,
2010, approximately 1 week after the Padilla decision. In a
criminal case, entry of judgment occurs with the imposition
of a sentence.21 Thus, although Yuma’s case was not pending
on appeal when Padilla was decided, his convictions were
not final at the time, and therefore, the new rule announced in
Padilla applies to him.
In sum, the district court has jurisdiction to decide Yuma’s
common-law motion to withdraw his pleas, because the statutory remedy under § 29-1819.02 does not apply and the
motion asserts a constitutional issue which was not, and never
could have been, addressed under the Nebraska Postconviction
Act. The fact that Yuma has served his sentences is not relevant to the jurisdictional analysis. On remand, the district
court must determine whether Yuma’s motion to withdraw is
timely and whether he has established by clear and convincing
evidence that withdrawal of his pleas is necessary to correct a
manifest injustice.
17
Griffith v. Kentucky, 479 U.S. 314, 328,
107 S. Ct. 708,
93 L. Ed. 2d 649
(1987).
18
State v. Mata, 266 Neb. 668,
668 N.W.2d 448 (2003), abrogated on other
grounds, State v. Rogers, 277 Neb. 37,
760 N.W.2d 35 (2009).
19
State v. Gales, 265 Neb. 598,
658 N.W.2d 604 (2003).
20
Ring v. Arizona, 536 U.S. 584,
122 S. Ct. 2428,
153 L. Ed. 2d 556 (2002).
21
State v. Lamb, 280 Neb. 738,
789 N.W.2d 918 (2010).
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CONCLUSION
For the reasons discussed, we reverse the judgment of the
district court and remand the cause for further proceedings.
R eversed and remanded for
further proceedings.
In re I nterest of
Justine J. et al.,
children under 18 years of age.
State of Nebraska, appellee, v.
Shawna R., appellant.
___ N.W.2d ___
Filed July 12, 2013. No. S-12-1134.
1. Juvenile Courts: Judgments: Appeal and Error. Cases arising under the
Nebraska Juvenile Code are reviewed de novo on the record, and an appellate
court is required to reach a conclusion independent of the trial court’s findings.
However, when the evidence is in conflict, the appellate court will consider and
give weight to the fact that the lower court observed the witnesses and accepted
one version of the facts over the other.
2. Juvenile Courts: Jurisdiction. To obtain jurisdiction over a juvenile at the
adjudication stage, the court’s only concern is whether the conditions in which
the juvenile presently finds himself or herself fit within the asserted subsection of
Neb. Rev. Stat. § 43-247 (Reissue 2008).
3. Juvenile Courts: Jurisdiction: Parental Rights.
Neb. Rev. Stat. § 43-247(3)(a)
(Reissue 2008) outlines the basis for the juvenile court’s jurisdiction and grants
exclusive jurisdiction over any juvenile who lacks proper parental care by reason
of the fault or habits of his or her parent, guardian, or custodian.
4. Parental Rights. The purpose of the adjudication phase is to protect the interests
of the child.
5. Juvenile Courts: Jurisdiction: Proof. The Nebraska Juvenile Code does not
require the separate juvenile court to wait until disaster has befallen a minor child
before the court may acquire jurisdiction. While the State need not prove that
the child has actually suffered physical harm, Nebraska case law is clear that at
a minimum, the State must establish that without intervention, there is a definite
risk of future harm.
6. Parental Rights: Proof. The State must prove the allegations in a petition for
adjudication filed under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) by a preponderance of the evidence.
Appeal from the Separate Juvenile Court of Douglas County:
Elizabeth Crnkovich, Judge. Affirmed in part, and in part
reversed and remanded with directions.
