Proposed Timing Requirements for the Common-law Motion to Withdraw a Plea: the Creation of a New Procedure in State v. Gonzalez, 285 Neb. 940, 830 N.w.2d 504 (2013)

Publication year2021

94 Nebraska L. Rev. 220. Proposed Timing Requirements for the Common-Law Motion to Withdraw a Plea: The Creation of a New Procedure in State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013)

Proposed Timing Requirements for the Common-Law Motion to Withdraw a Plea: The Creation of a New Procedure in State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013)



I. Introduction .......................................... 220

II. Background ........................................... 222

III. The Gonzalez Opinions ................................ 224

A. Gonzalez I ........................................ 224

B. Gonzalez II ........................................ 229

IV. Analysis .............................................. 232

A. Subsequent Common-Law Motions ................. 232

B. The Timeliness Inquiry ............................ 235

1. Time Limitations Under Neb. Rev. Stat. §29-1819.02........................................ 236

2. Timing Requirement of the Nebraska Postconviction Act ............................. 237

V. Conclusion ............................................ 243


In 2013, the Nebraska Supreme Court created a new procedure by which defendants can move to withdraw their guilty pleas after their conviction has become final-the common-law motion to withdraw a plea.(fn1) In State v. Gonzalez (Gonzalez II), Alma Gonzalez moved to


withdraw her no contest plea, alleging that she had received ineffective assistance of counsel because her attorney had not explained the immigration consequences of her conviction.(fn2) The court looked at the two existing methods by which Gonzalez could withdraw her plea and determined that neither applied.(fn3) The court then concluded that there was another method that might have been available to Gonza-lez-a common-law motion.(fn4) The court had alluded to the possibility of such a procedure in a previous case,(fn5) but never actually recognized a common-law motion to withdraw a plea as a valid procedure, nor had the court articulated the "scope and parameters" governing when defendants could bring such a motion.(fn6) In Gonzalez II, the court briefly articulated the scope and parameters of the common-law motion. The procedure "is available in extremely limited circum-stances."(fn7) It is only available in cases where "(1) the [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."(fn8)

Because the common-law motion was not available to Gonzalez, the court did not explain the details of the procedure.(fn9) Since Gonza-


lez, the court has only addressed the procedure four times(fn10) and has not yet clearly defined how long after conviction defendants may move to withdraw their plea using the common-law procedure. This Note will propose that Nebraska courts apply the timing requirements from the Nebraska Postconviction Act (the Act),(fn11) because the common-law procedure was created as an alternative for defendants who could not bring postconviction motions under the Act.(fn12) Part II will provide background on how defendants could withdraw their pleas in Nebraska prior to the creation of the common-law motion. Part III will discuss Gonzalez and the limitations the opinion placed on the common-law motion to withdraw a plea. Part IV will discuss cases involving common law motions to withdraw pleas since Gonzalez -none of which include a discussion on when a motion is considered timely- and will propose timing requirements that should guide when defendants can raise common law motions. Part V will conclude the Note.


Nebraska allows defendants to withdraw their guilty or no contest plea prior to sentencing.(fn13) Defendants may withdraw their pleas, at the court's discretion, "for any fair and just reason" if the prosecution has not and would not be "substantially prejudiced by its reliance on the plea."(fn14) Defendants may also move to withdraw their plea after sentencing, but before the judgment becomes final for purposes of a collateral attack.(fn15) Judges shall only allow defendants to withdraw their plea if the defendant proves that withdrawal is necessary to "correct a manifest injustice" and establishes the grounds for withdrawal by clear and convincing evidence.(fn16)

After a defendant has been sentenced, however, the primary method for withdrawing a plea is the Nebraska Postconviction Act.(fn17) A prisoner in custody may file a verified motion asking the court to vacate or set aside his or her sentence on the ground that the prisoner's rights were denied or infringed to an extent that would render


the judgment void.(fn18) A prisoner has one year to file his or her motion for postconviction relief.(fn19) The one-year period runs from one of four dates: (1) "[t]he date the judgment of conviction became final by the conclusion of a direct appeal or the expiration of the time for filing a direct appeal,"(fn20) (2) "[t]he date on which the factual predicate of the constitutional claim or claims alleged could have been discovered through the exercise of due diligence,"(fn21) (3) "the date on which an impediment created by state action, in violation of the Constitution of the United States or the Constitution of Nebraska or any law of the state, is removed, if the prisoner was prevented from filing a verified motion by such state action,"(fn22) or (4) "[t]he date on which a constitutional claim asserted was initially recognized by the Supreme Court of the United States or the Nebraska Supreme Court, if the newly recognized right has been made applicable retroactively to cases on post-conviction collateral review."(fn23) Additionally, a defendant cannot use a postconviction motion to secure review of issues of which the defendant knew about and could have litigated at the time of his or her direct appeal.(fn24)

Sections 29-1819.02 and 29-1819.03 provide an alternative method for a defendant to withdraw a plea after his or her conviction becomes final.(fn25) Section 29-1819.02 requires that the trial court warn defendants that a conviction might have negative immigration conse-quences.(fn26) If the court fails to do so, and the defendant shows that that conviction may result in his or her removal from the United States, the trial court must vacate the judgment and allow the defendant to withdraw his or her plea and enter a plea of not guilty.(fn27) To withdraw a plea pursuant to Section 29-1819.02, a defendant must show only "(1) that the court failed to give all or part of the advisement


[required by section 29-1819.02(1)] and (2) that the defendant faces an immigration consequence which was not included in the advisement he or she received."(fn28) The defendant is not required to show that he or she was prejudiced as a result of the plea.(fn29)


A. Gonzalez I

In 2007, Alma Gonzalez was arrested for fraudulently obtaining public assistance benefits in an amount greater than $500, a Class IV felony carrying a possible penalty of up to five years in prison or a $10,000 fine.(fn30) Prior to her arrest, the federal government had initiated deportation proceedings against Gonzalez, who was living in the country illegally.(fn31) Gonzalez pled no contest in early 2008 in exchange for the State recommending a term of probation at sentencing and Gonzalez's agreement to pay restitution for the benefits that she had illegally obtained.(fn32) Before accepting her plea, the court warned her that conviction for the offense could lead to her deportation or denial of her naturalization requests.(fn33) Prior to entering her plea, Gonzalez was eligible for a "cancellation of removal,"(fn34) but she became ineligible as a result of her conviction.(fn35)

Gonzalez subsequently filed a "Motion to Withdraw Plea and Vacate Judgment" on July 14, 2010, alleging that she had received ineffective assistance of counsel.(fn36) At an evidentiary hearing, Gonzalez testified that she had not discussed the immigration consequences of her plea with her trial counsel.(fn37) Gonzalez testified that her trial counsel knew she was not a United States citizen, but that she had not


informed her counsel of her ongoing immigration case.(fn38) Gonzalez said that she would have "looked into other solutions" had she known that her plea might have immigration consequences.(fn39) However, Gonzalez also admitted that she never asked her attorney whether her plea might cause problems with her immigration status, even though the immigration consequences of her plea were "very important to her."(fn40) Gonzalez stated that she did not learn the consequences of her plea until she was told by the attorney representing her in her immigration proceedings, about five months before she filed her motion to withdraw her plea.(fn41) The district court denied Gonzalez's motion, finding that her assertion that she would have looked for a different solution did not satisfy her burden of showing that she was prejudiced by her counsel's performance, because finding a different solution was not in her control.(fn42) The trial court also noted that although Gonzalez had two attorneys at the time of her plea-her trial counsel and her immigration attorney-she did not ask either of them about the...

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