State v. Chojolan, 851 N.W.2d 661

In 2006 Julio Chojolan pled guilty to attempted possession of a controlled substance (Class I misdemeanor) and received 30 days’ imprisonment (credit for time served). The plea record contains no immigration advisement.
In August 2012 Chojolan filed a motion to withdraw his 2006 plea and vacate the conviction, alleging neither defense counsel nor the court advised him of immigration consequences and that he faced removal and denial of naturalization.
Chojolan relied on Neb. Rev. Stat. § 29-1819.02(2) (Reissue 2008), which authorizes vacatur and plea withdrawal where the court failed to give required immigration advisements for pleas entered on or after July 20, 2002.
The State moved to dismiss, arguing the court lacked jurisdiction because Chojolan had completed his sentence and Padilla v. Kentucky should not apply retroactively.
The district court dismissed for lack of jurisdiction, finding Padilla (2010) not retroactive to a 2006 conviction and concluding § 29-1819.02(2) did not confer jurisdiction because Chojolan was no longer in custody.
On appeal the Nebraska Supreme Court affirmed the district court’s rejection of a retroactive Padilla claim but reversed the dismissal under § 29-1819.02(2), holding the statute gives jurisdiction to consider motions to withdraw pleas entered after July 20, 2002, regardless of whether the defendant has completed the sentence; the case was remanded for further proceedings.

Issue	Plaintiff's Argument (Chojolan)	Defendant's Argument (State)	Held
Whether Padilla v. Kentucky applies retroactively to Chojolan’s 2006 conviction	Padilla should apply retroactively to his ineffective-assistance claim for failure to advise about immigration consequences	Padilla announced a new rule that does not apply to convictions final before Padilla	Court: Padilla does not apply retroactively to a 2006 conviction; district court correctly denied relief on this basis
Whether Neb. Rev. Stat. § 29-1819.02(2) gives the court jurisdiction to consider a motion to withdraw a plea when the defendant has completed the sentence	§ 29-1819.02(2) authorizes vacatur and plea withdrawal for pleas entered after July 20, 2002; remedy is available even if sentence is completed	Court lacks jurisdiction once defendant has completed sentence, probation, or custody	Court: § 29-1819.02(2) provides a remedy regardless of whether the defendant completed the sentence; district court erred in dismissing for lack of jurisdiction; case remanded for merits

Padilla v. Kentucky, 559 U.S. 356 (2010) (attorney must advise noncitizen clients about deportation risks of a guilty plea)
Chaidez v. United States, 568 U.S. 342 (2013) (Padilla announced a new rule and is not retroactive to convictions already final)
State v. Osorio, 286 Neb. 384 (2013) (Padilla held not retroactive where conviction was final long before Padilla)
State v. Yuma, 286 Neb. 244 (2013) (Padilla applied where conviction became final shortly after Padilla was decided)