State v. Gach
297 Neb. 96
| Neb. | 2017Background
- In 2010 Buoy P. Gach pleaded no contest to one count of first-degree assault; remaining charges were dismissed; he was sentenced to 10–20 years’ imprisonment.
- At the change-of-plea hearing the trial judge gave an improvised immigration advisement: told Gach his immigration status "could be affected" and he "could be deported," but did not recite the verbatim statutory language of Neb. Rev. Stat. § 29-1819.02(1).
- Gach, a noncitizen, later received an ICE immigration detainer while incarcerated, with DCS intending to hold him for transfer at sentence end.
- In 2014 Gach moved to vacate the conviction and withdraw his plea under § 29-1819.02(2), arguing the court failed to give the required advisement and that he faces removal.
- The district court found the court did not give the verbatim advisement (first Yos-Chiguil factor satisfied) but concluded the improvised advisement nonetheless warned Gach of deportation/removal (second factor not met) and denied relief.
- Gach appealed; the Nebraska Supreme Court affirmed, holding no abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to give the verbatim § 29-1819.02(1) advisement requires vacatur per § 29-1819.02(2) | Gach: Court did not give required advisement and thus conviction must be vacated because he faces immigration consequences not advised | State: Substantial or equivalent advisement can satisfy statute; here defendant was warned about deportation | Court: First Yos‑Chiguil prong satisfied (statute not recited verbatim) but vacatur not automatic; need second prong showing an unadvised consequence |
| Whether Gach "actually faces" immigration consequences protected by § 29-1819.02 | Gach: ICE detainer and planned transfer show he faces removal | State: Not disputed ICE detainer shows consequence; contested whether it was unadvised | Court: ICE detainer establishes Gach "actually faces" removal consequences |
| Whether the immigration consequence Gach faces was not communicated in the advisement given | Gach: Court’s improvised language was insufficient and did not warn of removal/transfer/detainer consequences | State: Court told Gach his status could be affected and he could be deported — that warned of removal | Court: Gach failed to prove by clear and convincing evidence that the actual consequence (removal) was not communicated; second Yos‑Chiguil prong not met |
| Whether district court abused discretion in denying motion to withdraw plea | Gach: Denial was error given statutory noncompliance and actual facing of removal | State: No abuse; statutory remedy requires both Yos‑Chiguil elements and they weren’t met | Court: No abuse of discretion; affirmed denial |
Key Cases Cited
- State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009) (announces two‑part test under § 29-1819.02 for plea‑withdrawal claims)
- State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010) (ICE detainer means defendant "actually faces" immigration consequences)
- State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014) (advisement language should be given verbatim; concurrence urges strict compliance)
- State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015) (standard of review: plea‑withdrawal denial reviewed for abuse of discretion)
- In re Guardianship & Conservatorship of Donley, 262 Neb. 282, 631 N.W.2d 839 (2001) (procedural authority cited for appellate procedures)