State v. Gach
297 Neb. 96
| Neb. | 2017Background
- In 2010 Buoy P. Gach pleaded no contest to one count of first-degree assault; other charges were dismissed; he was sentenced to 10–20 years.
- At the plea hearing the trial court did not recite the verbatim statutory immigration advisement in Neb. Rev. Stat. § 29-1819.02(1); the court told Gach his immigration status "could be affected" and he "could be deported."
- Gach, a noncitizen, later had an ICE immigration detainer placed while incarcerated, indicating DHS intended to assume custody to determine removability.
- In 2014 Gach moved to vacate his conviction and withdraw his plea under § 29-1819.02(2), arguing the court failed to give the required advisement.
- The district court found the statutory advisement was not given (first Yos‑Chiguil factor satisfied) but ruled Gach failed to prove he faced an immigration consequence that was not communicated (second factor), so denied relief.
- The Nebraska Supreme Court affirmed, holding that while the court erred in not reciting the statutory language, Gach did not show by clear and convincing evidence that the court failed to warn him of the actual immigration consequence (removal) he faced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to give verbatim statutory immigration advisement mandates vacatur under § 29-1819.02(2) | Gach: court did not give required advisement; thus conviction must be vacated | State: deviation alone is not necessarily fatal; defendant must show unadvised consequence | Court: Deviation satisfied the first Yos‑Chiguil factor but deviation alone is not dispositive; must analyze second factor |
| What showing is required to obtain relief under § 29-1819.02(2) | Gach: statutory failure plus his status and detainer entitle him to vacatur | State: defendant must prove by clear and convincing evidence that he faces an immigration consequence not communicated at plea | Court: Defendant must prove (1) advisement omission and (2) an immigration consequence not included in the actual advisement, by clear and convincing evidence (adopting Yos‑Chiguil) |
| Whether an ICE detainer means the defendant "actually faces" removal for § 29-1819.02 purposes | Gach: ICE detainer shows he actually faces removal | State: ICE detainer may not alone prove an unadvised consequence beyond what was told | Court: An ICE detainer is sufficient to show the defendant "actually faces" immigration consequences (favors Gach on this point) |
| Whether the court’s colloquy informed Gach of the specific immigration consequence he faced (removal) | Gach: colloquy was incomplete and failed to warn of removal consequence | State: court’s statement that he "could be deported" conveyed the removal consequence | Court: The court’s statement that he "could be deported" adequately warned of removal; Gach failed to prove an unadvised immigration consequence, so relief denied |
Key Cases Cited
- State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (Neb. 2009) (establishes two‑part test for § 29‑1819.02 relief)
- State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (Neb. 2010) (ICE detainer means defendant "actually faces" immigration consequences)
- State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (Neb. 2014) (admonition that courts should recite statutory advisement verbatim)
- State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (Neb. 2015) (standards on plea‑withdrawal review and abuse of discretion)