State v. Gach, 898 N.W.2d 360

Background

In 2010 Buoy P. Gach, a noncitizen, pleaded no contest to first-degree assault and was sentenced to 10–20 years; other charges were dismissed under a plea agreement.
At the change-of-plea hearing the trial judge did not recite the verbatim statutory immigration advisement required by Neb. Rev. Stat. § 29-1819.02(1), but warned Gach his immigration status "could be affected" and that he "could be deported."
In April 2010 ICE filed an immigration detainer with the Department of Correctional Services (DCS) to hold Gach on DHS custody determination upon release.
In November 2014 Gach moved to vacate his conviction and withdraw his plea under § 29-1819.02(2), alleging the court failed to give the proper immigration advisement.
The district court found the statutory advisement was not given (first Yos‑Chiguil factor) but concluded Gach was advised of the relevant immigration consequence (deportation/removal) and denied the motion; Gach appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether failure to give the verbatim § 29‑1819.02(1) advisement requires vacatur of plea	Gach: the court did not give the required advisement, so vacatur is warranted under § 29‑1819.02(2)	State: failure to recite verbatim does not automatically entitle relief; defendant must show an unadvised immigration consequence	Court: First Yos‑Chiguil factor met — the court did not give the verbatim advisement, but verbatim wording is not per se determinative here
Whether Gach actually faces an immigration consequence covered by § 29‑1819.02	Gach: ICE detainer shows he faces removal sufficient to trigger the statute	State: agrees he faces immigration consequences but disputes that any such consequence was not communicated	Court: Gach faces removal (ICE detainer satisfies the "actually faces" test)
Whether the immigration consequence faced was not included in the advisement given	Gach: the court’s improvised advisement was incomplete and did not warn of removal	State: the court’s statements that his status "could be affected" and he "could be deported" adequately communicated the risk of removal	Court: Held Gach failed to prove by clear and convincing evidence that removal was not communicated; second Yos‑Chiguil factor not met
Whether the district court abused its discretion in denying plea withdrawal	Gach: denial was erroneous because advisement noncompliance requires vacatur	State: no abuse — defendant failed Yos‑Chiguil second prong	Court: No abuse of discretion; affirmed denial of motion to withdraw plea

Key Cases Cited

State v. Yos‑Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009) (two‑part test for relief under § 29‑1819.02: court advisement failure and an unadvised immigration consequence)
State v. Mena‑Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010) (ICE detainer establishes a defendant "actually faces" immigration consequences)
State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014) (admonition that courts should recite the statutory advisement verbatim; concurrence emphasizing compliance)
State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015) (withdrawal of plea reviewed for abuse of discretion)