Saturday, October 03, 2009
Nebraska Supreme Court denies relief to defendant serving prison term for attempted second degree murder who requested that his guilty plea be set aside because he alleged the sentencing court's warning to him of the possible immigration consequences of his plea was insufficient. State v. Yos-Chiguil, S-08-1329, 278 Neb. 591 . "The (court's) failure to give the required advisement and the occurrence of an immigration consequence of which the defendant was not advised which triggers the statutory remedy in § 29-1819.02(2). The district court had jurisdiction to consider Yos-Chiguil’s motion to vacate his conviction, and this court has appellate jurisdiction to determine whether the district court erred in overruling the motion. § 29-1819.02(2) requires that in addition to showing that the advisement required by § 29-1819.02(1) was not given or was incomplete, a defendant seeking to vacate a plea-based conviction must also show that such conviction "may have the consequences for the defendant of removal from the United States, or denial of naturalization pursuant to the laws of the United States." Failure to give all or part of the advisement required by § 29-1819.02(1) regarding the immigration consequences of a guilty or nolo contendere plea is not alone sufficient to entitle a convicted defendant to have the conviction vacated and the plea withdrawn pursuant to § 29-1819.02(2). The defendant must also allege and show that he or she actually faces an immigration consequence which was not included in the advisement givenYos-Chiguil did not allege an essential fact necessary to trigger the remedy provided by § 29-1819.02(2), the district court did not err in denying the relief sought without an evidentiary hearing ."