State v. Jerke

Summary

The Nebraska Supreme Court held that the common-law procedure recognized in State v. Gonzalez for withdrawing a plea after conviction is available only when the Nebraska Postconviction Act was never available and a constitutional right is at issue. The court concluded that the Postconviction Act was available to Jedo J. Jerke because he could have discovered the factual predicate of his ineffective-assistance claim during incarceration. The court reversed the district court’s order vacating the conviction and plea and remanded with directions to dismiss.

Holdings

1. The common-law procedure recognized in State v. Gonzalez is available only when the Nebraska Postconviction Act is not, and never was, available as a means of asserting the grounds supporting withdrawal of the plea, and a constitutional right is at issue.
2. The unavailability of the Nebraska Postconviction Act is not an affirmative defense subject to waiver by the State; it is a material element that a defendant must plead and prove to invoke the Gonzalez common-law procedure.
3. For an ineffective-assistance claim based on counsel's failure to advise about deportation consequences, the factual predicate consists of the objective facts concerning what counsel did or did not advise and the applicable deportation law, not the later discovery that deportation proceedings will actually occur.
4. The Nebraska Postconviction Act was available to Jerke during his incarceration because, through reasonable diligence, he could have discovered the factual predicate of his ineffective-assistance claim; consequently, the Gonzalez procedure was unavailable.

Questions Presented

1. Whether the common-law procedure recognized in State v. Gonzalez for withdrawing a plea after conviction is available when the Nebraska Postconviction Act was available during the defendant's incarceration to assert an ineffective-assistance claim.
2. Whether the availability of the Nebraska Postconviction Act is an affirmative defense that the State may waive, or instead a material element that the defendant must plead and prove to invoke the Gonzalez procedure.
3. When the factual predicate of an ineffective-assistance claim based on counsel's failure to advise of deportation consequences could have been discovered through reasonable diligence.
4. Whether State v. Mamer should be overruled or its treatment of the factual predicate of a Padilla claim altered.

Disposition

reversed_and_remanded