Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/01/2019 09:06 AM CST - 372 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports STATE v. JERKE Cite as 302 Neb. 372 State of Nebraska, appellant and cross-appellee, v. Jedo J. Jerke, appellee and cross-appellant. ___ N.W.2d ___ Filed March 1, 2019. No. S-18-426. 1. Constitutional Law: Postconviction: Pleas. The common-law pro- cedure for withdrawing a plea after conviction recognized in State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013), is available only when (1) the Nebraska Postconviction Act is not, and never was, available as a means of asserting the ground or grounds justifying withdrawing the plea and (2) a constitutional right is at issue. 2. Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. 3. Postconviction: Pleas. Whether the common-law procedure for with- drawing a plea after conviction recognized in State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013), is available presents a question of law. 4. Effectiveness of Counsel: Proof: Time. The factual predicate for a claim of ineffectiveness of counsel concerns whether the important objective facts could reasonably have been discovered, not when the claimant should have discovered the legal significance of those facts. 5. Effectiveness of Counsel: Proof. When considering the factual predi- cate of a claim of ineffective assistance of counsel based on the failure to advise of deportation consequences, the important objective facts are (1) knowledge of what trial counsel did and did not advise the defendant and (2) the existence of the applicable deportation law. 6. Postconviction: Pleas: Proof. The unavailability of the Nebraska Postconviction Act is not an affirmative defense; it is a material ele- ment that must be pled and proved by a defendant seeking to use the procedure for withdrawing a plea after conviction recognized in State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013). - 373 - Nebraska Supreme Court A dvance Sheets 302 Nebraska R eports STATE v. JERKE Cite as 302 Neb. 372 Appeal from the District Court for Hall County: Teresa K. Luther, Judge. Reversed and remanded with directions. Douglas J. Peterson, Attorney General, and James D. Smith, and Martin R. Klein, and Katherine J. Doering, Deputy Hall County Attorneys, for appellant. Mark Porto, of Porto Law Office, for appellee. Kevin Ruser, of University of Nebraska College of Law Immigration Clinic, and David Shea and Damon Hudson, Senior Certified Law Students, for amicus curiae University of Nebraska College of Law Immigration Clinic. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Stacy, J. In 2012, Jedo J. Jerke entered a no contest plea to a charge of second degree assault. He was convicted and sentenced to a term of 4 to 6 years’ imprisonment. After completing his sentence, Jerke moved to vacate the sentence and withdraw the plea pursuant to the common-law procedure recognized in State v. Gonzalez,1 ...
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