                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0604
                             Filed October 26, 2016


MEHO IBRAHIMOVIC,
    Applicant-Appellee,

vs.

STATE OF IOWA,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple, Judge.



      The State appeals from the district court’s grant of the applicant’s

application for postconviction relief. AFFIRMED.




      Alexander D. Smith of Parrish Kruidenier Dunn Boles Gribble Gentry

Brown & Bergmann L.L.P, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee State.




      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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MCDONALD, Judge.

       Meho Ibrahimovic sought postconviction relief following his multiple

convictions for possession of stolen property.          He claimed he received

constitutionally ineffective assistance of counsel when his counsel failed to

advise him of the immigration consequences of his guilty pleas. Ibrahimovic

moved for summary disposition on his claim, contending prejudice should be

presumed from the breach of duty.        The district court granted Ibrahimovic’s

motion for summary disposition, concluding it was not disputed Ibrahimovic’s

counsel breached a duty and concluding Ibrahimovic was entitled to relief as a

matter of law because prejudice was presumed under the circumstances. The

State timely filed this appeal.

       On appeal, the State contends the district court erred because the failure

to advise a defendant of the immigration consequences arising from conviction

following a guilty plea does not give rise to a presumption of prejudice. Instead,

the State argues, State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006), requires the

applicant to establish Strickland prejudice resulted from counsel’s failure to give

the required advice. The State did not raise this argument in the district court.

The entirety of the State’s substantive resistance to Ibrahimovic’s motion is as

follows:

       Resistance is supported by [plea counsel’s] deposition, the guilty
       pleas/sentencing transcripts and the court file in each of the above
       numerated cases which the State requests that the Court take
       Judicial Notice all of which support the finding that the Court should
       deny the Motion for Summary Disposition.

The State did not argue prejudice should not be presumed or Ibrahimovic failed

to establish prejudice.
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      The State’s failure to make an argument of any sort in the district court

constitutes waiver of the argument. See State v. Baldon, 829 N.W.2d 785, 789

(Iowa 2013) (finding the State waived “argument by not presenting it to the

district court in a manner that would have allowed the court to fully and properly

address it”); In re N.V., 744 N.W.2d 634, 639 (Iowa 2008) (“Ordinarily, issues not

presented to the trial court are not reviewable when raised for the first time on

appeal.”); State v. Miranda, 672 N.W.2d 753, 761 (Iowa 2003) (“Because the

State does not separately address this issue, it has waived any argument to the

contrary.”); Reyna v. State, No. 13-0126, 2014 WL 1234142, at *2 (Iowa Ct. App.

Mar. 26, 2014) (holding State waived statute of limitations defense by failing to

raise it); Susie v. Bennett, No. 06-0116, 2006 WL 3436433, at *4 (Iowa Ct. App.

Nov. 30, 2006) (“Where an issue is not raised in resistance to a motion for

summary judgment, and is not included in a motion pursuant to Iowa Rule of Civil

Procedure 1.904(2), it is waived.”); Davison v. State, 671 N.W.2d 519, 521 (Iowa

Ct. App. 2003) (“The issue was not raised in their resistance to the State’s motion

for summary judgment, and the Davisons did not file a motion to enlarge

pursuant to Iowa Rule of Civil Procedure 1.904(2). Accordingly, the issue is

waived.”).

      AFFIRMED.
