                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1318
                              Filed August 1, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

EDUARDO CANO,
     Defendant-Appellant.
________________________________________________________________


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

Dalrymple (motion for revocation of deferred judgment) and Bradley J. Harris

(guilty plea), Judges.




       Eduardo Cano appeals after pleading guilty to assault with intent to commit

serious injury. AFFIRMED.




       Rockne O. Cole of Cole Law Firm, P.C., Iowa City, for appellant.

       Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.




       Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                            2


DOYLE, Judge.

       Eduardo Cano appeals after pleading guilty to assault with intent to commit

serious injury, asserting a claim of ineffective assistance for counsel’s failure to

advise him of certain immigration consequences of his plea. Upon our review, we

affirm his conviction, judgment, and sentence, and we preserve his claim for

possible postconviction-relief proceedings to allow the record to be developed.

       I. Background Facts and Proceedings.

       In February 2016, the State filed a criminal complaint alleging Eduardo

Cano willfully caused bodily injury to another, in violation of Iowa Code section

708.4(2) (2016), a class “D” felony. Cano was appointed counsel.

       In April 2017, Cano entered a written guilty plea to the lesser-included

offense of assault with intent to inflict serious injury, in violation of section 708.2(1),

an aggravated misdemeanor. Among other things, the guilty plea form, signed by

Cano and his attorney, stated, “I understand that my conviction for the crime or

crimes in this guilty plea may result in adverse immigration consequences,

including deportation, if I am not a citizen of the United States.” Cano also waived

his rights to be present in court for the entry of his guilty plea and for his sentencing.

The court accepted his plea, and the judgment was deferred. A month later, an

appearance by privately-retained counsel was filed on Cano’s behalf. At the same

time, Cano filed an application for interlocutory review of the grant of his deferred

judgment. His application stated: “What would ordinarily be a fantastic result for a

US Citizen, has resulted in drastic adverse immigration consequences for [Cano].

He now sits in detention and faces the loss of his Deferred Action for Childhood

Arrivals due to the deferred judgment that was granted . . . .” He also filed a motion
                                           3


in district court to withdraw consent on request for a deferred judgment. The Iowa

Supreme Court denied his request for interlocutory appeal and directed the district

court “to hold a hearing and enter a ruling on [Cano’s] pending motion to withdraw

his consent to the deferred judgment.”

       Thereafter, the district court set a hearing on Cano’s motion. Cano then

filed a motion in arrest of judgment. Later, he filed a “Defendant’s Consent to

Revocation of Probation” wherein he consented to having his deferred judgment

revoked. In a motion to reset the hearing, Cano stated the parties had agreed that

his probation should be revoked.       At the hearing, the court heard all pending

motions. There, Cano’s current counsel conceded the motion in arrest of judgment

was untimely filed and explained:

       The only way to excuse that is ineffective assistance of prior counsel.
       I think given that the time frame that we’re under at this point, our
       preference would be that we make an offer of proof on the issue of
       the prior ineffective assistance of counsel, and that if the court is able
       to either grant or reject it, . . . I guess we’d request a ruling.

As part of his offer of proof, Cano testified his prior counsel had not discussed

specific immigration consequences with him prior to his entry of the written guilty

plea, including that his deferred judgment could be considered a conviction and

that the offense to which he pled guilty was classified as a crime involving moral

turpitude. Cano testified he would not have pled guilty if his counsel had advised

him of these and other specific consequences, “[b]ecause I’ve got my family here,

all my family’s here, and I got no family in Mexico so I want to stay with my family.

So I would not take that risk of being detained and facing deportation.”

       On cross-examination, Cano testified he told his prior counsel he was not a

citizen of the United States, and he maintained that was the only conversation he
                                           4


had with his prior counsel about immigration. Cano testified he did not read the

written guilty plea form, “because I had asked [prior counsel] if I was going to have

any problems in the future and he told me no, you’re not. So I trust on him and I

put my signature on it.”

       Cano waived attorney-client privilege with his prior counsel, and prior

counsel testified at the hearing.         Prior counsel testified he had multiple

conversations with Cano about immigration, and he told Cano “[a]ny conviction

can adversely affect his immigration status” and Cano “could be subject to

deportation.” Specifically, prior counsel “encouraged [Cano] to confer with an

attorney that specializes in immigration” and testified he himself had conferred with

Cano’s immigration attorney by phone.1 However, prior counsel was not asked at

the hearing—nor did he volunteer—any specific details about his conversations

with the immigration attorney. Prior counsel testified he “never had an opportunity”

to explain to Cano the concept of a motion in arrest of judgment, and he admitted

he had not specifically advised Cano the offense underlying the deferred judgment

could be classified as a felony or as a crime involving moral turpitude, among other

things. Following the hearing, the district court accepted Cano’s consent to the

revocation of his deferred judgment. Cano requested immediate sentencing. The

court revoked Cano’s deferred judgment and probation, entered judgment, and

imposed a sentence.




1
 Prior counsel testified he assumed the phone call was lined up by Cano, explaining, “I
don't know why anyone would just call me out of the blue wanting to discuss this specific
case.” We cannot discern from the record whether or not Cano had any direct
communications with immigration counsel.
                                            5


       II. Discussion.

       Cano now appeals,2 arguing his prior counsel rendered ineffective

assistance when he failed to give specifics as to possible immigration

consequences of his guilty plea, citing the seminal cases Padilla v. Kentucky, 559

U.S. 356, 357 (2010), and Morales Diaz v. State, 896 N.W.2d 723, 728 (Iowa

2017). In order to establish ineffective assistance of counsel, Cano must show by

a preponderance of the evidence that his trial counsel failed to perform an essential

duty and that failure prejudiced him. See Morales Diaz, 896 N.W.2d at 727. Our

review is de novo. See id.

       Generally, we preserve claims of ineffective assistance of counsel for

postconviction-relief proceedings to allow the record to be developed on various

issues. See State v. Gomez Garcia, 904 N.W.2d 172, 186 (Iowa 2017); State v.

Virgil, 895 N.W.2d 873, 879 (Iowa 2017). However, we may resolve the claim on

direct appeal if the record before us is adequate. Virgil, 895 N.W.2d at 879. Cano

maintains the record is adequate here to address his ineffective-assistance-of-

counsel claim because “the record, as it stands now, is that Mr. Cano has identified

several concrete and readily ascertainable adverse consequences arising from

this conviction. His [prior] lawyer confirmed that he conveyed none of those

consequences to Mr. Cano. That establishes deficient performance. QED.” He

also maintains his testimony that he would not have pled guilty establishes that he

was prejudiced by the alleged breach. We disagree.


2
  We note that the parts of the record appearing in the parties’ appendix are in reverse
chronological order. Iowa Rule of Appellate Procedure 6.905(6) requires “other parts of
the record of proceedings relevant to the issues raised in the appeal shall be . . . in the
chronological order in which the proceedings occurred.”
                                          6

       To be sure, Morales Diaz mandates that defense counsel inform their client

“of the direct, severe, and certain immigration consequences of pleading guilty.”

896 N.W.2d at 732. Nevertheless, we conclude the minimal record in this case

leaves unknown the question of whether Cano’s prior counsel breached his duty

under Morales Diaz, particularly in light of Cano’s inconsistent testimony of what

advice his prior attorney actually gave, his signature on the guilty plea form stating

he was advised of the relevant consequences by his counsel, and his and his prior

attorney’s conversations with an immigration attorney about the relevant

consequences. Prior counsel’s testimony on this limited record certainly suggests

Cano had been advised of those consequences, even if prior counsel was not the

one who specifically related the information to Cano.          We find the record

insufficient to make any determination whether prior counsel breached his duty.

       III. Conclusion.

       When the record is inadequate to resolve an ineffective-assistance-of-

counsel claim, we must preserve it for postconviction-relief proceedings. See

State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). Accordingly, we affirm

Cano’s conviction, judgment, and sentence, and we preserve his ineffective-

assistance-of-counsel claim for possible postconviction-relief proceedings to allow

the record to be developed.

       AFFIRMED.
