                       IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1232
                                Filed July 6, 2017


JUAN AGUILAR-GARCIA,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris, Judge.




       An inmate appeals the court’s denial of his application for postconviction

relief. AFFIRMED.



       Andrew J. Smith of Mack, Hansen, Gadd, Armstrong & Brown P.C., Storm

Lake, for appellant.

       Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.




       Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, Judge.

       Juan Aguilar-Garcia appeals the district court’s denial of his application for

postconviction relief, asserting two deficiencies in the representation he received

from his attorney.      Aguilar-Garcia argues (1) counsel did not sufficiently

investigate his defense or prepare for a possible trial and (2) counsel misadvised

him concerning the immigration consequences of his plea.            Because Aguilar-

Garcia fails to establish the performance of his counsel fell below professional

norms, we affirm the court’s denial of relief.

       I.     Facts and Prior Proceedings

       The State charged Aguilar-Garcia with four counts of sexual abuse in the

second degree, class “B” felonies, for allegedly performing sex acts on a child

under the age of twelve. See Iowa Code §§ 709.1, 709.3(2) (2011). On the day

trial was set to begin in April 2012, Aguilar-Garcia entered an Alford1 plea to one

count of sexual abuse in the second degree. As part of the plea agreement, the

State agreed to drop the three remaining counts. The district court sentenced

him to twenty-five years in prison with a mandatory seventy-percent minimum.

Aguilar-Garcia did not directly appeal his conviction and sentence.

       On August 29, 2013, Aguilar-Garcia filed a pro se application for

postconviction relief (PCR).     On June 29, 2016, Aguilar-Garcia filed a recast

petition, alleging his trial counsel provided ineffective assistance by not giving

him the correct information regarding possible immigration consequences and by

not being prepared for trial.


1
 Under North Carolina v. Alford, 400 U.S. 25, 37 (1970), a defendant may consent to the
imposition of a prison sentence without admitting participation in the crime.
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       The district court held a PCR trial on July 13, 2016, at which Aguilar-

Garcia and his counsel both testified. Aguilar-Garcia told the court his attorney

“should have talked with my witnesses and investigated this case more.” Aguilar-

Garcia also testified he believed from speaking with his attorney that he would be

deported shortly after he entered his guilty plea and would not have to serve the

mandatory minimum of seventeen years.                 Attorney Tomas Rodriguez

contradicted Aguilar-Garcia on both points, testifying he was ready to proceed to

trial and did not give his client any guarantees concerning how long he would

serve in prison before being deported.2

       After hearing the testimony and reviewing the criminal case file, the PCR

court denied Aguilar-Garcia’s application. On the question of trial preparation,

the district court noted counsel had deposed the alleged victim and medical

experts and counsel had reviewed all of the police reports.          The court also

credited counsel’s testimony that he spoke with the witnesses identified by

Aguilar-Garcia, who were sisters of the alleged victim, but that they had no direct

knowledge of the alleged incidents and could only speak to his general character.

The court did not accept the claim counsel was unprepared.             On the claim

regarding immigration consequences, the PCR court found counsel did not

misadvise Aguilar-Garcia concerning the amount of time he would spend in

prison before any deportation.

       Aguilar-Garcia now appeals the denial of his PCR application.


2
  Rodriguez consulted an immigration attorney regarding Aguilar-Garcia’s illegal-alien
status. The immigration attorney believed Aguilar-Garcia would not serve the entire
minimum sentence before being deported. Rodriguez is fluent in Spanish and gave this
information to Aguilar-Garcia.
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      II.    Standard of Review

      We review claims of ineffective assistance of counsel de novo.         See

Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). To prevail, Aguilar-Garcia

must prove by a preponderance of the evidence that his counsel failed to perform

an essential duty and prejudice resulted from this failure. See State v. Carroll,

767 N.W.2d 638, 641 (Iowa 2009); State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006). To establish trial counsel failed to perform an essential duty, Aguilar-

Garcia must overcome this court’s presumption counsel performed competently

and must prove counsel’s performance fell below the standard of a reasonably

competent attorney. See Straw, 709 N.W.2d at 133. An applicant’s “inability to

prove either element is fatal” to the constitutional challenge.    See State v.

Graves, 668 N.W.2d 860, 869 (Iowa 2003).        In the context of a guilty plea,

Aguilar-Garcia must prove but for counsel’s alleged errors, he would not have

pleaded guilty and would have forced the case to go to trial. See Carroll, 767

N.W.2d at 641.

      III.   Ineffective Assistance of Counsel

             A. Investigation and Preparation

      Criminal defense counsel “has a duty to make reasonable investigations

or to make a reasonable decision that makes particular investigations

unnecessary.” Strickland v. Washington, 466 U.S. 668, 691 (1984). Aguilar-

Garcia argues his counsel did not sufficiently investigate and prepare for trial,

and specifically failed to timely speak to two sisters of the alleged victim who

could have served as character witnesses for him.         But defense counsel

explained at the PCR hearing that he did interview these two potential witnesses
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and discovered they did not have any direct knowledge about the case. The only

testimony the sisters could have offered was how well they knew Aguilar-Garcia

and the fact they did not believe he could have committed these acts. Further,

counsel reviewed the county attorney’s file, including police reports and

statements, medical reports, and “videotapes and recordings of the interview of

the victim.” His trial preparation also included deposing the alleged victim and

medical personnel.

      Counsel did a reasonable inspection of the evidence and thus adequately

prepared for a potential trial. Counsel’s assessment the sisters’ testimony would

not be beneficial to Aguilar-Garcia’s case because they had no knowledge of the

crime was a tactical decision that did not amount to ineffective assistance.

“When counsel makes a reasonable tactical decision, this court will not engage in

second-guessing.” Fryer v. State, 325 N.W.2d 400, 413 (Iowa 1982). We find no

breach of duty on the claim of inadequate investigation and preparation.

             B. Advice on Immigration Consequences

      Criminal defense attorneys have a duty to advise their clients regarding

the immigration consequences of a guilty plea.      Morales Diaz v. State, ___

N.W.2d ___, ___, 2017 WL 2491640, at *3, (Iowa 2017); see also Padilla v.

Kentucky, 559 U.S. 356, 367–68 (2010).       Here, defense counsel testified he

informed Aguilar-Garcia that deportation was likely but the timing was uncertain.

Aguilar-Garcia testified that based on his attorney’s advice, he believed he would

be incarcerated for less than one year before being deported.         On appeal,

Aguilar-Garcia contends that advice was inaccurate because Aguilar-Garcia later
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learned he might not be deported until he served his mandatory minimum

sentence.

      Aguilar-Garcia’s complaint that he was not deported more quickly is not

the normal concern regarding adverse immigration consequences. Generally,

counsel’s duty is to warn noncitizen clients whether a conviction rendered them

deportable.    Padilla, 559 U.S. at 369.     Our supreme court recently found a

criminal defense attorney ineffective for failing to provide information concerning

the “sweeping ramifications” of pleading guilty to “an aggravated felony.”

Morales Diaz, __ N.W.2d at __, 2017 WL 2491640, at *7.

      Aguilar-Garcia’s case differs from the situation in Morales Diaz. Aguilar-

Garcia is not claiming he was unaware of possible adverse immigration

consequences, but rather he is claiming he was not deported quickly and has

had to serve more of his prison sentence than he expected. Aguilar-Garcia’s

counsel consulted an immigration attorney and relayed that information to

Aguilar-Garcia. That effort is distinct from Morales Diaz, where counsel shared

his erroneous belief with his client that missing an immigration hearing foreclosed

all possibility of relief. See id. Aguilar-Garcia was informed of possible negative

immigration consequences but hoped he would be deported more quickly.

Because Aguilar-Garcia’s attorney offered no guarantee when his client would be

deported, Aguilar-Garcia’s claim that counsel breached a duty is without merit.

      IV.      Conclusion

      Aguilar-Garcia fails to show his counsel performed below constitutional

norms.      Like the district court, we find the ineffective-assistance-of-counsel
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claims raised by Aguilar-Garcia’s PCR application are without merit, and we

therefore affirm.

       AFFIRMED.
