                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0235
                              Filed March 20, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PRINCE MELLISH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, Gary P.

Strausser, District Associate Judge.



      Prince Mellish appeals his conviction and sentence for theft in the third

degree. AFFIRMED.



      Elizabeth Araguas of Nidey, Erdahl, Fisher, Pilkington & Meier PLC, Cedar

Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Vogel, C.J., and Vaitheswaran and Potterfield, JJ.
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VOGEL, Chief Judge.

          Prince Mellish appeals his conviction and sentence for theft in the third

degree. See Iowa Code §§ 714.1, 714.2(3) (2017). He argues his counsel was

ineffective for allowing him to sign a plea agreement that incorrectly states the law

and for failing to correctly explain how his guilty plea would affect his immigration

status. We find the plea agreement correctly states he has an obligation to

understand his immigration status and no prejudice resulted from his counsel’s

claimed failure to investigate the divisibility of his theft charge. Therefore, we

affirm.

          On June 9, 2018, the district court accepted Mellish’s written guilty plea for

theft in the third degree.1 The court sentenced him to ninety-two days in jail with

all jail time suspended and placed him on probation. He appealed to us and

obtained a motion for limited remand to establish a record on immigration issues.

As part of the remand, he deposed his plea counsel. His plea counsel testified

Mellish came to the United States as a refugee from Liberia and was in federal

detention at the time he entered his plea.

          We review ineffective-assistance-of-counsel claims de novo.          State v.

Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). “In order to succeed on a claim of

ineffective assistance of counsel, a defendant must prove: (1) counsel failed to

perform an essential duty; and (2) prejudice resulted.” Id. (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)). A breach of an essential duty occurs




1
 In the same written plea agreement, Mellish also agreed to plead guilty to possession of
a controlled substance from a separate case number. The possession charge is not part
of this appeal.
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“when the attorney fails to advise a client of the immigration consequences of a

plea.” Diaz v. State, 896 N.W.2d 723, 728 (Iowa 2017). “If the defendant makes

the requisite showing under this first prong, the defendant must then show that,

but for counsel’s ineffective assistance, he or she ‘would not have pleaded guilty

and would have insisted on going to trial.’” Id. (quoting Hill v. Lockhart, 474 U.S.

52, 59 (1985)). To establish prejudice, “the defendant must only show the ‘decision

to reject the plea bargain would have been rational under the circumstances.’” Id.

at 729 (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).

       First, Mellish argues his counsel was ineffective for allowing him to sign the

written guilty plea. Specifically, he argues the following passage misstates the law:

              C. FOR PERSONS WHO ARE NOT A U.S. CITIZEN: I
       understand that a criminal conviction, deferred judgment or deferred
       sentence may result in my deportation or have other adverse
       immigration consequences if I am not a United States citizen. I have
       had the opportunity to obtain legal advice about this matter and
       understand that it is my obligation to understand my immigration
       status before entering a guilty plea in this case.

(Emphasis added.) He asserts this passage improperly shifts the burden for

understanding the immigration consequences of a guilty plea onto the defendant.

We disagree.     The district court is generally obligated to “determine that the

defendant understands” the plea and to reject the plea if it was not made voluntarily

and intelligently. Iowa Ct. R. 2.8(2)(b). To that end, the plea Mellish signed

includes affirmations that he understands the crime charged, the maximum

punishment he could receive, the rights he was waiving, and other consequences.

Including an acknowledgement that he recognizes his obligation to understand his

immigration status is consistent with the court’s duty to ensure the plea is voluntary

and intelligent. See id.
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       Furthermore, our supreme court has favorably quoted the guidelines of the

American Bar Association in formulating an attorney’s duty for non-citizen

defendants, recommending that “[d]efense counsel should determine a client’s

citizenship and immigration status” and “investigate and identify particular

immigration consequences that might follow possible criminal dispositions.” Diaz,

896 N.W.2d at 731. Counsel should then “advise the client of all such potential

consequences and determine with the client the best course of action for the

client’s interests and how to pursue it.” Id. Inherent in this recommendation is the

requirement that the client understand his or her own immigration status;

otherwise, counsel cannot effectively help the client determine the best course of

action. When taken as a whole, his counsel’s testimony and the written plea make

clear Mellish’s obligation to understand his immigration status is in conjunction with

his opportunity to obtain legal advice about the matter. His counsel testified he

has known Mellish “for quite some time,” having first represented him as a juvenile

in 2015. His counsel also testified he had advised Mellish of specific immigration

consequences related to his theft charge here. Therefore, his counsel was not

ineffective for allowing him to sign the written plea.

       Second, Mellish argues his counsel was ineffective for failing to investigate

the potential divisibility of his theft charges under Iowa Code section 714.1.2 Even



2
 The Eighth Circuit Court of Appeals provided the following explanation of when a state
conviction is a removable offense for a non-citizen in the context of a drug conviction:
                To determine whether a state drug conviction is grounds for
        removal, the adjudicator is required to apply the so-called “categorical
        approach.” That approach calls for a comparison of the elements of the
        state offense with removable offenses defined by federal law. The
        adjudicator must assume that the state conviction rested upon nothing
        more than the least of the acts criminalized by the state statute and then
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if we assume his counsel breached an essential duty here, he cannot show

prejudice resulted. He asserts an effective counsel would have recognized the

potential divisibility and could have structured an “immigration-safe” conviction with

little or no impact on his immigration status. However, we do not determine

prejudice based on a hypothetical plea agreement never offered; rather, Mellish

must show that but for the claimed ineffective assistance he “would not have

pleaded guilty and would have insisted on going to trial.” Diaz, 896 N.W.2d at 728.

       According to his trial counsel, Mellish has a prior conviction for third-degree

attempted burglary. His plea counsel testified he provided the following advice

during plea discussions:

       I let him know that, from my understanding, he was already subject
       to removal based on the [attempted burglary conviction] and that he
       was being held and detained on that—because when I went to visit
       him he was actually in [federal Immigration and Customs
       Enforcement] detention—I told him that—that this new offense would
       lead—lead to removal proceedings as well, but that they’d probably
       all just get taken care of at the same time; I told him that we could
       proceed to jury trial, but from the underlying facts and from the
       discovery that I got from the county attorney and my review of it, that
       it probably wasn’t going to be of a different outcome.




       determine whether that state statute fits within the removable offense
       identified by federal law.
                Where a state statute encompasses the same conduct or less
       conduct than the federal offense, a conviction under the state statute will
       be a categorical match. But where a state statute criminalizes more
       conduct than the removable offense, it is overbroad and does not
       categorically make the offender removable. In that case, however, if a
       statute includes multiple, alternative elements that create several different
       crimes, the statute is considered “divisible.” The adjudicator may then seek
       to determine, based on a limited class of judicial records, the crime of which
       the alien was convicted. After applying this modified categorical approach,
       if the elements of the offense of conviction fit within the removable offense,
       the alien is removable.
Martinez v. Sessions, 893 F.3d 1067, 1069–70 (8th Cir. 2018) (citations omitted).
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His counsel also testified he knew the new theft charge “wouldn’t bode well in

[Mellish’s] removal proceedings, but from my understanding he was already going

to be deported.” Mellish asserts his counsel failed to verify these facts. However,

Mellish bears the burden of proving prejudice in order to succeed on his ineffective-

assistance claim. See id. Mellish has provided no evidence to refute his counsel’s

statement that his prior burglary conviction ensured “he was already going to be

deported” regardless of the outcome of his theft proceeding. He has also shown

no other “unusual circumstances” that would prove “a reasonable probability that

he would have rejected the plea.” Lee v. United States, 137 S. Ct. 1958, 1967–69

(2017) (finding a noncitizen defendant established prejudice by showing

“deportation [was] the ‘determinative issue’ . . . in plea discussions,” he “had strong

connections to this country and no other,” and “the consequences of taking a

chance at trial were not markedly harsher than pleading”). As his counsel noted,

the State offered a substantial benefit in the plea agreement by agreeing to

suspend any jail time. Therefore, Mellish has not shown he would have made a

rational decision to reject the plea agreement and insist on trial even if his counsel

had fully advised him of the potential divisibility of his theft charge. See Diaz, 896

N.W.2d at 728–29.

       Alternatively, Mellish asks us to adopt a per se rule of prejudice when

counsel for a non-citizen breaches an essential duty with immigration

consequences. In order to show prejudice, our supreme court requires non-

citizens to prove they “would not have pleaded guilty and would have insisted on

going to trial.” Id. at 728. “We are not at liberty to overturn Iowa Supreme Court
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precedent.” State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990). We

decline to adopt a per se rule of prejudice.

       AFFIRMED.
