                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 38477


 HASAN ICANOVIC,                                      )
                                                      )
      Petitioner-Appellant,                           )   Boise, September 2015 Term
                                                      )
 v.                                                   )   2015 Opinion No. 120
                                                      )
 STATE OF IDAHO,                                      )   Filed: December 23, 2015
                                                      )
     Respondent.                                      )   Stephen W. Kenyon, Clerk
 _____________________________________

         Appeal from the district court of the Fourth Judicial District of the State
         of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.

         The district court’s dismissal of the petition for post-conviction relief is
         affirmed. Costs on appeal are awarded to the respondent.

         Sara B. Thomas, State Appellate Public Defender, Boise, attorney for
         appellant. Justin M. Curtis argued.

         Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for
         respondent. Kenneth K. Jorgensen argued.
                              ___________________________

W. JONES, Justice
                                       I. NATURE OF THE CASE
        Hasan Icanovic (Icanovic) appeals the district court’s dismissal of his petition for post-
conviction relief brought on the ground that he received ineffective assistance of counsel.
Icanovic argues that his attorney’s advice offered in connection with his consideration and
acceptance of a plea bargain was deficient and that but for this advice he would not have pled
guilty to felony domestic battery. At issue is his attorney’s advice regarding the immigration-
related consequences of his guilty plea. The State of Idaho (State) argues the court properly
found neither deficient performance by counsel nor prejudice to Icanovic. Icanovic appeals,
requesting that his guilty plea and conviction be vacated and the case remanded. We affirm the
dismissal of Icanovic’s petition for post-conviction relief.
                         II. FACTUAL AND PROCEDURAL BACKGROUND

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        This appeal for post-conviction relief comes before this Court for a second time after
being previously remanded for an evidentiary hearing.
        1.      The Guilty Plea
        Icanovic is a Bosnian citizen who formerly resided in Idaho. In May 2009, Icanovic was
charged with felony attempted strangulation and misdemeanor domestic violence. Icanovic was
represented on the charges by attorney Jared Martens (Martens). Icanovic alleged that, during his
consideration of a plea deal offered by the State, Martens advised him that he would neither be
deported to Bosnia nor barred from applying for United States citizenship if he entered into the
plea bargain. In June 2009, pursuant to a negotiated plea agreement, Icanovic pled guilty to one
count of felony domestic battery. The district court accepted this plea following an examination
of Icanovic under oath and after a waiver of his applicable rights. The district court advised
Icanovic that his plea “may result in deportation, the inability to obtain legal status, or denial of
an application for United States citizenship.” In September 2009, the district court sentenced
Icanovic to eight years of incarceration with the first three years fixed; the court retained
jurisdiction.
        On September 14, 2009, the U.S. Bureau of Homeland Security, Department of
Immigration and Customs (ICE) provided Icanovic and the district court with a notice of
detainer. On February 18, 2010, the court suspended Icanovic’s sentence and placed him on
probation for ten years. One day later, Icanovic was served with an ICE detainer, and shortly
thereafter he was taken into custody pending deportation. Icanovic never directly appealed his
judgment of conviction.
        2.      The Padilla Decision
        On March 31, 2010—forty-one days after the district court placed Icanovic on
probation—the United States Supreme Court issued its opinion in Padilla v. Kentucky, 559 U.S.
356 (2010). This decision addresses the issues raised in Icanovic’s petition for post-conviction
relief. In Padilla, a native Honduran who was a lawful permanent resident in the United States
pled guilty to transporting a large quantity of marijuana. Id. at 359. Padilla’s attorney allegedly
advised him not to worry about the immigration consequences of his plea because he had resided
in the United States for a long period of time. Id. However, following his plea, Padilla faced
deportation. Id. The United States Supreme Court reversed the denial of Padilla’s petition for
post-conviction relief, holding that where the immigration consequences of a conviction are


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easily determinable by reading the relevant statute, defense counsel have a duty to correctly
advise a client of these consequences. Id. at 368. Prior to the Padilla decision, Idaho followed the
same approach as Kentucky. See Ray v. State, 133 Idaho 96, 102, 982 P.2d 931, 937 (1999)
(“The Sixth Amendment contains no implied duty for an attorney to inform his client of
collateral consequences of a guilty plea.”); see also Retamoza v. State, 125 Idaho 792, 797, 874
P.2d 603, 608 (Ct. App. 1994) (immigration consequences are collateral and therefore irrelevant
to effectiveness of counsel).
       3.       The Post-Conviction Proceedings
       In the wake of the Padilla decision, on October 9, 2010, Icanovic filed a petition for post-
conviction relief (Petition) supported by his affidavit. In his Petition to the district court, Icanovic
alleged that Martens’s assistance was ineffective in two ways: (1) in response to a specific
question, Martens told Icanovic that he would not be deported if he pled guilty; and (2) in
response to a specific question, Martens told Icanovic that he would not lose his ability to apply
for United States citizenship if he pled guilty. Given these alleged errors, Icanovic sought to have
his guilty plea and judgment of conviction vacated. Shortly after the Petition was filed, the court
issued a Notice of Intent to Summarily Dismiss Petition for Post-Conviction Relief. The court
reasoned that, even if the allegations were true and Martens’s performance was constitutionally
deficient under Strickland v. Washington, 466 U.S. 668 (1984), and Padilla, this deficiency was
cured by the district court informing Icanovic during the plea colloquy that he may be deported
or denied United States citizenship. The court found that this advisement prevented Icanovic
from establishing the prejudice prong of the Strickland standard.
       However, in January 2011, the district court held a hearing on the issue. There, Martens
testified that he did not affirmatively advise Icanovic as to whether there would or would not be
immigration consequences to his plea. Instead, Martens testified that he advised Icanovic there
could be consequences, but that he did not know whether the federal government would deport
him. According to Martens, he told Icanovic, “They might. They might not.” The district court
found this testimony credible and that the advice offered was not deficient. The court further
found that its advisement to Icanovic during his plea allocution cured any ineffectiveness in
Martens’s representation. Thereafter, the court issued a final order dismissing Icanovic’s petition.
Icanovic timely appealed to this Court.
       4.       First Appeal to this Court


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       In his first appeal to this Court, Icanovic argued that Martens’s advice was
constitutionally deficient under Padilla and that this deficiency was not cured by the district
court’s advisement. Specifically, he asserted that he adequately demonstrated both deficient
performance and prejudice and that the district court erred in denying his Petition. In its brief, the
State argued that Padilla does not control this case because it should not be applied retroactively.
However, the State contemplated that, if Padilla does in fact apply, Icanovic’s counsel may have
rendered ineffective assistance by failing to adequately advise him of the immigration
consequences of his plea. Icanovic replied that his conviction was not final on the date Padilla
was issued, and therefore Padilla controlled. In the alternative, Icanovic argued for Padilla to
apply retroactively.
       The issue of Padilla’s application, however, was not squarely decided by this Court.
Instead, at oral argument before the Court, the State acknowledged that its position regarding the
application of Padilla was in error and it considered that Padilla did apply to Icanovic’s
judgment of conviction. This consideration was reduced to writing, and on December 7, 2012,
the State filed an Uncontested Motion for Remand and Statement in Support Thereof.
       This Court granted the State’s Uncontested Motion for Remand, ordering that the matter
be remanded to district court for an evidentiary hearing so that Icanovic can “attempt to prove his
claim of ineffective assistance of counsel for failing to adequately explain the immigration
consequences of his guilty plea.”
       5.      Remand
       On remand, the parties briefed the issue of Icanovic’s ineffective assistance of counsel
claim and the district court held a hearing on June 21, 2013. At the hearing, Icanovic testified
that he was on parole and subject to an immigration hold. Icanovic had allegedly been informed
that federal authorities were actively seeking to deport him. Icanovic testified that the only
reason he had not been deported as of the date of the hearing was confusion regarding his place
of birth and the fact that neither Croatia nor Bosnia were prepared to accept him. Next, the State
called ICE supervisory detention deportation officer Brandon Jones (Jones) as a witness. Jones
testified generally to the federal government’s immigration and deportation procedures and also
specifically stated that if an alien like Icanovic was given advice that a conviction for an
aggravated felony might or might not result in their actual deportation such advice would be
accurate. These were the only two witnesses called at the evidentiary hearing. The district court


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heard argument following this testimony and ultimately took under advisement the issues of
whether Martens provided Icanovic with constitutionally ineffective assistance and whether
Icanovic suffered prejudice as a result.
       On August 5, 2013, the district court issued a written order addressing Icanovic’s
ineffective assistance of counsel claim. In its order, the district court made certain pertinent
findings of fact and conclusions of law. First, and in reconciling the inconsistencies between the
testimony of Icanovic and Martens, the district court found Martens to be more credible. It
stated: “[S]pecifically, this [c]ourt finds that Mr. Martens did in fact advise Mr. Icanovic that if
he chose to plead guilty, it was possible he could be deported and that there could be adverse
impacts on his ability to obtain United States citizenship.” Second, even if Martens had not
advised Icanovic that he may face immigration consequences, the district court again found that
its advisory to Icanovic during the plea colloquy cured this defect. Third, the court was
persuaded by Icanovic’s affirmation that he understood the potential consequences of pleading
guilty. Fourth, the court was influenced by the testimony of the ICE officer that the advice given
by Martens to Icanovic concerning any possible deportation and citizenship consequences, along
with the court’s warnings during the plea hearing, were all “factually accurate in light of the
relevant statutes, rules, and ICE practices and procedures.”
       For these reasons, the court found that Martens’s advice to Icanovic regarding the
immigration consequences of his plea was not deficient. The district court was persuaded by the
testimony that the heightened obstacles encountered when dealing with deportations to Bosnia
and Croatia rendered the likelihood of Icanovic’s actual removal from the United States fairly
low. The district court also reasoned that the term “deportable” as found in the applicable federal
immigration statute renders a party eligible for deportation but does not require it. For all of
these reasons, the court found that the first Strickland prong—deficient performance by
counsel—was not met.
       Turning to the second Strickland prong—whether any prejudice was suffered as a result
of the deficient performance—the district court found that Icanovic suffered no prejudice as a
result of the immigration-related advice given to him. In so finding, the court was influenced by
the “overwhelming” amount of evidence against Icanovic, the difference between the maximum
penalties faced by Icanovic under the offenses as originally charged and the lesser offense to
which he pleaded, and “the admissions [Icanovic] has already made in entering his guilty plea.”


                                                 5
The court reasoned that this was not a typical “he said, she said” case of domestic violence
because physical evidence corroborated the accounts of the attack and an uninvolved third-party
witness gave a detailed account to police of some of the events. Based on an examination of the
evidence, the court found “even had [Icanovic] rejected the [S]tate’s plea offer and proceeded to
trial, it is overwhelmingly likely that he would be in the same, or likely a worse, position with
respect to his sentence and immigration and citizenship status than he is today.” For these
reasons, the district court again found on remand that Icanovic’s ineffective assistance of counsel
claim fails.
        6.     Second Appeal to this Court
        Icanovic appeals the district court’s denial on remand of his Petition, arguing that the
State previously conceded the deficient performance prong, and that the court incorrectly applied
both the deficient performance and prejudice prongs. Icanovic maintains that, but for Martens’s
advice regarding the immigration consequences of his guilty plea, he would not have pled guilty
to felony domestic violence. He contends that Martens’s advice constituted deficient
performance and that the district court’s warnings did not cure the deficiency. As to the prejudice
prong, Icanovic asserts that the pertinent inquiry is whether, but for the deficient advice, he
would have pled guilty or instead would have proceeded to trial—the inquiry does not examine
the likely result at trial. Further, Icanovic disputes the evidence relied upon by the district court
in finding no prejudice. He takes specific issue with the court’s reliance on the statements and
admissions he made during his plea hearing, arguing such statements are not admissible in any
future trial. The State argues that the district court correctly applied Strickland and Padilla to the
facts of this case, and that the court’s denial of post-conviction relief should be affirmed.
                                       III. ISSUE ON APPEAL
1.      Whether the district court erred in dismissing Icanovic’s petition for post-conviction
        relief alleging that he received ineffective assistance of counsel.
                                    IV. STANDARD OF REVIEW
               Post-conviction proceedings are civil in nature and therefore the
        applicant’s allegations must be proven by a preponderance of the evidence. When
        appellate review of a district court’s denial of post-conviction relief follows an
        evidentiary hearing, rather than a summary dismissal, the evidence must be
        viewed most favorably to the trial court's findings. On review, this Court will not
        disturb the district court’s factual findings unless they are clearly erroneous.
        However, this Court exercises free review of the district court’s application of the
        relevant law to the facts. If a district court reaches the correct result by an

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           erroneous theory, this Court will affirm the order upon the correct theory.
           Additionally, constitutional issues are pure questions of law over which this Court
           exercises free review.

Murray v. State, 156 Idaho 159, 163–64, 321 P.3d 709, 713–14 (2014) (internal
quotations and citations omitted).
                                                  V. ANALYSIS
           Icanovic brings his Petition on the ground that his trial counsel gave insufficient advice
regarding the immigration and citizenship consequences of a guilty plea. “The right to counsel in
criminal actions brought by the state of Idaho is guaranteed by the Sixth Amendment to the
United States Constitution and Article 1, Section 13 of the Idaho State Constitution.” McKay v.
State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010). “A claim of ineffective assistance of
counsel may properly be brought under the post-conviction procedure act.” Booth v. State, 151
Idaho 612, 617, 262 P.3d 255, 260 (2011). Such a claim is governed by the Strickland test,
wherein a defendant must show that the attorney’s performance was deficient and that the
defendant was prejudiced by the deficiency. McKeeth v. State, 140 Idaho 847, 850, 103 P.3d 460,
463 (2004); Strickland v. Washington, 466 U.S. 668, 687 (1984). The Strickland standard applies
to advice regarding plea bargains as defendants are entitled to “the effective assistance of
competent counsel” in considering a plea deal. Padilla v. Kentucky, 559 U.S. 356, 364 (2010).
           In Chaidez v. United States, ___ U.S. ___, 133 S.Ct. 1103 (2013), the United States
Supreme Court held that it “announced a new rule in Padilla. Under Teague [v. Lane, 489 U.S.
288 (1989)], defendants whose convictions became final prior to Padilla therefore cannot benefit
from its holding.” Id. at ___, 133 S.Ct. at 1113. The judgment of conviction in Icanovic’s case
was entered on September 4, 2009. The district court sentenced him to eight years in the custody
of the Idaho Board of Correction, with three years fixed and five years indeterminate, and it
retained jurisdiction. On February 19, 2010, the district court entered an order suspending
Icanovic’s sentence and placing him on probation for 10 years.                       On March 31, 2010, the
Supreme Court released Padilla v. Kentucky. On April 2, 2010, the time for Icanovic to appeal
his judgment of conviction expired, pursuant to the version of Idaho Appellate Rule 14(a) then in
effect.1

1
  The version of Idaho Appellate Rule 14(a) then in effect stated: “In a criminal case, the time to file an appeal is
enlarged by the length of time the district court actually retains jurisdiction pursuant to Idaho Code. When the court
releases its retained jurisdiction or places the defendant on probation, the time within which to appeal shall
commence to run.” I.A.R. 14(a) (2007). Under the current version of the rule, Padilla would not apply to this case

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        In this case, the district court came to the correct conclusion regarding whether Icanovic
received ineffective assistance of counsel. For the reasons outlined below, the dismissal of
Icanovic’s petition for post-conviction relief is affirmed.
        A defendant alleging ineffective assistance of counsel must show both deficient
performance by counsel and prejudice from that deficiency; failing to prove either prong
individually or both will defeat a claim of ineffective assistance of counsel. See Strickland, 466
U.S. at 687. To establish prejudice resulting from his or her attorney’s performance, a defendant
must show “that as a result of counsel’s deficient performance ‘there is a reasonable probability
that, but for counsel’s errors, he would not have [pled] guilty and would have insisted on going
to trial.’” Ridgley v. State, 148 Idaho 671, 676, 227 P.3d 925, 930 (2010) (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)). Such a defendant must “convince the court that a decision to
reject the plea bargain would have been rational under the circumstances. Padilla, 559 U.S. at
372. Icanovic has failed to establish prejudice resulting from his attorney’s performance in this
case.
        In his affidavit associated with his petition for post-conviction relief, Icanovic asserted:
                6) Prior to entering my plea of guilty, I specifically asked Mr. Martens if
        my guilty plea and/or conviction would result in me being deported to Bosnia.
        Mr. Martens advised me that it would not.
                7) Prior to entering my guilty plea, I specifically asked Mr. Martens if my
        guilty plea and/or conviction would result in me losing my ability to apply for
        United States citizenship. Mr. Martens advised me that it would not.
                ....
                12) But for Mr. Martens’ advisement, I would not have plead guilty.

        On January 19, 2011, there was an evidentiary hearing in the post-conviction proceeding.
Icanovic did not testify at that hearing, but Martens did. With respect to Icanovic’s assertion that
Martens had told him he would not be deported if he pled guilty, Martens testified that such
assertion was false. He testified that in his discussions with Icanovic about whether he would be
deported, he would have said he did not know. With respect to Icanovic’s assertion that Martens
stated he would not lose his ability to apply for citizenship, Martens testified that he did not
recall any such discussion, but he would not have given advice on that subject because he did not


because Icanovic’s conviction would have become final prior to the issuance of that opinion. Under the current rule,
when a district court enters a judgment of conviction and retains jurisdiction, an appeal challenging the judgment
(excluding the sentence) must be brought within forty-two days of the filing of the judgment. I.A.R. 14(a)(2011).

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know that area of law. The transcript of Icanovic’s guilty plea hearing was also admitted during
the first hearing. At the second evidentiary hearing held on June 21, 2013, he testified, but not
about his guilty plea. Instead, his prior affidavit was admitted into evidence.
       After the second hearing, the district court found that Martens was more credible than
Icanovic. The court specifically found that “Mr. Martens did in fact advise Mr. Icanovic that if
he chose to plead guilty, it was possible he could be deported and that there could be adverse
impacts on his ability to obtain United States citizenship.”
       The district court took into consideration the entire record and found that Icanovic had
failed to meet his burden of establishing prejudice. At the change-of-plea hearing, the district
court had Icanovic sworn to tell the truth and then questioned him about his decision to plead
guilty. The questioning included:
       Q. Do you understand the nature of the charge against you and the possible
       penalties that can be imposed as a result of your guilty plea?
       A. Yes.
       Q. Do you understand that there are other consequences to you of a plea of guilty
       to a felony charge?
       A. Yes.
       Q. Do you understand that if you are not a citizen of the United States that your
       plea of guilty to a felony or even a misdemeanor may result in deportation, the
       inability to obtain legal status, or denial of an application for United States
       citizenship?
       A. Yes.
       ....
       Q. Are you pleading guilty just to get it over with even though you believe you
       are innocent?
       A. No.
       ....
       Q. And why did you decide to plead guilty today?
       A. Because I am guilty.
       ....
       Q. And has your attorney advised you to your satisfaction of your rights, your
       defenses, and the possible consequences to you of the guilty plea?
       A. Yes.
       Q. Are you satisfied with your attorney’s representation of you in this matter?
       A. Yes.
       ....
       Q. Can you tell me then in your own words what you did to be guilty of this
       offense?
       A. I know that I did domestic battery to my girl and I do know that I plead guilty
       and I do know that I shouldn’t have done that.

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       Q.   And did you in fact strike her; is that correct?
       A.   What was that?
       Q.   Did you in fact hit her?
       A.   I did.
       Q.   And did you in fact push her to the ground when that occurred?
       A.   I did.

       Icanovic’s petition for post-conviction relief was based upon his false assertion that his
counsel had told him that he would not be deported and would not lose his ability to apply for
citizenship if he pled guilty. The facts, as found by the district court, were that Icanovic was
advised by his counsel that if he accepted the plea agreement and pled guilty to the reduced
charge, he could possibly be deported and there could be an adverse impact upon his ability to
obtain citizenship. With that knowledge, he pled guilty in order to take advantage of the plea
bargain.
       The district court wrote that Icanovic asserted that “if Mr. Martens had more strongly
cautioned him about the possible immigration consequences of entering a plea of guilty to the
reduced charge of Domestic Violence, he would have rejected the plea agreement and gone to
trial on the original, more serious felony of Attempted Strangulation.”           That assertion by
Icanovic is not supported by the evidence in the record. As stated above, he based his post-
conviction petition solely upon the false assertion that he pled guilty because he was advised by
his counsel that he would not be deported. He did not state in his affidavit that he would not have
pled guilty had his counsel more strongly cautioned him about the possibility of being deported.
The district court correctly stated that it did not have to accept Icanovic’s assertion. As stated in
Padilla, “There is no reason to doubt that lower courts—now quite experienced with applying
Strickland—can effectively and efficiently use its framework to separate specious claims from
those with substantial merit.” Id. at 372. The district court found important that with knowledge
that the conviction “could result in his deportation, inability to obtain legal status or denial of an
application for United States citizenship, Mr. Icanovic stated under oath that he understood these
potential consequences of pleading guilty.”
       In its opinion, the district court also cited the certainty of conviction based upon factual
assertions made in the State’s prehearing brief. Those facts were not admitted at the evidentiary
hearing. However, Icanovic testified during the change-of-plea hearing that he was pleading



                                                 10
guilty because he was guilty, and he briefly testified as to why he was guilty of the charge, which
the district court noted.
        The district court concluded, “In short, the Court concludes that even if the petitioner was
misadvised under Padilla, he suffered no prejudice as a result.” That conclusion is supported by
evidence in the record. Icanovic is unable to show prejudice from his attorney’s advice because
the trial court found as a matter of fact that the advice Icanovic complains of did not occur.
Because Icanovic is unable to show that he was prejudiced by his attorney’s advice, it is
unnecessary to address whether that advice was deficient. Icanovic has failed to establish
ineffective assistance of counsel.
                                         VI. CONCLUSION
        The dismissal of Icanovic’s petition for post-conviction relief is affirmed. Costs on
appeal are awarded to the respondent.


        Chief Justice J. JONES, Justices ESIMANN, BURDICK and HORTON, CONCUR.




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