                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0378
                               Filed March 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALI ABDELKARIM ALI,
      Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Johnson County, Sean W.

McPartland (guilty plea) and Ian K. Thornhill (sentencing), Judges.



      A defendant appeals his burglary conviction, contending he was

prejudiced by faulty advice from counsel about the immigration consequences of

his guilty plea. CONVICTION AND SENTENCE VACATED; CASE REMANDED

WITH DIRECTIONS.



      John J. Bishop, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.

       Syrian-born Ali Abdelkarim Ali appeals his conviction for burglary in the

second degree, contending his attorney misinformed him regarding the adverse

immigration consequences of pleading guilty and his plea was driven by a false

hope that a deferred judgment offered a chance to avoid removal from the United

States.   Because the State does not dispute Ali received misinformation, we

consider only whether he suffered prejudice. Finding “a decision to reject the

plea bargain would have been rational under the circumstances,” we vacate Ali’s

guilty plea and remand for further proceedings.

   I. Facts and Prior Proceedings

       The State charged Ali and three codefendants with attempt to commit

murder and robbery in the first degree in connection with a shooting at a

Coralville residence on June 22, 2015.        The State alleged “Ali helped the

defendants gain access to a residence; then the defendants rushed into that

residence demanding to know ‘where’s it at?’” “It” referred to marijuana they

planned to steal, according to the minutes of evidence. After rushing into the

residence, one of Ali’s codefendants fired a .40 caliber pistol, striking a victim in

the hip, “causing a through-and-through bullet wound.” The State expected to

offer testimony that “[t]he defendants all then fled the house, taking several cell

phones; several of the victims scattered as well.”

       Ali was eighteen years old at the time of the crime and a legal permanent

resident of the United States. After being charged with two class “B” felonies, Ali

struck a bargain with the State, agreeing to plead guilty to burglary in the second

degree, a class “C” felony, in violation of Iowa Code sections 713.1 and
                                            3


713.5(1)(b) (2015), in return for dismissal of the attempted murder and robbery

counts.

       On the day of the plea hearing, defense counsel filed a document entitled

“Citizenship Addendum to Plea of Guilty” in which counsel outlined the detailed

advice he provided Ali concerning the “deportation or other adverse immigration

consequences” of the plea to second-degree burglary. At issue is the following

passage: “I have advised the Defendant if he receives a deferred judgment at the

open sentencing in the above-captioned matter this scenario provides the best

opportunity to avoid deportation.” The addendum also stated that in making his

guilty plea, Ali was “relying on undersigned counsel’s advice regarding the

immigration consequences.”          Counsel asserted the addendum was filed

“pursuant to Iowa Rule of Criminal Procedure 2.8(2)(b)(5) and Padilla v.

Kentucky.”1

       According to the presentence investigation (PSI) report, Ali’s parents

brought him to the United States when he was five years old.                 Ali’s father

described his son as “a follower” whose friends were “a problem for him.” Ali’s

mother believed Ali’s co-defendants “would have killed him if he had not

cooperated with them.” In recommending prison, the author of the PSI report

pointed to Ali’s prior juvenile-delinquency adjudications and the need to protect

the public from violent crime.
1
  “[R]ecent developments in the law regarding a defendant’s right to effective assistance
of counsel recognize that lawyers representing criminal defendants must advise their
clients whether their pleas carry a risk of deportation.” State v. Hernandez-Galarza, 864
N.W.2d 122, 126 (Iowa 2015) (citing Padilla v. Kentucky, 559 U.S. 356, 374–75 (2010)).
“In Padilla, the Supreme Court of the United States held that a criminal defendant who
pled guilty to drug charges received constitutionally deficient assistance of counsel when
his lawyer failed to advise him of a serious consequence—deportation—that would
automatically occur because of his conviction.” Id. (citation omitted).
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      In a sentencing memorandum, defense counsel asserted Ali was born in

Syria to Sudanese immigrants “who were affiliated with the Republican

Brotherhood movement in Sudan.” Counsel explained:

      The Republican Brotherhood was a liberal reform movement that
      called for greater equality for women and non-Muslims. Eventually
      the leader of the movement, Mahmud Muhammad Taha, was
      executed after opposing the imposition of Sharia law, and many of
      its members, including Ali’s parents, fled Sudan. Ali’s parents fled
      first to Syria, where he was born, and then eventually ended up in
      the United States. Ali’s parents settled in Iowa City where he
      attended school, eventually graduating from Iowa City West High
      School. While Ali’s parents eventually became U.S. citizens, Ali
      remains a legal permanent resident.

In the memo, counsel repeated his belief regarding the adverse immigration

consequences: “A deferred judgment provides him the best opportunity to avoid

deportation. If deported, the Defendant could be sent back to Sudan or Syria,

both of which are unstable and dangerous at the present time.”

      The sentencing court received thirty-three letters supporting Ali from

members of the Sudanese-American community both in Johnson County and

across the country. One letter noted the journey to the United States was difficult

for Ali’s parents because “they were persecuted for their religious and political

beliefs in Sudan.” Many of the letter writers had known Ali since he was a young

child and discussed his close relationship with his parents.

      At the sentencing hearing, the State stipulated Ali was eligible for a

deferred judgment but recommended incarceration based on Ali’s history of

breaking the law. The prosecutor reasoned: “Community affection and potential

immigration consequences are powerful things, but obviously not powerful

enough to influence Mr. Ali’s behavior.” Defense counsel asked the court to
                                        5


defer judgment based on Ali’s youth, his community support, and the immigration

consequences. Counsel urged: “I can’t think of a more powerful deterrent factor

than the possibility of being deported back to either the Sudan or Syria, two of

which are potentially the most volatile, dangerous places on the face of the

planet right now.” In his allocution, Ali apologized for “being a young, dumb

teenager with selfish ways and immature schemes.”

      In rejecting Ali’s request for a deferred judgment, the district court noted

Ali received a deferred judgment on a theft charge in November 2014 and was

on probation at the time of the current offense. The court sentenced Ali to an

indeterminate ten-year prison term.

      Ali now appeals.

   II. Error Preservation and Standard of Review

      Failure to file a motion in arrest of judgment normally prevents a defendant

from contesting his guilty plea on appeal. Iowa R. Crim. P. 2.8(2)(d). But Ali

brings his challenge as an ineffective-assistance-of-counsel claim, which stands

as an exception to the normal rules of error preservation.         See State v.

Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We postpone the resolution of

such claims until they can be heard in postconviction proceedings unless the

parties provide a satisfactory record on direct appeal so that we can draw a

conclusion about the constitutionality of counsel’s performance. See id. In this

case, we find the record adequate to resolve the issue.

      Because Ali is entitled to effective assistance of counsel under the Sixth

Amendment, we review his claim de novo. See id. To succeed, he must show

by a preponderance of the evidence that (1) counsel failed to perform an
                                        6

essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S.

668, 687 (1984).     Unless Ali can make both showings, we cannot find his

conviction resulted “from a breakdown in the adversary process that renders the

result unreliable.” See id.

       In a guilty-plea case, the prejudice element “focuses on whether counsel’s

constitutionally ineffective performance affected the outcome of the plea

process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). To satisfy the prejudice

requirement under Hill, Ali must show a reasonable probability exists that, but for

counsel’s faulty advice, he would not have pleaded guilty and would have

insisted on going to trial. See id.; see also State v. Straw, 709 N.W.2d 128, 138

(Iowa 2006).

       In an immigration-consequences case, the prejudice showing requires an

allegation that rejecting the plea “would have been rational under the

circumstances.” Padilla, 559 U.S. at 372. The test is not whether the defendant

ultimately would have been convicted following a trial but, rather, whether a

reasonable probability exists that, but for counsel’s error, the defendant would

have insisted on going to trial. See People v. Morones-Quinonez, 363 P.3d 807,

811 (Colo. App. 2015) (explaining “the strength of the evidence against the

defendant may not be as probative of rationality as it would be in a

nonimmigration case”); Sial v. State, 862 N.E.2d 702, 706 (Ind. Ct. App 2007)

(relying on facts that defendant had been living in United States for twenty years

and had a wife and United States-citizen daughter to find he would have forgone

plea and proceeded to trial).
                                           7


    III. Analysis

       Ali asks us to find he received ineffective assistance of counsel in the

guilty-plea proceedings, which resulted in his plea being involuntary and

unintelligent. As a remedy, he seeks a reversal of his conviction and remand for

further proceedings.

       Ali starts with the duty prong, asserting his plea counsel provided

inaccurate advice concerning the possibility of removal flowing from a deferred

judgment following adjudication for burglary in the second degree. Ali points out,

under the Immigration and Nationality Act (INA), burglary second constituted an

“aggravated felony,” 8 U.S.C. § 1101(a)(43)(G), and a lawful permanent resident2

convicted of an aggravated felony is subject to removal from the United States,

see id. § 1227(a)(2)(A)(iii). Ali further argues that under federal law, the term

“conviction” includes instances where a noncitizen enters a guilty plea even when

adjudication of guilt has been withheld, if the judge has imposed some form of

penalty or restraint on the noncitizen’s liberty.         See id. § 1101(a)(48)(A).

According to Ali’s argument, a deferred judgment under Iowa Code section 907.3

falls into the category of a “conviction” for purposes of federal immigration law.3




2
  A lawful permanent resident is an immigrant residing permanently in the United States,
but who has not yet become a naturalized citizen. 8 U.S.C. § 1101(a)(20). The
documentation provided to the immigrant showing his status as a lawful permanent
resident is commonly known as a “green card.” See Zemene v. Clarke, 768 S.E.2d 684,
686 n.1 (Va. 2015).
3
   Our supreme court examined a similar scenario involving the deportation
consequences of a deferred judgment in Hernandez-Galarza, 864 N.W.2d at 126
(“Hernandez-Galarza now alleges that after receiving a deferred judgment he became
ineligible for cancellation of removal proceedings under federal immigration law because
he no longer qualifies for the petty-offense exception. As such, he asserts he is subject
to removal from the United States.” (citations omitted)).
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As a result, Ali contends plea counsel provided misinformation in advising him

that a deferred judgment provided “the best opportunity to avoid deportation.”

      On the prejudice prong, Ali argues, as a result of being misadvised by

counsel, he believed his “only option to avoid deportation to Syria or Sudan was

to plead guilty to an ‘aggravated felony’ and try for a deferred judgment.” Ali

asserts he “grasped at the chance” and was prejudiced as a result.

      The State does not dispute Ali’s interpretation of the INA, nor does the

State defend plea counsel under the duty prong of Strickland.4 See Padilla, 559

U.S. at 368–69 (stating “when the deportation consequence is truly clear, [then]

the duty to give correct advice is equally clear”). Instead, the State concentrates

on the prejudice prong, arguing “even if trial counsel breached an essential duty

by giving    the   defendant   inaccurate    information   about   the deportation

consequences of his guilty plea, the defendant cannot show ‘a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.’” The State highlights Ali’s knowledge that

he was not guaranteed to receive a deferred judgment and lists the beneficial

aspects of the plea bargain as to charging concessions and potential prison time.

      The State’s position might hold more sway in an ordinary guilty-plea case,

but it overlooks the extra considerations in a case governed by the prejudice


4
  This case differs from cases where this court has preserved the issue for
postconviction actions. In those cases, we did not have an adequate record to
determine what advice counsel gave the defendant concerning the immigration
consequences of a guilty plea. See, e.g., State v. Rodriguez, No. 16-0286, 2016 WL
6902774, at *1 (Iowa Ct. App. Nov. 23, 2016); State v. Porte, No. 15-1159, 2016 WL
3556451, at *1 (Iowa Ct. App. June 29, 2016); State v. Cantarero, No. 12-1694, 2013
WL 3274219, at *2 (Iowa Ct. App. June 26, 2013); State v. Dzopa, No. 12-0780, 2013
WL 264333, at *4 (Iowa Ct. App. Jan. 24, 2013); State v. Callejas-Solorzano, No. 10-
1189, 2011 WL 2112429, at *2 (Iowa Ct. App. May 25, 2011).
                                          9

calculation from Padilla. In Padilla, the Supreme Court recognized “[p]reserving

the client’s right to remain in the United States may be more important to the

client than any potential jail sentence.” Id. at 368 (alteration in original) (citation

omitted).     But for plea counsel’s misinformation concerning the immigration

implications of a deferred judgment, Ali would have had two options to weigh:

(1) risk removal to Syria or the Sudan based on any plea of guilty versus (2) go to

trial with the chance—however slim—of being acquitted and not facing removal

from the United States. Given these stark options, we find it would have been

rational under the circumstances for Ali to reject the State’s plea offer. See id. at

372 (expressing confidence that courts experienced in applying Strickland

prejudice can use this new framework to separate “specious claims from those

with substantial merit”); Morones-Quinoez, 363 P.3d at 810 (stating “in the

context of a decision to forgo a guilty plea based on immigration considerations,

the defendant need only make some showing that the decision would have been

rational”).

       In evaluating a proposed plea offer, “a noncitizen defendant confronts a

very different calculus than that confronting a United States citizen.”

Commonwealth v. Lavrinenko, 38 N.E.3d 278, 293 (Mass. 2015) (“A defendant

may fervently desire to remain in the United States because of the depth and

quality of the roots he or she has planted in this country.” (citation omitted)); see

also People v. Kazadi, 284 P.3d 70, 75 (Colo. App. 2011) (noting defendant’s

“personal circumstances and lack of ties to the Congo support his assertion that

he would not have pleaded guilty had he received the advice that he was

constitutionally entitled to receive”); People v. Amad, No. 1-14-0612, 2016 WL
                                        10


3574365, at *9 (Ill. App. Ct. June 30, 2016) (holding that because a “long-time

resident of this country with family ties here may be prejudiced by his counsel’s

failure to inform him of the deportation consequences of his guilty plea, even if he

likely would have been convicted at trial and given a longer prison sentence than”

the guilty-plea sentence, such “a person may rationally decide to reject a plea

agreement and go to trial even where the evidence is against him, as long as

there is even the slightest chance he may prevail at trial and avoid being

deported away from his family, friends, and country”).

       On appeal, Ali argues he would not have entered a guilty plea had he

known his plea offered no option of avoiding removal to Syria or the Sudan.

While Ali did not have an opportunity to present evidence at a hearing on the

issue of prejudice, the plea and sentencing record includes background

information about his status as a legal permanent resident; his integration into

the Iowa City community during his entire youth (ages five to eighteen); the flight

of his political-refugee parents, now naturalized U.S. citizens, from the Sudan to

Syria; and the current unrest and instability in those countries of origin. None of

this information was disputed by the State in the district court or on appeal. See

Padilla, 559 U.S. at 372 (discussing requirement that rejecting the plea “would

have been rational under the circumstances”). Based on this specific factual

scenario, we find Ali has established prejudice under Padilla and Strickland.

Because Ali received ineffective assistance of counsel, rendering his plea

involuntary and unintelligent, we set aside the judgment and sentence in the
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guilty-plea proceeding and remand for further proceedings to allow Ali to plead

anew. See State v. Kress, 636 N.W.2d 12, 21 (Iowa 2001).

      CONVICTION AND SENTENCE VACATED; CASE REMANDED WITH

DIRECTIONS.
