              IN THE SUPREME COURT OF IOWA
                              No. 16–1619

                           Filed May 25, 2018


GUILLERMO HERNANDEZ RUIZ,

      Appellee,

vs.

STATE OF IOWA,

      Appellant.


      Appeal from the Iowa District Court for Polk County, Lawrence P.

McLellan, Judge.



      The State appeals the district court’s grant of postconviction relief

based on a finding of ineffective assistance of counsel. DISTRICT COURT

JUDGMENT REVERSED AND CASE REMANDED.



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

Attorney General, John P. Sarcone, County Attorney, and Kevin Hathaway,
Assistant County Attorney, for appellant.



      Margaret A. Hanson and Nichole Miras Mordini of Davis, Brown,

Koehn, Shors & Roberts, P.C., Des Moines, for appellee.
                                            2

MANSFIELD, Justice.

      This case presents the question whether bad advice from an

immigration attorney to a client to try to get a driver’s license, which

triggered a criminal investigation and ultimately a conviction of the client

for a previously committed fraudulent practice, can be grounds under the

Sixth Amendment or article I, section 10 for setting aside that conviction.

As discussed herein, we conclude that no right to counsel had attached

when the client went to the driver’s license station. This was before any

investigation or criminal proceedings had begun. Accordingly, we reverse

the district court ruling that granted postconviction relief to the client and

remand for further proceedings consistent with this opinion.

      I. Facts and Proceedings.

      Guillermo Hernandez Ruiz is a native and citizen of Mexico. He

entered the United States without permission in November of 1999. After

entering the United States, Hernandez Ruiz obtained vehicle titles in his

name using a false social security number that did not belong to him.

      On November 3, 2010, the Department of Homeland Security

initiated removal proceedings against Hernandez Ruiz based on section

212(a)(6)(A)(i) of the Immigration and Nationality Act.                See 8 U.S.C.

§ 1182(a)(6)(A)(i) (2006 & Supp. III 2009). 1 Hernandez Ruiz hired attorney

Michael Said to represent him in the removal proceedings.


      1This   subsection provides as follows:
      (a) Classes of aliens ineligible for visas or admission
         Except as otherwise provided in this chapter, aliens who are
      inadmissible under the following paragraphs are ineligible to receive visas
      and ineligible to be admitted to the United States:
         ....
         (6) Illegal entrants and immigration violators

               (A) Aliens present without admission or parole
                                              3

       On February 28, 2011, Said filed an application for cancellation of

removal with the United States Citizenship and Immigration Service (CIS)

on Hernandez Ruiz’s behalf, indicating that Hernandez Ruiz had children

who were American citizens who would suffer hardship if he were

deported. See id. § 1229b(b)(1). 2 CIS received the application on March

1.   As a result, Hernandez Ruiz was able to obtain an Employment

Authorization Document (EAD) and valid social security number.

       That day, Hernandez Ruiz went to the Ankeny driver’s license station

of the Iowa Department of Transportation (DOT) and attempted to use his


                    (i) In general
                         An alien present in the United States without being
                    admitted or paroled, or who arrives in the United States at any
                    time or place other than as designated by the Attorney General,
                    is inadmissible.
8 U.S.C. § 1182(a)(6)(A)(i).
       2This   subsection provides as follows:
       (b) Cancellation of removal and adjustment of status for certain
       nonpermanent residents
           (1) In general
               The Attorney General may cancel removal of, and adjust to the
           status of an alien lawfully admitted for permanent residence, an alien
           who is inadmissible or deportable from the United States if the alien—
                    (A) has been physically present in the United States for a
                continuous period of not less than 10 years immediately preceding
                the date of such application;
                    (B) has been a person of good moral character during such
                period;
                     (C) has not been convicted of an offense under section
                1182(a)(2) [includes conviction of a crime of moral turpitude],
                1227(a)(2) [includes conviction of a crime of moral turpitude], or
                1227(a)(3) [failure to register and falsification of documents] of this
                title, subject to paragraph (5); and
                    (D) establishes that removal would result in exceptional and
                extremely unusual hardship to the alien’s spouse, parent, or child,
                who is a citizen of the United States or an alien lawfully admitted
                for permanent residence.
8 U.S.C. § 1229b(b)(1).
                                         4

EAD and social security number to get a driver’s license. Before doing so,

Hernandez Ruiz met with Said at Said’s law office. At that time, Said

explained that the EAD and the social security number enabled Hernandez

Ruiz to obtain a driver’s license and if he wanted to drive, he had to have

a license. Said did not inquire if Hernandez Ruiz had previously registered

vehicles with a fraudulent social security number or advise of the risk that

the DOT would discover prior fraudulent titling even though he was aware

of this risk. Additionally, Said did not inform Hernandez Ruiz that he did

not need a license if he wasn’t going to be driving. In fact, Said testified

he likely instructed Hernandez Ruiz to get a license. 3

       When Hernandez Ruiz presented his documentation at the Ankeny

driver’s license station, a clerk ran it through the system and found that

vehicles had been titled under the same name and date of birth but with

a different social security number. Hernandez Ruiz admitted to the clerk

that he had previously titled and registered vehicles under a different

social security number. The clerk copied Hernandez Ruiz’s documents

and tried to get hold of a DOT investigator but was unable to do so at that

time. She sent Hernandez Ruiz away without a driver’s license and turned

over the materials to an investigator a few minutes later.
       Meanwhile, Hernandez Ruiz spoke to Said about what had

happened. Said advised him that he had three options: (1) go back to the

DOT by himself and risk being charged with a felony; (2) have Said contact

a DOT investigator and then return to the DOT with Said, where he would

be charged with an aggravated misdemeanor (which would be pled down

to a serious misdemeanor); or (3) consult with another attorney. Said did

       3Hernandez Ruiz had been cited several times in 2009 and 2010 for driving

without a license. In October 2010, he had been convicted of driving while under
suspension or revocation. Since then, according to his testimony, he had been getting
rides and not driving himself.
                                     5

not advise Hernandez Ruiz that he was not obligated to return to the DOT

or obtain a driver’s license. Hernandez Ruiz elected to have Said contact

DOT Investigator Don Sharr and set up a time for the three of them to

meet. On March 2, Hernandez Ruiz completed a fee contract with Said for

this representation.

      On March 9, Hernandez Ruiz and Said met with Investigator Sharr

at the DOT.    During the meeting, Hernandez Ruiz signed a voluntary

statement admitting several instances of registering cars under a false

social security number.     Because of Hernandez Ruiz’s candor, Sharr

decided to charge Hernandez Ruiz with one count of fraudulent practices

in the third degree in violation of Iowa Code section 714.11, an aggravated

misdemeanor.     See Iowa Code § 714.11 (2011).          Said represented

Hernandez Ruiz in his criminal case. On June 1, 2012, Hernandez Ruiz

pled guilty to the lesser included offense of fraudulent practices in the

fourth degree, a serious misdemeanor. See id. § 714.12. Hernandez Ruiz

received a 180-day sentence, which was suspended, and was required to

perform fifty hours of community service.

      As a result of this conviction, on September 6, 2013, the Department

of Homeland Security filed a motion to pretermit Hernandez Ruiz’s

application for cancellation of removal, urging that fraudulent practices in

the fourth degree was a crime involving moral turpitude rendering

Hernandez Ruiz ineligible for relief.    See 8 U.S.C. § 1229b(b)(1).    The

immigration court agreed.     Consequently, Hernandez Ruiz once again

faced deportation.

      Hernandez Ruiz retained new counsel and filed an application for

postconviction relief on May 29, 2015, alleging he had received ineffective

assistance of counsel from Said. The case went to trial on May 31, 2016.
                                             6

On August 29, the district court granted Hernandez Ruiz’s application and

vacated and set aside his guilty plea and sentence. The court found that

       Said breached his essential duty to inform [Hernandez] Ruiz
       that he did not need to obtain a driver’s license and explain to
       him that he could be charged with a crime knowing that the
       DOT was investigating matters of this sort and that the charge
       could have an adverse impact on his immigration status. His
       failure to provide this advice placed [Hernandez] Ruiz into a
       situation resulting in the initiation of criminal proceedings.[4]

The court also rejected the State’s argument that the right to counsel had

not attached. The State appealed, and we retained the appeal.

       II. Standard of Review.
       Our review of postconviction-relief proceedings is typically for

correction of errors at law. Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017);

see Iowa R. App. P. 6.907.           But when we are reviewing an ineffective-

assistance-of-counsel claim, we do so de novo because such claims are

constitutional in nature. Diaz, 896 N.W.2d at 727; Millam v. State, 745

N.W.2d 719, 721 (Iowa 2008).

       III. Analysis.

       The State seeks reversal of the district court’s ruling on the ground

that no constitutional right to counsel had attached at the time of Said’s
alleged ineffective assistance. See State v. Dudley, 766 N.W.2d 606, 617

(Iowa 2009) (“Without a right to counsel, [a defendant] also has no

commensurate right to effective assistance from that counsel.” (Alteration

in original.) (quoting White v. Schotten, 201 F.3d 743, 752 (6th Cir. 2000),

overruled on other grounds by Lopez v. Wilson, 426 F.3d 339, 341 (6th Cir.

2005) (en banc))); see also Wainwright v. Torna, 455 U.S. 586, 587–88, 102

S. Ct. 1300, 1301 (1982) (per curiam) (“Since respondent had no


       4The   district court found a breach of essential duty only with respect to Hernandez
Ruiz’s first trip to the DOT on March 1, not his second.
                                      7

constitutional right to counsel, he could not be deprived of the effective

assistance of counsel by his retained counsel’s failure to file the

application timely.”).   Hernandez Ruiz does not dispute that a right of

counsel must have attached in order for his claim to succeed.

      A. The Sixth Amendment Right to Counsel.                    The Sixth

Amendment provides, “In all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S.

Const. amend. VI. The Supreme Court has held the right “does not attach

until a prosecution is commenced.” Rothgery v. Gillespie County, 554 U.S.

191, 198, 128 S. Ct. 2578, 2583 (2008) (quoting McNeil v. Wisconsin, 501

U.S. 171, 175, 111 S. Ct. 2204, 2207 (1991)). A prosecution commences

at “the initiation of adversary judicial criminal proceedings.” Id. (quoting

United States v. Gouveia, 467 U.S. 180, 188, 104 S. Ct. 2292, 2297 (1984)).

This could be “by way of formal charge, preliminary hearing, indictment,

information, or arraignment.” Id. (quoting Gouveia, 467 U.S. at 188, 104

S. Ct. at 2297).

      The rule is not “mere formalism,” but a recognition of the point
      at which “the government has committed itself to prosecute,”
      “the adverse positions of government and defendant have
      solidified,” and the accused “finds himself faced with the
      prosecutorial forces of organized society, and immersed in the
      intricacies of substantive and procedural criminal law.”

Id. (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 1882 (1972)

(plurality opinion)).    It is immaterial to this analysis whether the

prosecutor is aware of the initial proceeding or involved in its conduct. Id.

at 194–95, 128 S. Ct. at 2581. The Court and the vast majority of states

have determined

      a criminal defendant’s initial appearance before a judicial
      officer, where he learns the charge against him and his liberty
      is subject to restriction, marks the start of adversary judicial
                                       8
      proceedings that trigger attachment of the Sixth Amendment
      right to counsel.

Id. at 213, 128 S. Ct. at 2592; accord id. at 203–04 & n.14, 128 S. Ct. at

2586–87 & n.14 (citing cases and statutes from forty-three states that

“take the first step toward appointing counsel ‘before, at, or just after

initial appearance’ ” (citation omitted)).

      At the time of Hernandez Ruiz’s counsel’s alleged breach, no

prosecution had commenced because no “adversary judicial criminal

proceedings” had been initiated. See id. at 198, 128 S. Ct. at 2583 (quoting
Gouveia, 467 U.S. at 188, 104 S. Ct. at 2297). Hernandez Ruiz had not

been brought before a judicial officer for arraignment. See Iowa R. Crim.

P. 2.8 (Iowa uses arraignments instead of initial appearances.). No charges

had been filed; no criminal investigation had even begun. The core of

Hernandez Ruiz’s argument, in fact, is that Said’s bad advice to go get a

driver’s license triggered a criminal investigation.

      The district court relied on a federal district court case, United States

v. Bowers, 517 F. Supp. 666 (W.D. Pa. 1981), in finding that a Sixth

Amendment right attached here. In Bowers, before the defendant had

been charged, the government informed the defendant’s counsel that the

defendant would be granted “informal immunity from prosecution in

return for her cooperation with the government.” Id. at 669. After counsel

failed to respond to the government’s offer on two occasions, the defendant

was indicted by a grand jury. Id. The court concluded “[i]f counsel fails to

inform his client of a pending proposal, prior to adversary criminal

proceedings, and the client is prejudiced, fairness and due process dictate

relief.” Id. at 671. Because counsel’s failure turned the case into one “of

substantial and continuing prejudice to a defendant who would not

otherwise have been indicted,” the court concluded the appropriate
                                     9

remedy under the Sixth Amendment was dismissing the indictment. Id.

at 672.

      Bowers, however, does not persuade us.       First, Bowers predates

relevant Supreme Court precedents such as Gouveia and Rothgery.

Bowers is a federal district court opinion and does not explicitly analyze

attachment of the Sixth Amendment right to counsel, whereas Gouveia

and Rothgery are Supreme Court opinions squarely addressing the right-

to-counsel attachment issue. See State v. Green, 896 N.W.2d 770, 776

(Iowa 2017) (applying Rothgery and noting no Sixth Amendment right to

counsel had attached because the interview at issue occurred before any

of the formal events listed in Rothgery).

      Second, in Bowers the government had already marshalled its forces

and was ready and going to prosecute if the defendant did not accept its

immunity offer, whereas here, the government had yet to begin any sort of

criminal investigation when Hernandez Ruiz’s counsel allegedly breached

a duty. See 517 F. Supp. at 669.

      For these reasons, we find that no Sixth Amendment right to counsel

had attached at the time Said advised Hernandez Ruiz regarding getting a

driver’s license on March 1, 2011.

      B. The Article I, Section 10 Right to Counsel. The next question

is whether a right to counsel under article I, section 10 had attached.

      We first must decide, however, whether article I, section 10 is

properly before us. Hernandez Ruiz did not mention it in the district court

proceedings. In his postconviction-relief application, Hernandez Ruiz did

put an “X” in the box that stated, “The conviction or sentence was in

violation of the Constitution of the United States or the Constitution or

laws of this state.” He argued that he had received ineffective assistance
                                      10

of counsel. The district court cited both the Sixth Amendment and article

I, section 10 in its ruling, although its analysis did not distinguish the two.

      Under existing precedent, these actions are sufficient to preserve

both claims. See State v. Coleman, 890 N.W.2d 284, 286 (Iowa 2017) (“We

have said that when a party brings a constitutional claim but fails to

identify whether the party is proceeding under the Iowa or the Federal

Constitution, claims under both the Iowa and the Federal Constitutions

are preserved.”). Moreover, the State’s opening brief on appeal treats both

federal and state constitutional grounds as having been preserved. In its

opening brief, the State discusses the right to counsel under article I,

section 10 as well as under the Sixth Amendment.

      Nonetheless, Hernandez Ruiz’s answering brief refers only to the

Sixth Amendment. The two argument headings are explicit about this:

      A. Relevant case law, as well as secondary sources,
      demand a much less rigid interpretation of attachment of
      the Sixth Amendment right to counsel.

      B. Public policy favors an expansion of the Sixth
      Amendment right to counsel, given the devastating
      immigration consequences that counsel’s advice will have
      for Hernandez Ruiz.

      This raises the possibility that any article I, section 10 claim,

although preserved in the district court, has been waived on appeal. The

doctrine of waiver applies to issues not asserted on appeal whereas the

doctrine of error preservation applies to issues not asserted or decided in

the district court. See, e.g., State v. Childs, 898 N.W.2d 177, 190 & n.8

(Iowa 2017) (Hecht, J., dissenting) (“A party does not preserve error on

issues not asserted or decided in the district court but waives an argument

not asserted on appeal.”).

      However, since Hernandez Ruiz is the appellee and article I, section

10 was preserved below, we have discretion to address it and will proceed
                                        11

to do so. “We have discretion to affirm the district court on grounds raised

at trial but not on appeal.” State v. Morris, 858 N.W.2d 11, 17 (Iowa 2015);

accord King v. State, 818 N.W.2d 1, 11 (Iowa 2012). And because the State

discussed article I, section 10 in its own brief, there is no unfairness to the

State.

         Article I, section 10 of the Iowa Constitution provides, “In all criminal

prosecutions, and in cases involving the life, or liberty of an individual the

accused shall have a right . . . to have the assistance of counsel.” Iowa

Const. art. I, § 10. The language of the provision indicates the person

claiming the right to counsel must be an “accused” in either a criminal

prosecution or a case involving that person’s life or liberty.

         Recently, in Green, we applied article I, section 10 to hold that a

defendant did not have a right to counsel during a noncustodial,

investigative interview that occurred before the defendant had been

arrested or charges had been filed, even though a prosecutor supervised

the interview. 896 N.W.2d at 782. We noted, “There was no prosecution

or case at the time of Green’s interview.” Id. We added, “Green was not

formally or informally an ‘accused.’ ” Id. at 778.

         In the present case, the right to counsel would have to arise even

earlier than in Green. Hernandez Ruiz was not yet under investigation

when he went to the Ankeny driver’s license station on March 1, 2011. He

was just trying to get a driver’s license. Only after he provided his social

security number, which differed from at least one number he had used in

the past, did an investigation ensue.         The investigation then led to a

criminal charge. In light of Green and the text of article I, section 10, we

are unable to conclude that a right to counsel had attached.

         C. The Immigration Proceeding. It is true that Hernandez Ruiz

had a pending federal immigration case in which Said was representing
                                           12

him. Yet the article I, section 10 right to counsel does not apply in federal

immigration cases.        “Stated simply, state constitutions do not control

federal action.” State v. Mollica, 554 A.2d 1315, 1327 (N.J. 1989); see

United States v. Bach, 310 F.3d 1063, 1066 (8th Cir. 2002) (“[F]ederal

courts in a federal prosecution do not suppress evidence that is seized by

state officers in violation of state law, so long as the search complied with

the Fourth Amendment.”); United States v. Smith, 9 F.3d 1007, 1014 (2d

Cir. 1993) (holding the validity of search in a federal prosecution depends

on whether the Federal, not State, Constitution is satisfied); State v.

Hernandez-Galarza, 864 N.W.2d 122, 135 (Iowa 2015) (noting the State of

Iowa would not have the ability to discharge an individual confined by

federal authorities under the federal immigration laws). 5




       5The  “cases” language of article I, section 10 was added in reaction against the
Fugitive Slave Act as amended by Congress in 1850. In re Johnson, 257 N.W.2d 47, 54
(Iowa 1977) (McCormick, J., concurring specially) (explaining why article I, section 10 did
not confer a right to jury trial in delinquency cases). The Federal Fugitive Slave Act of
1850 empowered federal commissioners to return fugitive slaves from free states to slave
states without the benefit of jury trial. Act of Sept. 18, 1850, ch. 60, § 6, 9 Stat. 462,
463–64 (repealed 1864). “No one can doubt from the convention record that the disputed
language was added to Art. I § 10 in an effort to nullify the Fugitive Slave Act by giving
persons accused as escaped slaves the right to jury trial in Iowa.” In re Johnson, 257
N.W.2d at 54.
       During the debates over the Iowa Constitution, doubts were expressed about the
constitutionality of using an Iowa constitutional provision to override the Fugitive Slave
Act. See 2 The Debates of the Constitutional Convention of the State of Iowa 736–37, 740–
41 (W. Blair Lord rep. 1857), publications.iowa.gov/7313/2/The_Debates_
of_the_Constitutional_Convention_Vol%232.pdf. For example,
                I would be unwilling to put into this constitution what gentlemen
       have openly avowed is the meaning of this provision; and if these words
       are not stricken out, this will be the condition of things: that if Congress
       pass a law upon the subject of the rendition of fugitive slaves, and if that
       law shall be resisted by a counter law of this State, we shall have assumed
       to take that subject from the authority of the laws of the United States, to
       decide upon it for ourselves. That cannot be done without bringing about
       a collision between these authorities.
Id. at 741.
                                            13

       Additionally, federal law does not recognize a Sixth Amendment

right to counsel in immigration cases.                 “In an immigration removal

proceeding, an alien does not have a Sixth Amendment right to counsel,

only a privilege.” United States v. Telemaque, 632 F. App’x 602, 603–04

(11th Cir. 2016) (per curiam); see Estrada-Hernandez v. Lynch, 819 F.3d

324, 327 (7th Cir. 2016) (per curiam) (stating that the Sixth Amendment

right to counsel “does not apply to removal proceedings, which are

regarded as civil in nature”); Brumant v. Holder, 594 F. App’x 273, 274 (5th

Cir. 2015) (per curiam) (“[W]e note our longstanding authority that aliens

in immigration proceedings have no Sixth Amendment right to counsel.”);

Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir. 2010) (per curiam)

(“Because immigration proceedings are of a civil rather than criminal

nature, aliens in removal proceedings ‘enjoy[ ] no specific right to counsel’

under the Sixth Amendment to the Constitution.” (Alteration in original.)

(quoting Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir.

2005))); Kawas v. Att’y Gen. of U.S., 304 F. App’x 84, 88 (3d Cir. 2008) (per

curiam) (“[T]he Sixth Amendment right to counsel does not attach in

immigration proceedings.”).

       D. Practical Considerations. Furthermore, the right to counsel

urged by Hernandez Ruiz presents many practical difficulties. Would the

DOT need to make attorneys available at driver’s license offices for private

consultations before people applied for licenses?                Also, because of the

danger that setting off a criminal investigation could result in removal from


         A supporter of the language responded to this argument in the following manner:
“[I]f the provision under consideration should come in conflict with the fugitive slave law,
I do not care.” Id. at 738.
         Yet the fact that the “cases” language in article I, section 10 was originally an
effort to nullify certain federal proceedings does not mean we can use it today to dictate
the rights that would be conferred in a different kind of federal proceeding. The
Supremacy Clause applies. See U.S. Const. art. VI, cl. 2.
                                     14

the United States, aliens would potentially have a constitutional right to

counsel in a number of circumstances when citizens would not have such

a right. Those circumstances wouldn’t be limited to driver’s licenses.

      Bad legal advice can lead to a criminal investigation in a variety of

contexts. There are many ways in which a misstep can unwittingly set the

authorities on one’s trail. Still, it isn’t ineffective assistance unless the

bad advice occurs in a criminal case or an Iowa case “involving the life, or

liberty of an individual.”

      We also should consider the remedy that Hernandez Ruiz seeks in

this case. Normally, the remedy for ineffective assistance is tailored to the

constitutional violation. See, e.g., State v. Allen, 708 N.W.2d 361, 369

(Iowa 2006) (finding that the proper remedy for ineffective assistance in

connection with a guilty plea resulting from a plea bargain is to invalidate

the entire plea bargain and allow both sides to start over); State v. Iowa

Dist. Ct., 464 N.W.2d 244, 250 (Iowa 1990) (en banc) (finding that the

appropriate remedy for ineffective assistance at trial was a new trial rather

than dismissal of the case); see also United States v. Morrison, 449 U.S.

361, 364, 101 S. Ct. 665, 667–68 (1981) (“Cases involving Sixth

Amendment deprivations are subject to the general rule that remedies

should be tailored to the injury suffered from the constitutional violation

and should not unnecessarily infringe on competing interests.”). That is,

the defendant normally gets a do-over with the ineffective assistance

removed.    But here, Hernandez Ruiz would receive more—dismissal of

charges for a crime he committed.         For purposes of this appeal, we

presume that effective counsel would have asked Hernandez Ruiz about

any past involvement with the DOT and, based on his responses, advised

him not to get a driver’s license. Even so, Hernandez Ruiz might have been

caught at some point for some other reason. Yet under the district court’s
                                     15

order, he could not be prosecuted for the use of a false social security

number and would now be free to obtain a driver’s license.

          We are well aware of the severe consequences for aliens whose

immigration status is affected by state criminal convictions. See generally

Diaz, 896 N.W.2d 723. However, we cannot find that Hernandez Ruiz’s

conviction violated his constitutional right to counsel grounded in the

Sixth Amendment or article I, section 10.

          IV. Conclusion.

          For the foregoing reasons, we reverse the order below and remand

with directions to dismiss Hernandez Ruiz’s application for postconviction

relief.

          DISTRICT    COURT     JUDGMENT       REVERSED      AND     CASE

REMANDED.

          All justices concur except Appel, Hecht, and Wiggins, JJ., who

concur specially.
                                      16

                                                  #16–1619, Hernandez Ruiz

APPEL, Justice (specially concurring).

      I agree with the result in this case. The right to counsel did not

attach under the Sixth Amendment or the more expansive version of right

to counsel under article I, section 10 of the Iowa Constitution when

Guillermo Hernandez Ruiz’s lawyer gave him poor advice in his office. At

that point, the adversarial power of the government had not focused on

him at all. Indeed, no investigation of any kind was underway.

      As indicated in my dissenting opinion in State v. Senn, I do not agree

with a bright-line rule that invariably requires that the state file a piece of

paper in a court in order for the right to counsel to attach. 882 N.W.2d 1,

56 (Iowa 2016) (Appel, J., dissenting). But the holding in this case is quite

narrow and fact specific—when there is no investigation of any kind

underway and a client receives legal advice in a law office as in this case,

no right to counsel attaches and therefore no claim of ineffective assistance

of counsel may be raised in a subsequent criminal proceeding based on

the poor advice given by the lawyer. The opinion in this case extends no

farther than this uncontroversial point of law.

      Wiggins and Hecht, JJ., join this special concurrence.
