                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0686
                              Filed August 7, 2019


LEON JUAN ZACARIAS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, Joel W. Barrows,

Judge.



      Leon Juan Zacarias appeals the dismissal of his application for

postconviction relief. AFFIRMED.




      Dan Vondra of Vondra & Malott PLC, Iowa City, for appellant.

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

Attorney General, for appellee State.



      Considered by Mullins, P.J., Bower, J., and Vogel, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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BOWER, Judge.

       Leon Juan Zacarias appeals the district court’s dismissal of his application

for postconviction relief (PCR), which challenged his trial counsel’s failure to advise

him about immigration consequences of his guilty plea to identity theft and

fraudulent practices. We affirm the district court.

       I.     Background Facts & Proceedings.

       Zacarias has resided in the United States since 2006, had completed all the

paperwork to adjust his status to a permanent resident, and is married to a United

States citizen. On July 13, 2016, Zacarias was charged with identity theft, forgery,

and two counts of fraudulent practices.

       Zacarias hired attorney Michael Said to represent him due to Said’s self-

proclaimed expertise in criminal and immigration law.1 On May 31, 2017, Zacarias

filed a written guilty plea to two misdemeanors: identity theft and one count of

fraudulent practice. The only mention of immigration on the memorandum of plea

agreement is a handwritten provision at the bottom stating, “The defendant has

been notified that any criminal charge or sentence can or will have immigration

consequences.” Zacarias and his interpreter both signed below the provision. On

June 2, the court entered judgment and imposed a two-year suspended sentence

and minimum fine on each count. The offenses related to Zacarias’s use of

another person’s information to obtain employment and register a vehicle. Identity

theft is considered a crime of moral turpitude, and a guilty plea results in clear




1
 Zacarias’s previous immigration counsel, who worked from the same office as his PCR
counsel, withdrew from representing Zacarias due to the pending criminal charges and
gave Zacarias his file on July 15, 2016.
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immigration consequences, including mandatory detention and expedited

removal.2

       On July 7, Immigration and Customs Enforcement (ICE) took Zacarias into

custody when he went to sign his probation papers. On August 9, Zacarias filed a

PCR application alleging ineffective assistance of counsel.

       Following a hearing where the court heard testimony from both Zacarias

and Said, the court dismissed Zacarias’s application. The court expressly found

Said to be a more credible witness. Zacarias filed a motion for new trial claiming

mistake of fact as to whether Zacarias had an immigration attorney and that Said

lied during his testimony. The district court denied the motion. Zacarias appeals.

       II.     Standard of Review

       We review postconviction-relief proceedings for correction of errors at law.

Morales Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017); see also 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.” Hernandez

Ruiz v. State, 912 N.W.2d 435, 439 (Iowa 2018). We give weight to the trial court’s

findings on the credibility of witnesses. Ledezma v. State, 626 N.W.2d 134, 141

(Iowa 2001).




2
  In State v. Martinez, 896 N.W.2d 737, 756 (Iowa 2017), released one week after
Zacarias’s sentencing and within the time to appeal, the Iowa Supreme Court found
federal immigration law preempts the relevant identity-theft statutes for purposes of
employment of unauthorized immigrants. The court ruled, “[T]he State in this case cannot
prosecute Martinez for identity theft related to false documentation supplied to her
employer as an unauthorized alien.” Martinez, 896 N.W.2d at 756. Said did not inform
Zacarias of the decision.
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       III.   Analysis.

       On appeal, Zacarias claims the district court erred in finding Said a credible

witness despite evidence of prior attorney discipline relating to misrepresentations.

Zacarias also claims Said provided ineffective assistance of counsel by

misrepresenting the consequences of a guilty plea.

       Credibility determination. During cross examination, Zacarias’s attorney

was able to question Said about prior cases against him and disciplinary

proceedings, including judicial findings of dishonesty. The court was aware of, and

expressly found Said more credible than Zacarias, based on the documentary

evidence. The court acknowledged the impeaching evidence and still found in

Said’s favor. The district court was within its discretion in its credibility assessment.

See Tim O’Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996)

(“The trier of fact—here, the district court—has the prerogative to determine which

evidence is entitled to belief. The district court has a better opportunity than we do

to evaluate the credibility of witnesses.” (internal citation omitted)).

       Ineffective assistance of counsel.         Zacarias alleges two theories of

ineffective assistance of counsel.         “Ineffective-assistance-of-counsel claims

require a showing by a preponderance of the evidence both that counsel failed an

essential duty and that the failure resulted in prejudice.” State v. Schlitter, 881

N.W.2d 380, 388 (Iowa 2016). First, Zacarias claims Said failed to adequately

explain the immigration consequences of his plea. Second, Zacarias claims Said

provided ineffective assistance by failing to advise of any potential benefits to trial.

       Just over one week after Zacarias entered his plea and was sentenced, the

Iowa Supreme Court explained attorneys are required to advise their clients of all
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the collateral immigration consequences associated with pleading guilty. Morales

Diaz, 896 N.W.2d at 730. In considering Zacarias’s PCR application, the district

court reasoned the extension constituted “a new rule of constitutional law that

cannot be applied retroactively.” The court applied the standard from Padilla v.

Kentucky, 559 U.S. 356, 372 (2010), obligating counsel to provide advice on

deportation consequences of a plea.

       In June 2018, we expressly found, “[Morales] Diaz is not a change in law

but rather an application of the existing law found in Padilla.” Ramirez v. State,

No. 16-1893, 2018 WL 2727707, at *5 (Iowa Ct. App. June 6, 2018). Therefore,

Morales Diaz is the appropriate standard for evaluating Said’s performance.

       Under Morales Diaz, defense “counsel has an obligation to inform his or her

client of all the adverse immigration consequences that competent counsel would

uncover.”   896 N.W.2d at 732.       These consequences can include “removal,

exclusion, bars to relief from removal, immigration detention, denial of citizenship,

and adverse consequences to the client’s immediate family.” Id. at 732 (citation

omitted).   Simply referring a client to alternative immigration counsel is not

sufficient—counsel has a duty to explain statutory consequences “with reasonable

clarity so a full and measured decision to plead guilty can be made.” Id.

       Zacarias testified he was never told his criminal plea might result in

detention by ICE. He explained he would not have pleaded guilty because he did

not want to be separated from family. He testified Said “guaranteed that I was

going to come out of my problem clean.”

       When discussing the information provided to Zacarias, Said testified,
                                          6


              I specifically told him under the political climate that existed in
      June of 2017, the chances are high that you will be picked up and
      the chances are extremely high that you will be picked up. Under the
      new policies of this administration, ICE is empowered to arrest
      anybody for the smallest crime, and they do. And I warned him, I
      said I must tell you more than likely you will be arrested. Get ready
      for that.

He further testified to advising Zacarias he might be deported and, for a time, he

would be ineligible to adjust his status and return. He then told Zacarias to go

speak with his immigration attorney, but also admitted to knowing Zacarias was

not able to consult with another attorney.

              I did advise him of the risk of pleading guilty prior to the plea.
      I explained to him what the risks were, which is way past what Padilla
      requires a criminal attorney to do, but I did, and I also told him to go
      talk to his immigration attorney to get a second opinion before
      pleading guilty. I fulfilled all the requirements of Padilla, and went
      way beyond Padilla. . . . I am doing everything possible to notify my
      clients of the consequences.

The State submitted an affidavit from Said, which includes the following

statements,

               3) I was aware that Mr. Zacarias was not a United States
      Citizen. From the beginning of his case we discussed the impact his
      criminal case would have on his current immigration status and
      eligibility for future relief. Specifically, Mr. Zacarias and I discussed
      on numerous occasions the fact that he could be removed from the
      United States, that the criminal case will hinder his ability to
      consulate process and adjust his status to that of lawful permanent
      resident, and could render him ineligible for cancellation of removal
      for certain non-permanent residents if he were placed in mandatory
      detention. In addition, I warned him that his plea would result in
      detention by [ICE] agents.
               ....
               6) The prosecution offered a plea bargain to two
      misdemeanor offenses. I explained to Mr. Zacarias that these
      criminal convictions would require his removal from the United States
      and would result in great difficulties to ever legally come back to the
      United States. I then submitted a letter to Mr. Zacarias explaining
      our conversation . . . .
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       The State submitted as evidence an alternative written plea executed by

Zacarias but not filed in his original case. On the same page as Zacarias’s

signature is a paragraph in bold, capital letters about immigration consequences,

               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.

       Said did not provide Zacarias with any writing informing him of the

immigration consequences of the plea. The letter from Said to Zacarias was not

submitted to the court. However, Said testified about the letter after reviewing it to

refresh his memory. This led to the following exchange:

              Q. Okay. And in this letter you didn’t talk about any concrete
       immigration consequences, did you? A. I did not cite the code
       section, nor did I write down—I warned him, and I warned him on
       numerous occasions. I understand that you’re complaining no
       matter what letter I write, you will be complaining.
              ....
              Q. Okay. And in fact, really the only thing you said about
       immigration consequences was, quote, “I explained the immigration
       ramifications of said plea, and that in the future, immigration laws
       could change for either the better or worse with regard to said plea.”
       Does that sound familiar? A. You’re quoting my letter, so I must say
       so, yes.
              Q. And previously—well, in the same letter you did say that if
       he went to trial, he would face jail time and deportation. Do you
       remember that? A. Potentially. The—my experience with trials in
       the State of Iowa with a Hispanic defendant is not the best, especially
       a defendant who has confessed. So that was what I explained to
       him at the meeting, which was before this letter.

       The State also submitted an email from Zacarias’s attorney to the State and

a letter to Zacarias showing Zacarias went to his prior immigration counsel’s office

three times on June 1, 2017. Counsel, who works in the same office as Zacarias’s

PCR counsel, informed Zacarias she no longer represented him and referred him
                                          8


back to Said.    In other words, Zacarias attempted to consult with a second

immigration attorney prior to the court accepting his plea and entering judgment.

These attempted consultations appear to show that Zacarias was aware of

potential immigration consequences

       Based on the evidence in the record, we find support for the court’s

determination that Said’s testimony—he advised Zacarias of the immigration

consequences to the criminal charges—was more credible than Zacarias’s claim

he was guaranteed he would face no immigration problems. We find Zacarias did

not establish by a preponderance of evidence Said breached a duty to him

regarding immigration consequences to the plea.

       Zacarias’s second ineffective-assistance claim is that Said never explained

to him the benefits of going to trial rather than entering a guilty plea. The State

counters with an assertion Zacarias did not raise the issue below as a ground for

relief and the court did not rule on it. The issue was not raised in Zacarias’s PCR

application, was not added in his motion to supplement the application, the court

did not rule on the question, and it was not raised in Zacarias’s motion for new trial.

We agree the issue was not preserved. See Meier v. Senecaut, 641 N.W.2d 532,

537 (Iowa 2002).

       We affirm the district court’s dismissal of Zacarias’s application for

postconviction relief.

       AFFIRMED.
