                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0862
                               Filed July 27, 2016


ROBERTO MORALES DIAZ,
    Applicant-Appellee,

vs.

STATE OF IOWA,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Tama County, Mary E. Chicchelly,

Judge.



      The State appeals the postconviction court’s grant of relief. REVERSED.




      Thomas J. Miller, Attorney General, and Kevin Cmelik and Sharon K. Hall,

Assistant Attorneys General, for appellant State.

      Daniel J. Vondra of Cole & Vondra, P.C., Iowa City, for appellee.




      Heard by Vogel, P.J., and Doyle and Bower, JJ.
                                         2


BOWER, Judge.

       The State appeals the postconviction court’s grant of relief in setting aside

Robert Morales Diaz’s (Morales) 2014 conviction for forgery. The State claims

the court erred in finding Morales’s plea counsel breached a duty by inadequately

informing Morales of the immigration consequences of his guilty plea.           We

reverse.

I.     BACKGROUND FACTS AND PROCEEDINGS

       In January 2013, Toledo Police Officer McMillen and Tama County Officer

Bina were dispatched to a residence concerning a verbal domestic incident.

When the officers arrived they spoke with Morales and his then-girlfriend. Due to

communication issues, McMillen requested a translator. Morales would not allow

the officers to enter the residence, and, owing to the cold, McMillen asked

Morales to sit in his police car. McMillen advised Morales he was not under

arrest and requested identification. Morales presented McMillen with a Texas

identification bearing his name and picture, but it “did not have any security

features.” When McMillen checked the information on the card with dispatch, the

information came back as a different individual.       After McMillen questioned

Morales, Morales admitted to purchasing the identification at an office building for

$100, but denied the identification was forged. Morales said he had been in the

United States for nine years and had used the identification for six years.

McMillian arrested Morales for forgery and contacted the Department of

Homeland Security (DHS), which placed an immigration detainer on Morales as

an alien subject to removal. The detainer stated DHS would take custody of

Morales upon his release.
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      Shortly after his arrest in January, Morales was processed by DHS in

Cedar Rapids as “an alien present in the United States who has not been

admitted or paroled” since February 2002. At that time, Morales was provided

with “contact information for a free or low-cost legal service provider.” Morales

declined an offer to speak with the Mexican Consulate.

      On March 8, 2013, Morales was charged with forgery, in violation of Iowa

Code sections 715A.2(1), 715A.2(1)(d), and 715A.2(2)(a) (2011), due to his

fraudulent possession of a forged writing—the Texas identification. On June 27,

Morales waived his speedy trial rights to allow him time to contact an immigration

attorney. The trial date was reset multiple times to allow Morales to resolve his

immigration issues. On April 25, 2014, the court continued trial for the final time

noting Morales had an immigration hearing scheduled that would be dispositive

of his immigration issues. In early July, a guilty plea hearing was scheduled for

July 24. Morales did not attend the hearing, and the court issued a warrant for

his arrest. On July 29, DHS issued a warrant of removal/deportation based on

Morales’s failure to attend an immigration hearing that had been scheduled for

July 8 in Omaha, Nebraska.

      State authorities arrested Morales on August 20. On August 22, Morales

filed a waiver of rights and entered a guilty plea to the lesser-included-offense of

forgery, an aggravated misdemeanor in violation of Iowa Code section

715A.2(2)(b).    He waived his right to be present and requested immediate

sentencing.     The plea included the following language: “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
                                        4


States citizen.” In exchange for the plea, the State agreed to recommend a

suspended two-year term of incarceration, a minimum fine, and two years of

unsupervised probation. The court found “that the plea is voluntarily entered with

an understanding of the charge, knowledge of the criminal consequences and

the constitutional rights waived by said plea; that the Minutes of Testimony

provide a factual basis supporting the charge, and [Morales’s] written plea is

hereby accepted and entered of record.” The court sentenced Morales based on

the recommendations in the plea agreement. Morales did not directly appeal

from this sentence.

      On November 25, 2014, Morales filed an application for postconviction

relief (PCR) claiming his trial counsel breached a duty, pursuant to Padilla v.

Kentucky, 559 U.S. 356, 373 (2010), by failing to advise him of the clear or

automatic immigration consequences of his guilty plea. The PCR court granted

Morales’s request for an expedited hearing given DHS’s filing of a final

administrative removal order on March 18, 2015.

      An evidentiary hearing was held on April 10, 2015.        Morales, his trial

counsel Chad Frese, and Morales’s girlfriend testified. On April 17, the court

issued a ruling finding Frese had breached a duty and Morales had established

prejudice. The court vacated Morales’s guilty plea and set the matter for trial.

The State now appeals.

II.   SCOPE AND STANDARD OF REVIEW

      We review a claim of ineffective assistance of counsel de novo.        See

Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). An ineffective-assistance-

of-counsel claim requires a demonstration of both ineffective assistance and
                                            5

prejudice. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citing Strickland

v. Washington, 466 U.S. 668, 687 (1984)).             The ineffective-assistance prong

requires proof the attorney performed below the standard demonstrated by a

reasonably competent attorney as compared against prevailing professional

norms. Id. There is a strong presumption the attorney performed his duties

competently. Id. Once the applicant has shown ineffective assistance, he must

also show the error caused prejudice. Id. at 143. The prejudice prong requires

proof that, but for the ineffective assistance, “the result of the proceeding would

have been different.” Id. (citing Strickland, 466 U.S. at 694). The applicant must

“show that counsel’s deficient conduct more likely than not altered the outcome in

the case.”      Id. (citing Strickland, 466 U.S. at 693). Morales must prove the

“essential duty” and “prejudice” elements by a preponderance of evidence. See

Ennenga, 812 N.W.2d at 701.

III.      MERITS

          The State claims the district court improperly found Morales’s trial attorney

breached a duty in advising Morales on the immigration consequences and in

finding     Morales    was   prejudiced    by   his    attorney’s   advice   given    the

circumstances.1



1
  Morales claims the State has not preserved error on any claim concerning what he
knew about his immigration status at the time of his plea and the certainty of conviction.
See, e.g., DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002) (finding the State’s failure to
challenge error preservation in a PCR action at the district court level barred it from
doing so on appeal). The district court’s order shows it considered and ruled upon both
the breach and prejudice prongs of an ineffective assistance of counsel claim. The
ruling adequately addresses the State’s claims on appeal, and the claims are
necessarily included in an ineffective assistance argument. Therefore we find error is
preserved for our review. See Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012)
(noting error is preserved when an issue is raised and ruled upon by the district court).
                                        6


      The State claims Morales’s trial counsel did not affirmatively misadvise

Morales in telling him he was going to be deported no matter what happened with

the criminal charge.

      At the PCR hearing, Morales testified Frese “never told me anything

[concerning the immigration consequences of the conviction]. He just gave me

some papers that I had to sign. And I was in the jail, and he just informed me

about the charges and what was going to happen.”           On cross-examination,

Morales admitted he missed the July DHS immigration hearing due to a lack of

transportation to Omaha.     He failed to appear for the July hearing in Tama

County due to a fear of deportation.      He turned himself in to Tama County

authorities after learning from Frese he would forfeit his $10,000 bail bond for

failing to appear. He further noted, “Frese told me that he was going to get me

out clean because I was on probation. . . . I was desperate since my daughter

was little—and I told him okay, fine, just get me out as soon as you can.”

      Frese testified his primary goals were to keep Morales out of jail and to

keep Morales from being deported. He noted the criminal charge made these

goals “much more difficult, if not impossible for him to stay in the country.” To

achieve these goals, Frese sought to delay the criminal case until after the July

immigration hearing. He also sought to have Morales’s charge reduced so it

would not “have a punishment that would rise to the level” requiring deportation.

During this two month period (from June through July 2014), Frese noted

Morales stopped communicating with him, but Frese was able to communicate

with Morales’s girlfriend. Morales resumed communication with Frese two days
                                       7


before the bond forfeiture hearing. Concerning his conversation with Morales

about the immigration consequences of the plea, Frese stated:

             I went down to the jail with [an interpreter] and spoke to
      Roberto and explained to him that he had failed to appear and that
      now that he turned himself in that the case would be reset.
             ....
             Roberto was very apologetic, he was sorry that he let me
      down, he was sorry that all this happened, that he wanted to just
      get this over with. I explained to Roberto that I would talk to you
      about getting this over with today, that day. But I told him very
      clearly that chances were since he missed his immigration hearing
      on top of everything, that he was probably going to be deported no
      matter what happened. And he said he didn’t care, that he was
      sorry that he let everybody down, he was almost in tears, and he
      just wanted to make things right, and if he had to go to Mexico, he’d
      go to Mexico. So I came back up and got the written plea, talked to
      you, prepared it, went back down to jail with [the interpreter] and
      completed it and explained it to him, and he signed it.

(Emphasis added.)

      Frese also stated, instead of obtaining a deferred judgment on the felony

charge, he thought a plea agreement for a misdemeanor with less than one year

in jail would give Morales a better chance of staying in the country. On cross-

examination, Frese indicated, pursuant to Padilla, he knew of his duty to “fully

investigate possible immigration consequences of a criminal conviction,” but that

the law did not require a statement of the specific consequences in the guilty

plea. Frese admitted he did not know, regardless of the fact Morales missed the

immigration hearing, he might have been able to have his case reopened. Frese

also admitted he did not know of, or advise, Morales on the exact immigration

consequences stemming from the conviction. Frese reiterated he had advised

Morales to seek immigration counsel. Frese had consulted with an immigration

counsel involving Morales’s case and the immigration counsel told Frese if he
                                         8


pled to “a misdemeanor level offense with less than one year of punishment, that

he would have a shot to stay in the country.”

       An attorney’s duty is not merely to refrain from giving affirmative

misadvice, but defense counsel must inform a client whether a plea carries a risk

of deportation. Padilla, 559 U.S. at 373. “When the law is not succinct and

straightforward . . . a criminal defense attorney need do no more than advise a

noncitizen client that pending criminal charges may carry a risk of adverse

immigration consequences.” Id. at 369. When deportation consequences are

clear, the duty to give correct advice is equally clear. Id. In order to prevail on a

claim of ineffective assistance, a defendant must show not only that counsel

failed to advise him or her of the risk of adverse immigration consequences, but

also the defendant must meet the prejudice requirement by showing “a decision

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

at 372.

       In Lopez-Penaloza v. State, 804 N.W.2d 537 (Iowa Ct. App. 2011), our

court decided a matter similar to the matter at hand. Lopez-Penaloza concerned

a PCR ineffective assistance claim raising a Padilla challenge to the appellant’s

(Lopez-Penaloza) conviction for attempting to obtain an identification card in

someone else’s name. Lopez-Penaloza, 804 N.W.2d at 539. Trial counsel told

Lopez-Penaloza a guilty plea was the “‘safest’ way to resolve the case, and he

was unsure whether the guilty plea would lead to adverse immigration

consequences.” Id. The written guilty plea form contained language advising

Lopez-Penaloza “‘that a criminal conviction, deferred judgment, or deferred

sentence may affect [her] status under federal immigration laws.’” Id. at 539–40.
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The court’s sentencing order contained similar “immigration consequences”

language. Id. at 540. In finding Lopez-Penaloza’s trial counsel had not breached

a duty or caused prejudice pursuant to Padilla, our court reasoned:

              From the record, it appears Lopez–Penaloza signed the
      written guilty plea form and the sentencing order at the same time.
      She was warned twice about the risk of deportation. The written
      guilty plea form advised her “that a criminal conviction, deferred
      judgment, or deferred sentence may affect [her] status under
      federal immigration laws.” And the sentencing order similarly
      stated, “The Defendant was advised that a criminal conviction,
      deferred judgment, or deferred sentence may affect the
      Defendant’s status under federal immigration laws.”           Lopez–
      Penaloza argues these warnings were insufficient under Padilla
      because the deportation consequences of her plea were “truly
      clear”; thus, counsel needed to tell her that a conviction for
      tampering with records would result in automatic deportation. . . . .
              As the Supreme Court recognized in Padilla, “Immigration
      law can be complex, and it is a legal specialty of its own.” [Padilla,
      559 U.S. at] 369. “There will, therefore, undoubtedly be numerous
      situations in which the deportation consequences of a particular
      plea are unclear or uncertain.” Id. That was not the case in Padilla
      where the applicant was convicted of a crime involving a controlled
      substance, which is a presumptively mandatory deportable offense.
      See id. at 368 (stating 8 U.S.C. § 1227(a)(2)(B)(i) “specifically
      commands removal for all controlled substances convictions except
      for the most trivial of marijuana possession offenses”). Here,
      however, Lopez–Penaloza was convicted of tampering with
      records. This crime falls under the broad category of deportable
      offenses known as “crimes involving moral turpitude” (CIMT).
              ....
              Because the statutory provision governing the deportation
      consequences of Lopez–Penaloza’s guilty plea was not “succinct,
      clear, and explicit,” we conclude defense counsel owed her the
      more limited duty of advising her “that pending criminal charges
      may carry a risk of adverse immigration consequences.” Padilla,
      559 U.S. at 369.

Id. at 544–47

      Morales claims his attorney affirmatively misadvised him of the

immigration consequences of his plea and, therefore, breached his duty to

Morales.   We disagree.     Our first step is to determine if the immigration
                                        10

consequences were “unclear or uncertain.”       Padilla, 559 U.S. at 369.     If the

immigration consequences are unclear, then trial counsel only has a duty to

advise a plea “may carry the risk of adverse immigration consequences.” Id. For

the same reasons we listed in Lopez-Penaloza, we find the immigration

consequences were sufficiently unclear that Frese was not required to list the

specific immigration consequences of the conviction. See Lopez-Penaloza, 804

N.W.2d at 545–46 (“[I]n order to accurately advise Lopez–Penaloza about the

deportation consequences of her plea, her counsel would have been required,

like we were, to step into the ‘labyrinth’ of immigration law. . . . This would have

involved consideration not only of the statute itself, but also of ‘the federal

statutory scheme that governs immigration law, regulatory provisions enacted to

implement the [Immigration and Nationality Act (INA)], and decisions of the

[Board of Immigration Appeals] and federal courts regarding the proper analysis

of the INA’s many requirements and prohibitions.’” (citation omitted)). Finally,

we note the district court’s reliance on an immigration law expert’s opinion only

provides further support for our conclusion the immigration consequences were

sufficiently unclear.

       We find Frese did not breach his duty to Morales and reverse the district

court’s ruling.

       Even if Frese did breach his duty to Morales, Morales has not shown that

but for his counsel’s error, “the result of the proceeding would have been

different.” See Strickland, 466 U.S. at 694. He has not shown a decision to

decline the plea agreement would have been “rational under the circumstances.”

See Padilla, 559 U.S. at 372. The record shows Morales admitted he had been
                                       11


using the false identification for six years. The identification was not obtained

from a government agency, but from an office building for $100. Morales was

initially charged with a class “D” felony, but he was offered a plea agreement for

an aggravated misdemeanor and unsupervised probation.           Morales has not

shown, and the record does not suggest, he could have received a better

outcome if he had decided to go to trial. Remaining incarcerated and waiting for

a trial with a likely unfavorable outcome for Morales would have been irrational.

We find Morales has not proven he was prejudiced by his counsel’s advice and

we reverse.

      REVERSED.
