                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1893
                               Filed June 6, 2018


CARLOS RAMIREZ,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, John J. Haney,

Judge.



      The applicant appeals from the denial of his application for postconviction

relief. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.




      Benjamin D. Bergmann and Alexander Smith of Parrish Kruidenier Dunn

Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.




      Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
                                           2


POTTERFIELD, Judge.

       Carlos Ramirez appeals from the district court’s denial of his application for

postconviction relief (PCR). As he did in his PCR application, Ramirez maintains

he received ineffective assistance from trial counsel. Specifically, he maintains

counsel was ineffective by failing (1) to ensure Ramirez’s written guilty pleas

conformed to Iowa Rule of Criminal Procedure 2.8(2)(b); (2) to advise him

adequately of the immigration consequences of his pleas; and (3) to mitigate the

immigration consequences.        Alternatively, Ramirez asks us to apply a new

prejudice standard under the Iowa Constitution if we find that Ramirez has failed

to establish prejudice under the well-known Strickland1 standard or to determine

the failure to inform a defendant adequately of immigration consequences

constitutes “structural error,” allowing Ramirez to succeed without having to

establish how he was prejudiced.

I. Background Facts and Proceedings.

       Ramirez was born in the Dominican Republic in 1976. He immigrated to

the United States in 2003. At the time he was charged by trial information, in

October 2011, Ramirez was a legal permanent resident of the United States and

had been for a number of years. Additionally, he had six children2 who were either

residents or citizens of the United States.

       Ramirez was charged by trial information with two counts of child

endangerment, one count of harassment in the first degree, and one count of




1
  Strickland v. Washington, 466 U.S. 668 (1984).
2
  Ramirez had six children who lived in the United States at the time he was charged; by
the time he entered his guilty pleas, he was expecting his seventh.
                                           3


domestic abuse assault causing bodily injury. It was alleged Ramirez had hit his

wife with a closed fist—leaving a bruise on his wife’s bicep—while she changed

the diaper of their two-year-old child. Then, after his wife began packing a bag to

leave the residence, Ramirez laid on the couple’s bed near their one-year-old child

while holding a knife and told his wife he would kill the child before he let her leave

with the children. His wife reported Ramirez frequently told her he was going to

kill her.

         In a second trial information, Ramirez was also charged with one count of

child endangerment and one count of harassment in the first degree. It was alleged

Ramirez had struck his two-year-old child and had again threatened to kill his wife.

         In May 2012, Ramirez entered a written guilty plea to two counts of child

endangerment and one count of domestic abuse causing bodily injury; the State

agreed to dismiss the other pending charges. The written plea form contained the

following sentence, “I understand that a criminal conviction, deferred judgment or

deferred sentence will affect my status under federal immigration law.”

         Ramirez was sentenced to concurrent two-year sentences for each

conviction for child endangerment and a one-year sentence for his conviction for

domestic abuse assault.        All but seventy-five days of each sentence was

suspended, which Ramirez had discharged with time served before his guilty

pleas.

         Ramirez did not appeal the judgment or sentence.

         In May 2014, Ramirez filed a timely petition for PCR. In his petition, Ramirez

claimed his trial counsel had provided ineffective assistance when she failed to

advise Ramirez of potential deportation consequences of his guilty pleas.
                                           4


       The petition was not heard until August 2016. At the hearing, Ramirez

called an immigration attorney, Nikki Mordini, as an expert witness.            Mordini

testified as to the differences between “removability”—when a person is subject to

being deported or ejected from the country—and “inadmissibility”—when a person

would be prevented from legally reentering the country or, while still in the United

States, would become ineligible for certain types of relief. While legal permanent

residents may apply for cancellation of removal—which allows for cancellation of

the removal process even after conviction of an otherwise removable crime—

anyone convicted of an aggravated felony (as defined by the Immigration and

Nationality Act) is ineligible for the cancellation. Mordini testified aggravated felony

convictions are often referred to as “the death penalty of immigration cases”

because a conviction carries such severe immigration consequences.               While

crimes involving moral turpitude can be more ambiguous, crimes that constitute

aggravated felonies are listed in the statute.        Additionally, some crimes are

considered aggravated felonies because of the conduct or type of crime, such as

situations where a crime includes violence, and other crimes are considered

aggravated felonies because the non-citizen was sentenced to a term of

incarceration of one year or more.

       Mordini was asked what she would tell a non-citizen client who was pleading

guilty to an aggravated felony about the immigration consequences, and she

stated, in part:

       If it appears there were no options for avoiding the aggravated felony,
       my advice to the client would be that you will be removed. The
       aggravated felony means that you are deportable. It means that
       once placed in deportation proceedings that you are subject to
       mandatory detention, which means that you are not eligible for a
                                        5


      bond while the deportation case is pending. An aggravated felony
      means that if you’re removed based on that aggravated felony that
      you are permanently barred from returning to the U.S. It means that
      you are permanently barred from becoming a U.S. citizen, even if
      there’s some way that you’re able to stay. And there are just—there
      are numerous consequences based on that aggravated felony
      conviction. But first and foremost is that you will be removed.

Ramirez’s trial counsel was also called to testify at the PCR hearing. At the

hearing, she testified she told Ramirez in several conversations he would or could

be deported if he pled guilty. Additionally, the following exchange took place

between PCR counsel and trial counsel:

             Q. You do understand that you’re required to advise a client if
      there are clear immigration consequences, right? A. I believe that
      my obligations are to let them know to the best of my ability and to
      advise them to seek the advice of an attorney who can provide them
      with specific advice about immigration.
             Q. So you would agree that you are not able to give advice
      about immigration consequences. A. Yes.
             Q. You did not know whether or not there were unambiguous
      immigration consequences to Mr. Ramirez pleading guilty, did you?
      A. I believe that any charge that is a domestic abuse or child
      endangerment will carry immigration consequences. I don’t know
      whether they’re ambiguous or unambiguous. I’m not well-versed on
      immigration law.
             Q. Do you remember when I took your deposition . . . [a]nd I
      asked you, “So it’s fair to say that then when you represented
      [Ramirez] you did not know whether or not there were unambiguous
      consequences, correct?” A. And my answer was, “I guess not.”
             Q. You didn’t determine whether any of the charges to which
      Mr. Ramirez was pleading guilty were aggravated felonies, did you?
      A. No.
             ....
             Q. Was it ever ambiguous to you about whether or not
      [Ramirez] wanted to stay in the United States? A. He wanted to stay.
             Q. Were his children important to him? A. Very important.
             Q. You didn’t determine whether any of the charges Mr.
      Ramirez—to which Mr. Ramirez pleaded guilty were crimes involving
      moral turpitude, did you? A. No, not specifically.
             Q. Your advice was that the charges could perhaps lead to
      deportation, correct? A. I had several conversations with him over
      the course of this case, and there were several times that I said to
      him, these cases—if you plead guilty to any of these charges or are
                                         6


       found guilty to the charges that the guilty plea—the plea agreement
       was, I told him you were—he was going to be deported.
              Q. It would be fair to say that your answer has vacillated
       somewhat as to whether or not you said he would be deported or
       could be deported? A. That’s true. Although we had several different
       conversations.
              Q. Although it makes a big difference to Mr. Ramirez whether
       you’re saying could or would, right? A. Perhaps it does, yes.

       Trial counsel also testified she was “surprised to see” Ramirez at the PCR

hearing because she thought he would be deported. She expounded:

              Why I thought he would be deported? He was pleading guilty
       to a domestic abuse assault and two child endangerment charges,
       both of which are the—the two child endangerment charges are
       considered by the federal government to be felonies even though in
       Iowa they are misdemeanors, aggravated misdemeanors. But
       because of the maximum length of sentences they were considered
       to be felonies.

Later, in response to another question about what she had told Ramirez before he

entered his guilty pleas, she stated:

              We talked a number of times, and I know that at several points
       I said buddy, if you accept this, you’re going to be deported. And I
       know—I’m not trying to—I mean, probably used the word “would” or
       “could.” So I—But I know sometimes I said to him you’re going to be
       deported, and I know I was very clear that this was something that
       was going to be—going to cause him a lot of problems.

       Ramirez also testified at the hearing, stating his trial counsel had not told

him that his guilty plea to either domestic abuse assault or child endangerment

would render him inadmissible to the United States. He also testified that he was

not told his convictions would result in deportation and that if he had been told, he

would not have pled guilty. He claimed he was innocent of the charges. He agreed

that in deciding to plead guilty, he considered the fact that he would not have to

spend additional time in jail and that some charges were being dismissed;

however, he maintained that he was concerned about being deported because he
                                          7


would not be able to see his children. He claimed that he pled guilty because his

trial attorney told him he would get his children back if he did so—they had been

placed in a foster family and had a no-contact order against Ramirez at the time

he pled guilty.

       At the close of evidence, Ramirez’s PCR counsel also raised the issue that

his trial counsel had been ineffective when she allowed him to plead guilty with a

guilty plea form document that did not comply with Iowa Rule of Criminal Procedure

2.8(2)(b). The rule requires that the written guilty plea document “includes a

statement that conviction of a crime may result in the defendant’s deportation or

other adverse immigration consequences if the defendant is not a United States

citizen.”

       In its written ruling, the PCR court denied Ramirez’s petition, ruling that the

sentence on the written guilty plea and the trial attorney’s “several conversations

with Ramirez about the immigration consequences of pleading guilty or being

found guilty of the charges of child endangerment and domestic abuse” “comports

with the requirements established in” Padilla v. Kentucky, 559 U.S. 356, 368

(2010). Additionally, the court found that Ramirez could not establish that he was

prejudiced by any alleged errors because “[t]he record does not contain credible

evidence that Ramirez would have received a more favorable outcome if he had

gone to trial.”

       Ramirez appeals.

II. Standard of Review.

       “Although ‘[w]e typically review postconviction relief proceedings on error,’

we review ineffective-assistance-of-counsel claims de novo.” Diaz v. State, 896
                                           8

N.W.2d 723, 727 (Iowa 2017) (quoting Ledezma v. State, 626 N.W.2d 134, 141

(Iowa 2001)). “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.” Id. (citation omitted).

III. Discussion.

       We begin with Ramirez’s claim that he received ineffective assistance when

trial counsel failed to inform him adequately of the immigration consequences

involved with his guilty pleas.

       The Sixth Amendment to the United States Constitution guarantees a

defendant a “right to the effective assistance of counsel,” which includes the right

to effective assistance at “that critical stage of the prosecution in which a defendant

considers pleading guilty to the charges.”         Id.   Counsel provides ineffective

assistance when he or she breaches an essential duty and the defendant is

prejudiced as a result. State v. Clay, 824 N.W.2d 488, 495 (Iowa 2012). “To

establish counsel provided constitutionally deficient representation, the defendant

must establish counsel’s representation ‘fell below an objective standard of

reasonableness.’” Diaz, 896 N.W.2d at 728 (quoting Strickland v. Washington,

466 U.S. 668, 688 (1984)). “We look to ‘the practice and expectations of the legal

community’ in defining this standard.” Id. (quoting Padilla, 559 U.S. at 366). If the

defendant makes the requisite showing under the first prong, then the defendant

must show he or she would not have pled guilty and instead would have insisted

on going to trial in order to establish that counsel’s failure resulted in prejudice. Id.

Importantly, “[t]his does not mean the defendant must show he or she would have

prevailed at trial.” Id. at 729. “Rather, the defendant must only show the ‘decision
                                           9

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

(quoting Padilla, 559 U.S. at 372).

       “It is a duty to provide competent and thorough advice, to represent the

client’s interests with vigor and diligence, and to fulfill those ‘anxious

responsibilities’ with which we have entrusted the bar.” Id. at 727–28 (citation

omitted). This duty “exists separate from the colloquy engaged in by the district

court under Iowa Rule of Criminal Procedure 2.8.” Id. at 728. “An attorney fails to

fulfill this duty when the attorney fails to advise a client of the immigration

consequences of a plea.”      Id.     “Changes in immigration law have increased

enforcement and reduced discretion in the event of a criminal conviction.” Id.

“These changes have shifted the responsibility to protect immigrants from potential

inequities in the immigration system to criminal defense counsel.” Id.

       Here, the State concedes that trial counsel breached her duty to Ramirez if

Diaz is the law. However, the State maintains that the Padilla controls what advice

was reasonable at the time Ramirez entered his plea. We disagree. Diaz is not a

change in law but rather an application of the existing law found in Padilla. See

Diaz, 896 N.W.2d at 730 (stating the court must answer the “vexing question [of]

the extent to which counsel must advise the specific consequences beyond

deportation” in order “to complete the analysis in Padilla and address the State’s

argument that [defendant’s] counsel was not required to advise him on anything

other than the risk of deportation,” and recognizing how other courts have “read”

Padilla).

       In Padilla, the Court considered whether counsel’s representation fell below

an objective standard of reasonableness when counsel failed to inform the non-
                                          10


citizen defendant about possible immigration consequences to pleading guilty to

the transportation of a large amount of marijuana. 559 U.S. at 359. The Court

found that “constitutionally competent counsel would have advised [Padilla] that

his conviction for drug distribution made him subject to automatic deportation.” Id.

at 360.    Additionally, the court reiterated, “‘The proper measure of attorney

performance remains simply reasonableness under prevailing professional

norms.’ We long have recognized that ‘[p]revailing norms of practice as reflected

in American Bar Association standards and the like . . . are guides to determining

what is reasonable.’” Id. at 366 (alteration in original) (quoting Strickland, 466 U.S.

at 688).   The court then proceeded to find that “[t]he weight of prevailing

professional norms supports the view that counsel must advise her client regarding

the risk of deportation.” Id. at 367.

       In Diaz, our supreme court applied the same standard, noting that counsel

is required to provide competent advice, as determined by contemporaneous

professional norms. See Diaz, 896 N.W.2d at 727–29. The court noted that while

Padilla ultimately required counsel to advise a defendant of deportation

consequences when they were clear under the statute or to simply advise of

possible immigration consequences when they were not clear, the court did “not

believe the Court [in Padilla] intended to create a new standard for determining

effective assistance of counsel or to limit the advice of counsel to exclude a full

explanation of the various immigration consequences of pleading guilty.” Diaz,

896 N.W.2d at 730. “Instead, counsel after Padilla is held to the same standard

counsel was before Padilla: to provide objectively reasonable assistance as

measured by prevailing professional norms.”          Id.   Our supreme court then
                                        11

considered the “proliferation of reference guides since the Padilla decision” before

recognizing “that counsel has an obligation to inform his or her client of all the

adverse immigration consequences that competent counsel would uncover.” Id.

at 731, 732 (emphasis added). “[C]lients expect their counsel to conform to the

‘practice and expectations of the legal community,’ which in this case is an

expectation enhanced by vast professional support.” Id. at 732 (citation omitted).

Thus, the question is not whether Padillia or Diaz applies, but what the prevailing

professional norms were in 2012 when trial counsel advised Ramirez regarding

the possible immigration consequences of his guilty plea.

       Here, even if we found a reasonably competent attorney would not, in 2012,

have uncovered the immigration consequences associated with removal, “such as

exclusion, denial of citizenship, immigration detention, and bar to relief from

removal,” Diaz, 896 N.W.2d at 729, counsel breached her duty to give clear advice.

Like the statement in the outdated guilty plea form used by counsel, the

immigration advice provided by counsel was general and ambiguous. At the PCR

hearing, trial counsel agreed her advice to Ramirez vacillated between whether he

“could” or “would” be deported; however, “the terms of the relevant immigration

statute are succinct, clear, and explicit in defining the removal consequence for

[Ramirez’s] conviction.”     Padilla, 559 U.S. at 368; see also 8 U.S.C.

§ 1227(a)(2)(E)(i) (“Any alien who at any time after admission is convicted of a

crime of domestic violence, a crime of stalking, or a crime of child abuse, child

neglect, or child abandonment is deportable.”). Additionally, she testified she knew

the charges of domestic abuse or child endangerment “will carry immigration

consequences” but did not “know whether they’re ambiguous or unambiguous.”
                                         12


Similarly, when she was deposed, she was asked if she knew at the time she

represented Carlos whether there were unambiguous consequences, and she

responded, “I guess not.”

       The deportation consequence was not the only misleading advice given by

trial counsel. Counsel breached an essential duty when she failed to advise

Ramirez that his reentry to the United States after deportation would be barred due

to his guilty pleas. See Diaz, 896 N.W.2d at 731 (“Counsel’s duty as interpreted

in Padilla does not depend on an assessment of the clarity of the consequences

or on categorizing them as strictly related to deportation.”); see also ABA

Standards for Criminal Justice: Prosecution Function and Def. Function 4-5.5(c)

(4th ed. 2015) (“After determining the client’s immigration status and potential

adverse consequences from the criminal proceedings, including removal,

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

and adverse consequences to the client’s immediate family, counsel should advise

the client of all such potential consequences and determine with the client the best

course of action for the client’s interests and how to pursue it.”). “[C]ounsel has an

obligation to inform his or her client of all the adverse immigration consequences

that competent counsel would uncover.” Pursuant to federal statutes, Ramirez’s

guilty pleas render him inadmissible. See 8 U.S.C. § 1182(a)(9)(ii).

       Next, we must determine whether Ramirez has established he was

prejudiced by counsel’s failure to provide correct advice about the immigration

consequences of his guilty plea. In this context, Ramirez is required to show he

would not have pled guilty and instead would have insisted on going to trial. Diaz,

896 N.W.2d at 728. The district court concluded that Ramirez had failed to meet
                                         13


his burden because “[t]he record does not contain credible evidence that Ramirez

would have received a more favorable outcome if he had gone to trial.” But such

a showing is not necessary. See id. at 729 (“This does not mean the defendant

must show he or she would have prevailed at trial.”) “Rather, the defendant must

only show the ‘decision to reject the plea bargain would have been rational under

the circumstances.’” Id. (quoting Padilla, 559 U.S. at 372).

       Based on the record established at the PCR hearing, we believe Ramirez’s

contention that he would have insisted on going to trial if he had been informed

that he would be deported and barred from reentry if he pled guilty to the charges.

Ramirez has seven children who reside in the United States and none who live in

the Dominican Republic, where he was born. He has been adamant that his

children’s presence in the U.S. was critical to his decision to plead guilty. See id.

at 734 (concluding the record supports a finding of prejudice because the

defendant had a child in the country and “[b]y pleading guilty, he all but guaranteed

he would never be physically present in her life to help her grow. If he had not pled

guilty, he could have defended himself at trial.”). Ramirez maintained he only

entered his guilty plea because he believed his children would be returned to him

if he did so. Additionally, trial counsel agreed that staying in the United States was

very important to Ramirez. At the PCR hearing, Ramirez maintained that he was

actually innocent of the charges to which he pled guilty. While Ramirez received

apparent benefits to pleading guilty by having multiple charges dismissed and

spending no additional time in jail, “an unauthorized alien may rationally choose to

reject a plea deal for the same reasons a U.S. citizen might.” Id. at 733. And if he

had been correctly advised of the immigration consequences, Ramirez could have
                                         14

“rationally decided to hold the State to its burden of proof.” Id. at 734. Finally,

while trial counsel maintained Ramirez decided to plead guilty because “he had

another child” and a “new girlfriend,” “was going to move somewhere in Illinois,”

and “had just decided to go on his with his life,” we believe such a statement

instead supports Ramirez’s contention he would have insisted on going to trial if

he was properly told the consequences of the pleas.

       Because counsel failed to advise Ramirez adequately of the immigration

consequences of his guilty pleas and Ramirez has established that it would have

been rational to reject the plea agreement and go to trial if he had been properly

informed and that he would have made that decision, Ramirez received ineffective

assistance from trial counsel. We remand this case to the district court to allow

Ramirez to withdraw his plea and stand for trial.3 Id.

       REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.




3
  Because we find this issue dispositive, we need not consider Ramirez’s other claims,
including his argument for different standards under the Iowa Constitution.
