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State of Iowa v. Asmir Dzopa

January 24, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
ASMIR DZOPA, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer and George L. Stigler, Judges.

The opinion of the court was delivered by: Tabor, J.

A citizen of Bosnia challenges the judgment entered following his guilty plea to lascivious acts with a child. AFFIRMED.

Considered by Potterfield, P.J., and Danilson and Tabor, JJ.

A citizen of Bosnia challenges the judgment entered following his guilty plea to lascivious acts with a child. Asmir Dzopa alleges his trial counsel was constitutionally remiss in allowing him to plead guilty without advice regarding the risk of deportation. Because the record does not establish counsel discussed the potential immigration consequences with Dzopa before he entered a guilty plea, we preserve his claim for post-conviction relief proceedings.

I. Background Facts and Proceedings

On June 7, 2011, Waterloo police arrested nineteen-year-old Dzopa for sexual abuse in the third degree. The criminal complaint alleged that Dzopa picked up a thirteen-year-old runaway in his vehicle and engaged in a sex act with her. The Black Hawk County Attorney filed a trial information against Dzopa on August 5, 2011, alleging he committed a class "C" felony, in violation of Iowa Code section 709.4(2)(b) (2011).

Dzopa struck a bargain with the State, agreeing to enter a plea of guilty to lascivious acts with a child, a class "C" felony, in violation of Iowa Code section 709.8(2). In contrast to third-degree sexual abuse, lascivious acts is not a forcible felony under Iowa Code section 702.11, and thus, did not subject Dzopa to a mandatory term of incarceration. Defense counsel explained at the November 18, 2011 plea hearing that both parties recommended the indeterminate ten-year prison sentence be suspended. Counsel also said her client "would like to exercise the delay" before sentencing. Dzopa told the court he was satisfied with the services of his counsel and acknowledged committing lascivious acts with a child. After accepting Dzopa's plea of guilty, the court explained Dzopa could only challenge "the way we took your plea of guilty here today" by filing a motion in arrest of judgment. The district court did not mention federal immigration laws during the plea colloquy.

The parties appeared for a sentencing hearing on April 23, 2012. The defense had not filed a motion in arrest of judgment to challenge the guilty plea. Defense counsel made the following record:

[T]his was set previously for sentencing. At that time I made a recommendation for a continuance so that we could check out some immigration issues. Those issues have been checked out. I have spoken to Asmir about those. The situation is simply that there is no hold from immigrations and customs enforcement on Mr. Dzopa at this time. I have explained in my talking to a couple of different people that practice immigration law there is no guarantee that there won't ever be a hold on Asmir, but as of right now there are no red flags that they are placing a hold or concerned about a resolution of this case, and it's my understanding that [the prosecutor] and myself certainly aren't going to go and call them after this hearing is resolved one way or the other.

The sentencing court asked counsel if the immigration issue was "gone into back in November of last year" at the plea hearing. Counsel responded: "We did talk about that, Your Honor, and then again we needed additional time at the time of sentencing previously so I could follow-up with two attorneys." The prosecutor also recalled: "[W]hen we did the plea, there was some discussion about the defendant's status, and as I understand it, he is here legally in the country under certain parameters and we did talk about that at the plea. He is not a citizen, but he is not here illegally."*fn1 The court sentenced Dzopa in conformity with the plea agreement, suspending the indeterminate ten-year term, and placing him on probation for two to five years. The court imposed a fine of one thousand dollars and a civil assessment of two hundred fifty dollars, ordered him to register as a sex offender, and informed him of the lifetime supervision mandated by Iowa Code section 903B.1. The court also ordered Dzopa to have no contact with the victim for five years.

Dzopa filed a timely notice of appeal from the judgment and sentence.

II. Preservation of Error/Standard of Review

Dzopa's failure to file a motion in arrest of judgment would normally prevent him from contesting his guilty plea on appeal. Iowa R. Crim. P. 2.8(2)(d). But he is not precluded from bringing his challenge under an ineffective-assistance-of-counsel claim. State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). Claims of ineffective assistance stand as an exception to our normal rules of error preservation. Id. We save such claims for post-conviction relief 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. Id.

Because Dzopa is entitled to effective assistance of counsel under the Sixth Amendment, we review his claim de novo. See id. To succeed on his claim that counsel's performance violated constitutional norms, Dzopa "must show by a preponderance of the evidence that: (1) counsel failed to perform an essential duty; and (2) prejudice resulted." See id. If he falls short on either prong, we will affirm his conviction. 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). The Hill Court held: "to satisfy the 'prejudice' requirement, the defendant must show that there is a ...


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