Appeal from the Iowa District Court for Linn County, Thomas L. Koehler (guilty plea) and Marsha A. Bergan (sentencing), Judges.
The opinion of the court was delivered by: Mullins, J.
A defendant appeals his conviction following his plea of guilty alleging ineffective assistance of counsel. AFFIRMED.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
Carlos Olivas appeals his conviction following a guilty plea to one count of burglary in the third degree and one count of theft in the first degree. He asserts his attorney provided ineffective assistance of counsel when his attorney failed to inform him of the immigration consequences of his guilty plea and when his attorney did not object or file a motion in arrest of judgment based on the court's failure to advise him of the immigration consequences of his guilty plea, as required by Iowa Rule of Criminal Procedure 2.8(2)(b)(3). For the reasons stated below, we affirm Olivas's conviction and sentence but preserve his ineffective-assistance claim for possible post-conviction relief proceedings.
I. BACKGROUND FACTS AND PROCEEDINGS.
According to the Minutes of Testimony attached to the trial information, Olivas contacted law enforcement authorities seeking to confess to a burglary and theft he had committed over three months prior. Olivas admitted to the officers that he broke into a vacant residence looking for metal and cans, but he ended up finding and taking between $29,000 and $30,000 in cash and coins. Olivas was transported to the police station where he provided a videotaped interview detailing his crime.
He decided to plead guilty to the offenses, and the State, in return for the guilty plea, would recommend the sentences be served concurrently. During the plea colloquy, the court did not advise Olivas on the record that his conviction, deferred judgment, or deferred sentence may have an effect on his status under the immigration laws, as required by Iowa Rule of Criminal Procedure 2.8(2)(b)(3). Olivas was represented by counsel during the plea colloquy, but approximately a month later, he requested to proceed pro se. Counsel was allowed to withdraw, and stand-by counsel was appointed for the sentencing.
The court at sentencing extensively questioned Olivas to make sure he wanted to proceed without counsel and advised Olivas that the hearing could be continued to allow him time to file a motion in arrest of judgment if he so wished. Olivas made clear to the court he did not want counsel, did not want to file a motion in arrest of judgment, and wanted to proceed with sentencing.
The Court: . . . Judge Koehler told you that if you wanted to challenge those guilty pleas you had to do it by filing a Motion in Arrest of Judgment. Do you remember him saying that?
The Defendant: Yes, he said within ten days.
The Court: Okay. That motion can be filed within 45 days of the date that you pled guilty but it has to be filed not later than 5 days before your sentencing date, so again those are things about your case that you have told me.
The Defendant: Yeah, just.
The Court: Information that makes me know that you don't know that law.
The Defendant: You Honor, I decided not to file it, I decided not-I had plenty of time, I decided not to file ...