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Diaz v. State

Supreme Court of Iowa

June 9, 2017

STATE OF IOWA, Appellant.

         On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Tama County, Mary E. Chicchelly, Judge.

         Roberto Morales Diaz seeks further review of a court of appeals decision reversing the district court's grant of postconviction relief. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED AND CASE REMANDED.

          Thomas J. Miller, Attorney General, Kevin Cmelik and Sharon K. Hall, Assistant Attorneys General, for appellant.

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

          CADY, Chief Justice.

         In this case, we consider the scope of an attorney's responsibility to advise a client who is an unauthorized alien in the United States of the immigration consequences of pleading guilty to a criminal offense. The district court held the attorney's advice was insufficient and ordered the defendant, Roberto Morales Diaz, be allowed to withdraw his plea. On appeal, we transferred the case to the court of appeals. The court of appeals reversed, finding counsel had no duty to provide specific advice on the immigration consequences of pleading guilty. The court of appeals also held Morales Diaz failed to show any deficiency of counsel caused him prejudice. On further review, we vacate the court of appeals and affirm the district court. We conclude Morales Diaz's attorney failed in his duty to advise his client of the direct and severe immigration consequences of pleading guilty to the crime of aggravated misdemeanor forgery, leading Morales Diaz to plead guilty and subject himself to automatic and permanent removal. We remand this case for further proceedings.

         I. Factual Background and Proceedings.

         Roberto Morales Diaz began residing in the United States in 2002. He entered this country without examination by the Department of Homeland Security. Morales Diaz has a young daughter who is a U.S. citizen. He was her primary caregiver until he was taken into custody and removed to Mexico. Until this case, Morales Diaz had no criminal record.

         On January 24, 2013, a City of Toledo police officer responded to a report of a domestic disturbance. The mother of Morales Diaz's daughter reported she felt threatened by Morales Diaz during an argument. The altercation did not include physical violence. The officer placed Morales Diaz in a squad car and asked for identification. Morales Diaz produced a Texas identification card bearing his name. The officer then learned the identification number on the card was registered to a different name. The officer also observed the card had no security features. The officer decided to transport Morales Diaz to the Toledo police station for further questioning.

         At the station, the officer interrogated Morales Diaz with the aid of an interpreter. The officer told Morales Diaz he was not going to be arrested for the reported domestic disturbance, but he was going to be questioned about the identification card. Morales Diaz explained he obtained the card from an office building in Houston he thought was the Texas Department of Public Safety. He stated he paid $100 for the card and was advised he could use it to operate a motor vehicle and open bank accounts. The officer asked Morales Diaz if he was in the United States legally. Morales Diaz initially responded he legally immigrated to the United States, but later admitted he was residing here without authorization. After this admission, the officer placed Morales Diaz under arrest. Morales Diaz continued to deny knowledge of any illegality with the identification card. The officer transported Morales Diaz to the county jail and contacted Immigration and Customs Enforcement (ICE). ICE began removal proceedings. The county attorney filed a trial information charging Morales Diaz with forgery as a class "D" felony under Iowa Code section 715A.2(1)(d) and (2)(a) (2013).

         Morales Diaz was released on bail. He retained counsel. The court continued the state forgery proceedings against him several times to give him time to resolve his federal immigration status. On July 8, 2014, however, he failed to appear at an immigration hearing in Omaha, Nebraska. He also failed to appear at a scheduled plea hearing in Iowa state court. After a Tama County court issued an arrest warrant, he turned himself in and was held in the county jail.

         Morales Diaz's counsel visited him in jail. According to Morales Diaz, his counsel gave him a written guilty plea to sign, but did not advise him of any of the immigration consequences of pleading guilty. According to his counsel, counsel advised Morales Diaz that because he missed his immigration hearing he was "probably going to be deported no matter what happened." Counsel stated Morales Diaz responded that he "just wanted to get this over with, " before he signed the written plea of guilty to aggravated misdemeanor forgery under Iowa Code section 715A.2(2)(b). Consistent with the plea agreement, the court imposed a two-year suspended sentence. Nevertheless, based on this conviction, federal authorities subsequently removed him from the United States to Mexico.

         Morales Diaz returned to the United States in Department of Homeland Security custody and filed for postconviction relief in district court. He asserted he was denied his right to the effective assistance of counsel under the Sixth Amendment to the U.S. Constitution. He argued his counsel should have advised him that forgery under Iowa Code section 715A.2(2)(b) constituted an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(R) (2012). In turn, he argued his counsel should have advised him that pleading guilty to an aggravated felony has severe, automatic, and irreversible immigration consequences, including foreclosure of "cancellation of removal, " a proceeding by which the Attorney General may adjust the status of a removable alien to that of a lawful permanent resident. See 8 U.S.C. § 1229b(b)(1)(C). Additionally, he argued his counsel should have advised him that his physical presence in the United States for more than ten years and his good moral character would have allowed him to seek this relief if he could establish his removal would result in "exceptional and extremely unusual hardship" to his daughter. Id. § 1229b(b)(1)(A)-(D). Because his counsel failed to advise him of these immigration consequences of his plea, Morales Diaz argued he should be allowed to withdraw his plea and defend the charges at trial.

         The district court agreed and vacated his conviction. The court found Morales Diaz's counsel had a duty to advise him of the clear and foreseeable immigration consequences of pleading guilty, not just that there was a possibility he could be removed. It found Morales Diaz's counsel failed to perform this duty and Morales Diaz could prove prejudice because, based on his counsel's failure, he gave up his right to a trial, which he would not have done had he known that pleading guilty to forgery would permanently separate him from his daughter.

         The State appealed, and the court of appeals reversed. The court of appeals found counsel for Morales Diaz had no duty to advise him of the specific immigration consequences of his plea, and in the alternative, that he could not show he was prejudiced by counsel's failure. We granted further review.

         II. Standard of Review.

         Although "[w]e typically review postconviction relief proceedings on error, " we review ineffective-assistance-of-counsel claims de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001); see also State v. Schlitter, 881 N.W.2d 380, 388 (Iowa 2016). "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." Schlitter, 881 N.W.2d at 388.

         III. Analysis.

         The right to counsel guaranteed by the Sixth Amendment to the U.S. Constitution is a "right to the effective assistance of counsel."[1]Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14 (1970)). This right is not limited to trial. Instead, the Sixth Amendment right to counsel "at least" extends to all critical stages of the prosecution after the initiation of formal proceedings. See Rothgery v. Gillespie County, 554 U.S. 191, 212, 128 S.Ct. 2578, 2591 (2008). Thus, the right to counsel plainly extends to that critical stage of the prosecution in which a defendant considers pleading guilty to the charges. See McMann, 397 U.S. at 770-71, 90 S.Ct. at 1448-49. Counsel's duty at this stage is no less important than it is at trial. See Missouri v. Frye, 566 U.S. 133, 143-44, 132 S.Ct. 1399, 1407 (2012). 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. Schware v. Bd. of Bar Exam'rs, 353 U.S. 232, 247, 77 S.Ct. 752, 760 (1957) (Frankfurter, J., concurring). It is a duty that is embodied in the very name the profession has appropriated: to counsel. Moreover, it is a duty that exists separate from the colloquy engaged in by the district court under Iowa Rule of Criminal Procedure 2.8. See State v. Rhodes, 243 N.W.2d 544, 545 (Iowa 1976) ("The court's inquiry is intended to supplement but not supplant advice of counsel.").

         An attorney fails to fulfill this duty when the attorney fails to advise a client of the immigration consequences of a plea. See Padilla v. Kentucky, 559 U.S. 356, 367-68, 130 S.Ct. 1473, 1482 (2010). Immigrant clients rely on criminal defense counsel to advise them of immigration consequences because these consequences are of great, even overwhelming, importance to them. See id. at 368, 130 S.Ct. at 1483. Changes in immigration law have increased enforcement and reduced discretion in the event of a criminal conviction. See id. at 363- 64, 130 S.Ct. at 1480. These changes have shifted the responsibility to protect immigrants from potential inequities in the immigration system to criminal defense counsel. See Christopher N. Lasch, "Crimmigration" and the Right to Counsel at the Border Between Civil and Criminal Proceedings, 99 Iowa L. Rev. 2131, 2149-50 (2014); see also Andrés Dae Keun Kwon, Comment, Defending Criminal(ized) "Aliens" after Padilla: Toward a More Holistic Public Immigration Defense in the Era of Crimmigration, 63 UCLA L. Rev. 1034, 1057 (2016). In response, many new resources have emerged to assist the defense bar in this growing responsibility, including quick-access charts, frequently asked questions and answers, opportunities for legal training, and free consultations with immigration experts. See Immigrant Def. Project, Resources: Criminal Defense Attorneys, (last visited June 2, 2017); Immigrant Legal Res. Ctr., Books and Trainings, (last visited June 2, 2017); Nat'l Ass'n of Criminal Def. Lawyers, Immigration Practice Advisories and Additional Res., (last visited June 2, 2017); Univ. of Iowa, Advanced Immigration Law and Policy Project, (last visited June 2, 2017);. As states and localities struggle to define their role, desired or not, as partners in immigration enforcement, see Ingrid V. Eagly, Immigrant Protective Policies in Criminal Justice, 95 Tex. L. Rev. 245, 247 (2016), defense counsel must embrace his or her new role as a "crimmigration" attorney, Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367, 381 (2006), if counsel is to provide effective assistance.

         To establish counsel provided constitutionally deficient representation, the defendant must establish counsel's representation "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064; see also State v. Clay, 824 N.W.2d 488, 495 (Iowa 2012). We look to "the practice and expectations of the legal community" in defining this standard. Padilla, 559 U.S. at 366, 130 S.Ct. at 1482; see also Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). If the defendant makes the requisite showing under this first prong, the defendant must then show that, but for counsel's ineffective assistance, he or she "would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370 (1985); see also State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006). This does not mean the defendant must show he or she would ...

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