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Ruiz v. State

Supreme Court of Iowa

May 25, 2018

STATE OF IOWA, Appellant.

          Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.

         The State appeals the district court's grant of postconviction relief based on a finding of ineffective assistance of counsel.

          Thomas J. Miller, Attorney General, Thomas J. Ogden, Assistant Attorney General, John P. Sarcone, County Attorney, and Kevin Hathaway, Assistant County Attorney, for appellant.

          Margaret A. Hanson and Nichole Miras Mordini of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellee.

          MANSFIELD, Justice.

         This case presents the question whether bad advice from an immigration attorney to a client to try to get a driver's license, which triggered a criminal investigation and ultimately a conviction of the client for a previously committed fraudulent practice, can be grounds under the Sixth Amendment or article I, section 10 for setting aside that conviction. As discussed herein, we conclude that no right to counsel had attached when the client went to the driver's license station. This was before any investigation or criminal proceedings had begun. Accordingly, we reverse the district court ruling that granted postconviction relief to the client and remand for further proceedings consistent with this opinion.

         I. Facts and Proceedings.

         Guillermo Hernandez Ruiz is a native and citizen of Mexico. He entered the United States without permission in November of 1999. After entering the United States, Hernandez Ruiz obtained vehicle titles in his name using a false social security number that did not belong to him.

         On November 3, 2010, the Department of Homeland Security initiated removal proceedings against Hernandez Ruiz based on section 212(a)(6)(A)(i) of the Immigration and Nationality Act. See 8 U.S.C. § 1182(a)(6)(A)(i) (2006 & Supp. III 2009).[1] Hernandez Ruiz hired attorney Michael Said to represent him in the removal proceedings.

         On February 28, 2011, Said filed an application for cancellation of removal with the United States Citizenship and Immigration Service (CIS) on Hernandez Ruiz's behalf, indicating that Hernandez Ruiz had children who were American citizens who would suffer hardship if he were deported. See id. § 1229b(b)(1).[2] CIS received the application on March 1. As a result, Hernandez Ruiz was able to obtain an Employment Authorization Document (EAD) and valid social security number.

         That day, Hernandez Ruiz went to the Ankeny driver's license station of the Iowa Department of Transportation (DOT) and attempted to use his EAD and social security number to get a driver's license. Before doing so, Hernandez Ruiz met with Said at Said's law office. At that time, Said explained that the EAD and the social security number enabled Hernandez Ruiz to obtain a driver's license and if he wanted to drive, he had to have a license. Said did not inquire if Hernandez Ruiz had previously registered vehicles with a fraudulent social security number or advise of the risk that the DOT would discover prior fraudulent titling even though he was aware of this risk. Additionally, Said did not inform Hernandez Ruiz that he did not need a license if he wasn't going to be driving. In fact, Said testified he likely instructed Hernandez Ruiz to get a license.[3]

         When Hernandez Ruiz presented his documentation at the Ankeny driver's license station, a clerk ran it through the system and found that vehicles had been titled under the same name and date of birth but with a different social security number. Hernandez Ruiz admitted to the clerk that he had previously titled and registered vehicles under a different social security number. The clerk copied Hernandez Ruiz's documents and tried to get hold of a DOT investigator but was unable to do so at that time. She sent Hernandez Ruiz away without a driver's license and turned over the materials to an investigator a few minutes later.

         Meanwhile, Hernandez Ruiz spoke to Said about what had happened. Said advised him that he had three options: (1) go back to the DOT by himself and risk being charged with a felony; (2) have Said contact a DOT investigator and then return to the DOT with Said, where he would be charged with an aggravated misdemeanor (which would be pled down to a serious misdemeanor); or (3) consult with another attorney. Said did not advise Hernandez Ruiz that he was not obligated to return to the DOT or obtain a driver's license. Hernandez Ruiz elected to have Said contact DOT Investigator Don Sharr and set up a time for the three of them to meet. On March 2, Hernandez Ruiz completed a fee contract with Said for this representation.

         On March 9, Hernandez Ruiz and Said met with Investigator Sharr at the DOT. During the meeting, Hernandez Ruiz signed a voluntary statement admitting several instances of registering cars under a false social security number. Because of Hernandez Ruiz's candor, Sharr decided to charge Hernandez Ruiz with one count of fraudulent practices in the third degree in violation of Iowa Code section 714.11, an aggravated misdemeanor. See Iowa Code § 714.11 (2011). Said represented Hernandez Ruiz in his criminal case. On June 1, 2012, Hernandez Ruiz pled guilty to the lesser included offense of fraudulent practices in the fourth degree, a serious misdemeanor. See id. § 714.12. Hernandez Ruiz received a 180-day sentence, which was suspended, and was required to perform fifty hours of community service.

         As a result of this conviction, on September 6, 2013, the Department of Homeland Security filed a motion to pretermit Hernandez Ruiz's application for cancellation of removal, urging that fraudulent practices in the fourth degree was a crime involving moral turpitude rendering Hernandez Ruiz ineligible for relief. See 8 U.S.C. § 1229b(b)(1). The immigration court agreed. Consequently, Hernandez Ruiz once again faced deportation.

         Hernandez Ruiz retained new counsel and filed an application for postconviction relief on May 29, 2015, alleging he had received ineffective assistance of counsel from Said. The case went to trial on May 31, 2016.

         On August 29, the district court granted Hernandez Ruiz's application and vacated and set aside his guilty plea and sentence. The court found that

Said breached his essential duty to inform [Hernandez] Ruiz that he did not need to obtain a driver's license and explain to him that he could be charged with a crime knowing that the DOT was investigating matters of this sort and that the charge could have an adverse impact on his immigration status. His failure to provide this advice placed [Hernandez] Ruiz into a situation resulting in the initiation of criminal proceedings.[[4]

         The court also rejected the State's argument that the right to counsel had not attached. The State appealed, and we retained the appeal.

         II. Standard of Review.

         Our review of postconviction-relief proceedings is typically for correction of errors at law. Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017); see Iowa R. App. P. 6.907. But when we are reviewing an ineffective-assistance-of-counsel claim, we do so de novo because such claims are constitutional in nature. Diaz, 896 N.W.2d at 727; Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008).

         III. Analysis.

         The State seeks reversal of the district court's ruling on the ground that no constitutional right to counsel had attached at the time of Said's alleged ineffective assistance. See State v. Dudley, 766 N.W.2d 606, 617 (Iowa 2009) ("Without a right to counsel, [a defendant] also has no commensurate right to effective assistance from that counsel." (Alteration in original.) (quoting White v. Schotten, 201 F.3d 743, 752 (6th Cir. 2000), overruled on other grounds by Lopez v. Wilson, 426 F.3d 339, 341 (6th Cir. 2005) (en banc))); see also Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301 (1982) (per curiam) ("Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his retained counsel's failure to file the application timely."). Hernandez Ruiz does not dispute that a right of counsel must have attached in order for his claim to succeed.

         A. The Sixth Amendment Right to Counsel.

         The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The Supreme Court has held the right "does not attach until a prosecution is commenced." Rothgery v. Gillespie County, 554 U.S. 191, 198, 128 S.Ct. 2578, 2583 (2008) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207 (1991)). A prosecution commences at "the initiation of adversary judicial criminal proceedings." Id. (quoting United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297 (1984)). This could be "by way of formal charge, preliminary hearing, indictment, information, or arraignment." Id. (quoting Gouveia, 467 U.S. at 188, 104 S.Ct. at 2297).

The rule is not "mere formalism, " but a recognition of the point at which "the government has committed itself to prosecute, " "the adverse positions of government and defendant have solidified, " and the accused "finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law."

Id. (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882 (1972) (plurality opinion)). It is immaterial to this analysis whether the prosecutor is aware of the initial proceeding or involved in its conduct. Id. at 194-95, 128 S.Ct. at 2581. The Court and the vast majority of states have determined

a criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.

Id. at 213, 128 S.Ct. at 2592; accord id. at 203-04 & n.14, 128 S.Ct. at 2586-87 & n.14 (citing cases and statutes from forty-three states that "take the first step toward appointing counsel 'before, at, or just after initial ...

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