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Ramirez v. State

Court of Appeals of Iowa

June 6, 2018

CARLOS RAMIREZ, Applicant-Appellant,
v.
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.

          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 Strickland[1] 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 children[2] 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 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.

          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 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 ...


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