from the Iowa District Court for Polk County, Michael D.
Ramirez Fernandez appeals the denial of his application for
postconviction relief. REVERSED AND REMANDED.
L. Campbell of Dickey & Campbell Law Firm, PLC, Des
Moines, for appellant.
J. Miller, Attorney General, and Benjamin M. Parrott,
Assistant Attorney General, for appellee State.
by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
consequences and the duty of criminal defense attorneys again
intersect in this case. Mauricio Ramirez
Fernandez appeals the denial of postconviction
relief (PCR), contending his attorney was ineffective for
failing to warn him about the immigration and criminal
fallout from "turning himself in" to the Iowa
Department of Transportation (DOT) for using a false Social
Security number to register a vehicle. By doing so, Ramirez
obtained a conviction for fourth-degree fraudulent practice.
He also faults his attorney for continuing to represent him
while listed as a prosecution witness and for advising him to
plead guilty to a crime of moral turpitude, rendering him
ineligible for cancellation of removal proceedings.
recent precedent from our supreme court, we conclude no
constitutional right to counsel had attached when attorney
Michael Said advised Ramirez to reveal incriminating facts to
the DOT. But we do find Said operated under an actual
conflict of interest in continuing to represent Ramirez
throughout the criminal case while listed as a State's
witness and not informing Ramirez of this fact. We further
find Said breached a duty in failing to adequately inform
Ramirez of the immigration consequences of his plea and
Ramirez demonstrated prejudice by rationally insisting he
would have stood trial if he knew the reduced charge carried
the same prospect for removal as conviction on the original
offense. We reverse his conviction and remand for Ramirez to
proceed with non-conflicted, competent counsel.
Because we resolve the appeal on the conflict-of-interest and
failure-to-advise issues, we need not address Ramirez's
two remaining claims: (1) that counsel was ineffective for
not moving to suppress privileged information and (2) that
the district court abused its discretion in sustaining an
objection to questions concerning Said's pattern of
failing to properly advise clients of known immigration
consequences of their criminal convictions.
Facts and Prior Proceedings
is a Mexican citizen, who has been living in the United
States since 1996. He and his wife, also a Mexican national,
have two children, one of whom is an American citizen. In
2011, Ramirez was arrested while at work without proof of
authorization to be in the United States. Immigration
authorities began removal proceedings against Ramirez, and he
retained attorney Said to represent him in his immigration
case. Said filed an application for cancellation of removal
course of his representation in the immigration case, Said
advised Ramirez to get a driver's license. Ramirez
confided in Said that he had used a false Social Security
number to register a car. On July 20, 2011, Said sent an
email to a DOT investigator with whom he had previous
I have another client who used a false SS# to register his
car and House trailer. He now has a bona fide SS# and wants
to get his DL and register his car and Trailer with the
correct number. I am seeing you tomorrow and could bring him
False SS# is [###-##-####].
Let me know what you want to do.
to his report narrative, the investigator searched DOT
databases and discovered an application for vehicle
registration dated October 27, 2008, under the false Social
Security number Said provided. On the following day, July 21,
Said and Ramirez met with the investigator. At the meeting,
Ramirez provided a written statement labeled, "VOLUNTARY
STATEMENT (NOT UNDER ARREST)": "I used a made up
Social Security number to register a car in Polk County, Iowa
on 10/27/08." The investigator issued Ramirez a
"citation and complaint" charging him with
fraudulent practice in the third degree, in violation of Iowa
Code section 714.11(3) (2008). This is an aggravated
misdemeanor under Iowa law. Iowa Code § 714.11(3).
PCR trial, Ramirez testified he did not know Said had
informed the DOT of his false Social Security number and
falsely registered car until after he had been charged. He
also testified Said never told him he would be charged with a
crime if he went to the DOT. He further testified he was
never told the offense would make him ineligible for
cancellation of removal. He insisted if he had known, he
would not have gone to the DOT. Ramirez recalled Said telling
him if he agreed to everything he would be
"alright." Ramirez had limited English-language
skills, and Said had limited Spanish-language proficiency. No
interpreter was present during the DOT meeting. Afterward,
Said brought Ramirez to his law office and asked his
Spanish-speaking secretary to translate what had happened.
Ramirez testified he did not understand he had been charged
with a crime until the meeting in Said's office. At that
point, Said took a $2500 retainer to represent Ramirez in the
testified Ramirez was aware Said was going to disclose the
incriminating information to the DOT before the attorney did
so, even though it was protected by attorney-client
privilege. Said recalled telling Ramirez he would face a
criminal charge. Said also explained he thought Ramirez
should get a driver's license because the attorney did
not anticipate Ramirez would refrain from driving, and
eventually Ramirez might incur a more serious conviction that
would severely impact his immigration status. The benefit of
going to the DOT, according to Said, was Ramirez could obtain
a driver's license and be charged with an aggravated
misdemeanor only. Said noted other noncitizens in similar
circumstances had been charged with the felonies of forgery
and identity theft. Said did not advise Ramirez not to drive
or suggest that was an option.
the State filed the trial information charging Ramirez with
fraudulent practice, it listed two witnesses: the DOT
investigator and Said. Neither Said nor the State brought
this potential conflict to the district court's
attention; the court did not mention the witness list or
inquire further. At the PCR trial, Ramirez testified he was
not aware, and Said never told him, Said was listed as a
witness. According to Ramirez, Said did not inform him that
if he went to trial Said could be called to testify against
him. Said never obtained a waiver of conflict from Ramirez.
Said continued to represent Ramirez in both his immigration
and criminal cases; Ramirez continued to pay Said for his
Said's advice, Ramirez pleaded guilty to a reduced charge
of fraudulent practice in the fourth degree, in violation of
Iowa Code section 714.12, classified as a serious
misdemeanor. The United States government then filed a
motion to pretermit Ramirez's application for
cancellation of removal, arguing the conviction was for a
crime of moral turpitude, rendering Ramirez ineligible. The
federal immigration court agreed with the government that the
conviction was a crime of moral turpitude and granted the
motion, subjecting Ramirez to removal proceedings.
asked at the PCR trial whether he advised Ramirez about the
immigration consequences of the plea, Said responded it was a
standard procedure of his office to "explain that any
criminal matter has an immigration consequence,"
including possible removal. He did not know whether he or
another attorney in his office had explained the matter to
Ramirez. He testified he subjectively believed fraudulent
practice was not a crime of moral turpitude. But on
cross-examination, he stated he told Ramirez "some
people" consider fraudulent practice a crime of moral
turpitude. And in depositions, he admitted knowledge of two
cases from the United States Court of Appeals for the Eighth
Circuit concluding it is a crime of moral turpitude. Said was
asked, "[A]t the time [Ramirez] took the plea, it was a
settled matter for at least the 8th Circuit that it was a
[crime of] moral turpitude; is that correct?" Said
answered, "Yeah." When asked, "Did you
advise-specifically advise [Ramirez] that he was pleading to
a crime of moral turpitude?" Said answered, "No, I
don't remember if I did specifically tell him that."
the district court found Said's performance was deficient
in not sufficiently advising Ramirez on the immigration
consequences of the plea, it found no prejudice because
Ramirez had not shown he would have insisted on going to
trial for the greater offense. Thus, the district court
denied Ramirez's application for PCR. Ramirez appeals.
Analysis of Sixth Amendment Claims
review PCR proceedings for correction of legal error unless
they raise constitutional issues, in which case our review is
de novo. Perez v. State, 816 N.W.2d 354, 356 (Iowa
2012). Here, Ramirez's claims of ineffective assistance
of counsel call for de novo review. Diaz v. State,
896 N.W.2d 723, 727 (Iowa 2017). Even under de novo review,
we accord weight to the district court's credibility
findings. Ledezma v. State, 626 N.W.2d 134, 141
succeed, Ramirez must establish both: (1) counsel failed to
perform an essential duty, and (2) that failure resulted in
prejudice. See Strickland v. Washington, 466 U.S.
668, 687 (1984). To establish prejudice, he must show a
reasonable probability exists that, but for counsel's
errors, the result of the proceeding would have been
different. State v. Carroll, 767 N.W.2d 638, 641
(Iowa 2009). 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). To satisfy the prejudice requirement under
Hill, Ramirez must show a reasonable probability
exists that, but for counsel's faulty advice, he would
not have pleaded guilty and would have insisted on going to
trial. See id.; see also State v. Straw, 709 N.W.2d
128, 138 (Iowa 2006). In an immigration-consequences case, an
applicant "must convince the court that a decision to
reject the plea bargain would have been rational under the
circumstances." Padilla v. Kentucky, 559 U.S.
356, 372 (2010).
defense counsel had an actual conflict of interest is a mixed
question of law and fact. State v. Mulatillo, 907
N.W.2d 511, 517 (Iowa 2018) (applying de novo review to
underlying question whether constitutional right to counsel
was violated). Ramirez argues his case under both the Sixth
Amendment to the U.S. Constitution and Article I, Section 10 of
the Iowa Constitution.
Attachment of ...