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Fernandez v. State

Court of Appeals of Iowa

July 18, 2018

STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.

         Mauricio Ramirez Fernandez appeals the denial of his application for postconviction relief. REVERSED AND REMANDED.

          Angela L. Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Benjamin M. Parrott, Assistant Attorney General, for appellee State.

          Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          TABOR, Judge

         Deportation consequences and the duty of criminal defense attorneys again intersect in this case. Mauricio Ramirez Fernandez[1] 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.

         Following 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.

         I. Facts and Prior Proceedings

         Ramirez 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 for Ramirez.[2]

         In the 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 dealings, saying,

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 in.
False SS# is [###-##-####].
Let me know what you want to do.

         According 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.[3] Iowa Code § 714.11(3).

         At the 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 criminal proceedings.

         Said 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.

         When 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 representation.

         On 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.[4] 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.

         When 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."

         Although 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.

         II. Analysis of Sixth Amendment Claims

         We 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 (Iowa 2001).

         To 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).

         Whether 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[5] and Article I, Section 10 of the Iowa Constitution.[6]

         1. Attachment of ...

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