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State v. Cano

Court of Appeals of Iowa

August 1, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
EDUARDO CANO, Defendant-Appellant.

          Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple (motion for revocation of deferred judgment) and Bradley J. Harris (guilty plea), Judges.

         Eduardo Cano appeals after pleading guilty to assault with intent to commit serious injury. AFFIRMED.

          Rockne O. Cole of Cole Law Firm, P.C., Iowa City, for appellant.

          Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.

          DOYLE, JUDGE.

         Eduardo Cano appeals after pleading guilty to assault with intent to commit serious injury, asserting a claim of ineffective assistance for counsel's failure to advise him of certain immigration consequences of his plea. Upon our review, we affirm his conviction, judgment, and sentence, and we preserve his claim for possible postconviction-relief proceedings to allow the record to be developed.

         I. Background Facts and Proceedings.

         In February 2016, the State filed a criminal complaint alleging Eduardo Cano willfully caused bodily injury to another, in violation of Iowa Code section 708.4(2) (2016), a class "D" felony. Cano was appointed counsel.

         In April 2017, Cano entered a written guilty plea to the lesser-included offense of assault with intent to inflict serious injury, in violation of section 708.2(1), an aggravated misdemeanor. Among other things, the guilty plea form, signed by Cano and his attorney, stated, "I understand that my conviction for the crime or crimes in this guilty plea may result in adverse immigration consequences, including deportation, if I am not a citizen of the United States." Cano also waived his rights to be present in court for the entry of his guilty plea and for his sentencing. The court accepted his plea, and the judgment was deferred. A month later, an appearance by privately-retained counsel was filed on Cano's behalf. At the same time, Cano filed an application for interlocutory review of the grant of his deferred judgment. His application stated: "What would ordinarily be a fantastic result for a U.S. Citizen, has resulted in drastic adverse immigration consequences for [Cano]. He now sits in detention and faces the loss of his Deferred Action for Childhood Arrivals due to the deferred judgment that was granted . . . ." He also filed a motion in district court to withdraw consent on request for a deferred judgment. The Iowa Supreme Court denied his request for interlocutory appeal and directed the district court "to hold a hearing and enter a ruling on [Cano's] pending motion to withdraw his consent to the deferred judgment."

         Thereafter, the district court set a hearing on Cano's motion. Cano then filed a motion in arrest of judgment. Later, he filed a "Defendant's Consent to Revocation of Probation" wherein he consented to having his deferred judgment revoked. In a motion to reset the hearing, Cano stated the parties had agreed that his probation should be revoked. At the hearing, the court heard all pending motions. There, Cano's current counsel conceded the motion in arrest of judgment was untimely filed and explained:

The only way to excuse that is ineffective assistance of prior counsel. I think given that the time frame that we're under at this point, our preference would be that we make an offer of proof on the issue of the prior ineffective assistance of counsel, and that if the court is able to either grant or reject it, . . . I guess we'd request a ruling.

         As part of his offer of proof, Cano testified his prior counsel had not discussed specific immigration consequences with him prior to his entry of the written guilty plea, including that his deferred judgment could be considered a conviction and that the offense to which he pled guilty was classified as a crime involving moral turpitude. Cano testified he would not have pled guilty if his counsel had advised him of these and other specific consequences, "[b]ecause I've got my family here, all my family's here, and I got no family in Mexico so I want to stay with my family. So I would not take that risk of being detained and facing deportation."

         On cross-examination, Cano testified he told his prior counsel he was not a citizen of the United States, and he maintained that was the only conversation he had with his prior counsel about immigration. Cano testified he did not read the written guilty plea form, "because I had asked [prior counsel] if I was going to have any problems in the ...


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