from the Iowa District Court for Polk County, Scott D.
applicant appeals from the district court's denial of his
application for postconviction relief.
Alexander Smith and Benjamin D. Bergmann of Parrish
Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann
LLP, Des Moines, for appellant.
J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee State.
Considered by Potterfield, P.J., Doyle, J., and Carr, S.J.
POTTERFIELD, Presiding Judge.
Benitez Pizarro appeals the district court's denial of
his application for postconviction relief (PCR). In the
underlying case, Benitez Pizarro entered a guilty plea to
possession of a controlled substance with intent to deliver.
Here, as he did in front of the PCR court, Benitez Pizarro
maintains his trial counsel provided ineffective assistance
by failing to (1) effectively plea bargain, (2) inform him of
the immigration consequences associated with his plea deal,
(3) adequately advocate on Benitez Pizarro's behalf at
sentencing, and (4) prepare Benitez Pizarro for his right of
allocution at sentencing. In the alternative, if we do not
find he met his burden of establishing Strickland
prejudice, Benitez Pizarro asks that we adopt a new standard
for prejudice under the Iowa Constitution and consider his
claims under that standard.
Background Facts and Proceedings.
February 2016, Benitez Pizarro, who is not a United States
citizen, was stopped for a traffic violation. Officers
searched his van and recovered eleven sealed bricks of
marijuana. Officers later searched his residence and a second
vehicle-driven by Benitez Pizarro's co-defendant. In
total, officers recovered $28, 970 in cash, 245 grams of
cocaine salt hydrochloride, and 14, 863 grams of marijuana.
After officers read Benitez Pizarro his Miranda
rights, he confessed to possessing the drugs and told the
officers he was responsible for holding and delivering them
for a drug dealer he knows who had recently lent Benitez
Pizarro money when he was struggling to pay his
Benitez Pizarro was charged by trial information with six
felony drug charges, including conspiracy to deliver a
controlled substance (cocaine salt hydrochloride), possession
of a controlled substance with intent to deliver (cocaine
salt hydrochloride), failure to possess a drug tax stamp
(cocaine salt hydrochloride), conspiracy to deliver a
controlled substance (marijuana), possession of a controlled
substance with intent to deliver (marijuana), and failure to
possess a tax stamp (marijuana).
to a plea agreement, Benitez Pizarro pled guilty to
possession of a controlled substance with intent to deliver
(cocaine salt hydrochloride), a class "B" felony,
and the State asked the court to dismiss the other five
charges. At sentencing, which took place immediately after
the entry of the guilty plea, the State urged the court to
sentence Benitez Pizarro to a term of incarceration not to
exceed twenty-five years. Benitez Pizarro's counsel urged
the court to follow the recommendation for probation by the
preparer of the presentence investigation (PSI) report.
[Counsel for co-defendant] talked about the separation of
those two gentlemen from their family. The Supreme Court of
the United States . . . pointed out that the separation from
the family is more important to somebody who is not a citizen
than going to jail.
If there was a choice between going to jail and staying here
and deportation, most people would go to jail.
The sentence these gentlemen are looking at is separation for
the rest of their life from their family. A drug charge does
not have a pardon. There is no pardon. It is done. ...