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Pizarro v. State

Court of Appeals of Iowa

March 20, 2019

JAVIER BENITEZ PIZARRO, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

         The 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.

          Thomas 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.

         Javier 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.

         I. Background Facts and Proceedings.

         In 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 bills.[1]

          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).

         Pursuant 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 stated:

[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. ...

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