Opinion
No. 5-704 / 04-1435
Filed November 23, 2005
Appeal from the Iowa District Court for Johnson County, Denver D. Dillard, Judge.
Applicant appeals from district court's denial of his application for postconviction relief. AFFIRMED.
Rockne Cole, Iowa City, for appellant.
Thomas J. Miller, Attorney General, and Sharon Hall, Assistant Attorney General, J. Patrick White, County Attorney, and Janet Lyness, Assistant County Attorney, for appellant.
Heard by Huitink, P.J., and Mahan and Hecht, JJ.
Richard Roberts appeals from the district court's denial of his application for postconviction relief. He claims his trial counsel was ineffective for failing to include a warning about potential immigration consequences in a written guilty plea form. We affirm.
I. Background Facts and Proceedings
On April 28, 2003, the State charged Roberts with third-degree sexual abuse. Roberts filed a written plea to the lesser charge of assault with intent to commit sexual abuse, an aggravated misdemeanor, on August 1, 2003. The written plea agreement provided for a two-year suspended sentence and one-year supervised probation. The written plea agreement did not contain a statement advising Roberts that a conviction may affect his status under federal immigration laws. See Iowa R. Crim. P. 2.8(2)( b). The district court accepted the guilty plea and sentenced Roberts pursuant to the plea agreement on September 12, 2003. Roberts did not appeal.
Roberts was born in Liberia and moved to the United States in 1981 at age fourteen.
On October 29, 2003, Roberts was arrested and served notice that he faced deportation for a violation of the Immigration and Nationality Act based on his conviction for the offense of assault with intent to commit sexual abuse. Roberts filed an application for postconviction relief on March 19, 2004, claiming ineffective assistance of counsel based on the alleged failure to ensure Roberts's written guilty plea complied with Iowa Rule of Criminal Procedure 2.8(2)( b)(3). The State resisted the application.
At the evidentiary hearing on the application, held September 2, 2004, Roberts and his court-appointed trial counsel, Quint Meyerdirk, testified. Roberts testified Meyerdirk never warned or advised Roberts of the possibility he could be deported if convicted. Roberts claimed he did not remember signing the written guilty plea. He asserted he would have taken steps to hire an immigration attorney and would not have pled guilty if he had known the risk to his immigration status. On cross-examination, Roberts admitted that Meyerdirk "assured me that he could have won this case."
Conversely, Meyerdirk, an attorney with the public defender's office for approximately ten years, testified he advised Roberts on numerous occasions that his immigration status may be in jeopardy. He advised Roberts to speak with an immigration attorney and recommended Roberts contact Laz Pittman, a local attorney practicing immigration law. Meyerdirk testified that Roberts's response to his advice to seek counsel was "don't' worry about it Quint, I will take care of it." Meyerdirk further testified he believed Roberts's case was "very triable," but that Roberts "wanted the deal" — probation rather than risking possible prison time. When the prosecutor made a reference to deportation on the day of the plea agreement, Meyerdirk again warned Roberts, "[the prosecutor's] coming after you."
Roberts hired Pittman to represent him after his arrest by federal immigration officials, but denied Meyerdirk had previously recommended he contact Pittman.
The district court filed its decision on September 7, 2004, denying Roberts's application. The court concluded Roberts "has a much greater motivation to lie or to forget the conversations than does Mr. Meyerdirk." Based upon the court's determination of credibility, it concluded Meyerdirk advised Roberts of his immigration rights. Therefore, Meyerdirk was not ineffective in his representation of Roberts and Roberts was not prejudiced by the failure of the plea form to include a statement about immigration rights. Roberts appeals.
II. Standard of Review
Generally, we review postconviction relief decisions for errors at law. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). However, when the applicant raises a constitutional issue, such as ineffective assistance of counsel, our review is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). We give weight to the district court's findings regarding witness credibility. Id. III. Preservation of Error
Roberts failed to file a timely motion in arrest of judgment challenging his guilty plea. See Iowa Rs. Crim. P. 2.24(3)( a), 2.8(2)( d); State v. Meron, 675 N.W.2d 537, 540 (Iowa 2004). Ordinarily, such a failure bars a defendant from directly challenging the adequacy of a guilty plea proceeding on appeal. Iowa R. Crim. P. 2.24(3)( a). However, "this requirement does not apply where a defendant was never advised" or was improperly advised during plea proceedings about filing such a motion. Meron, 675 N.W.2d at 540. The postconviction court found the written guilty plea form "misstated Mr. Roberts's rights concerning the filing of a motion in arrest of judgment." The State concedes the written form did not provide Roberts with proper advice.
Roberts also failed to file a direct appeal. Generally, a claim not raised on direct appeal cannot be raised in a postconviction relief proceeding "unless sufficient reason or cause is shown for not previously raising the claim, and actual prejudice resulted from the claim of error." Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). However, Iowa Code section 814.7(1) (2005), effective July 1, 2004, provides that an ineffective assistance of counsel claim "need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconviction relief purposes." Because the district court's judgment denying Roberts's postconviction relief application was filed on September 7, 2004, Roberts was no longer required to preserve his ineffective assistance of counsel claims by raising them on direct appeal. See Giles v. State, 511 N.W.2d 622, 624 (Iowa 1994) ("Unless otherwise indicated, statutes controlling appeals are those in effect at the time the judgment appealed from was rendered.").
IV. The Merits
To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). The defendant must prove both elements by a preponderance of the evidence. State v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003). "[T]here is a strong presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance." DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002). We may dispose of an ineffective-assistance-of-counsel claim if the applicant fails to meet either the breach of duty or the prejudice prong. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 699 (1984); State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). Because we find evidence of prejudice lacking in this case, we need not address trial counsel's alleged breach of duty.
In order to show prejudice, Roberts must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." DeVoss, 648 N.W.2d at 64 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). In the context of a guilty plea, a defendant must show "`there is a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial.'" Irving v. State, 533 N.W.2d 538, 541 (Iowa 1995) (quoting Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)). A "conclusory claim of prejudice . . . is not a sufficient assertion of prejudice." State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002).
The primary evidence supporting Roberts's prejudice claim is his self-serving testimony that had he been given the proper written warning about the possible immigration consequences, he would not have plead guilty. Roberts also contends his consultation with an immigration attorney and his filing of a postconviction relief application immediately following his arrest by immigration authorities support a showing of prejudice. These conclusory claims of prejudice are insufficient to establish prejudice. Moreover, Meyerdirk's testimony at the postconviction hearing contradicts Roberts's assertions. We give weight to the district court's credibility determination and agree with its conclusion that "[a]ny prejudice that resulted from the guilty plea and failure to file a motion in arrest of judgment rests with the [Roberts's] strategy or gamble that he would be able to remain in the country even with the conviction."
Roberts, citing State v. Stallings, 658 N.W.2d 106 (Iowa 2003), State v. Kress, 636 N.W.2d 12 (Iowa 2001), and State v. Schminkey, 597 N.W.2d 785 (Iowa 1999), urges us to presume prejudice in cases such as this one, where an immigration warning is not included in the written guilty plea and the defendant waives an in-court colloquy. In the absence of clear authority from our supreme court, we decline to do so in this case. See State v. Blanton, 454 N.W.2d 901, 902 n. 1 (Iowa Ct.App. 1990); State v. Eichler, 248 Iowa 1267, 1270, 83 N.W.2d 576, 578 (1957).
Roberts has failed to meet his burden of proof on the prejudice prong of his ineffective-assistance-of-counsel claim. Therefore, we affirm the district court's denial of his application for postconviction relief.