IN THE COURT OF APPEALS OF IOWA

No. 18-1072

Filed May 13, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

AWADIA MAJAK DENG,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Carol S. Egly, District 

Associate Judge.

A defendant appeals her conviction for possession of marijuana. 

AFFIRMED. 

Joel E. Fenton of Law Offices of Joel E. Fenton, PLC, West Des Moines, 

for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney 

General, for appellee.

Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
2

TABOR, Presiding Judge.

Awadia Deng challenges her conviction for marijuana possession. She 

alleges her attorney was ineffective in advising her about the immigration 

consequences of her guilty plea. Because the record is inadequate to resolve her 

ineffective-assistance claim on direct appeal, we affirm her conviction but preserve 

her claim for possible postconviction-relief (PCR) proceedings.

The Polk County Attorney charged Deng with possession of marijuana in 

violation of Iowa Code section 124.401(5) (2017). The charge came after dispatch 

sent police officers to investigate a domestic dispute in October 2017. A caller 

reported her mother had locked her out of the house. When they arrived, officers 

found Deng in the kitchen holding a marijuana grinder. The officers told her it was 

illegal to possess drug paraphernalia. Deng and her mother grew “agitated” in 

response to the officers’ questions about the reason for the 911 call. When the 

officers suggested Deng leave the home for the evening, she said, “[J]ust arrest 

me.” Their search incident to that arrest recovered a small baggie of marijuana in 

Deng’s purse.

In May 2018, Deng signed a written guilty plea. As part of the bargain, Deng 

agreed to a ten-day jail sentence. In return, the State agreed to dismiss several 

other misdemeanor charges. The plea form included this italicized 

acknowledgment: “I understand that if I am not a citizen of the United States, a 

criminal conviction or deferred judgment may result in deportation and affect reentry into the United States or have other adverse immigration consequences 

under federal immigration laws.” The form also advised Deng that if she did not 
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move in arrest of judgment within the applicable time frame she would waive her 

right to challenge her guilty plea on appeal. 

The court accepted her guilty plea at an in-person hearing. At the hearing, 

the court asked Deng is she was a citizen of the United States. Defense counsel 

responded, “[O]ur office policy is if there are any immigration consequences for a 

certain client, we get an immigration consult. If there are any immigration 

consequences for M[s.] Deng, they would have been reviewed thoroughly.” The 

court then told Deng, “Even the best immigration expert cannot predict what might 

happen in the future that could [a]ffect anyone that has immigration consequences.

Do you understand that?” Deng said she understood.

Deng did not move in arrest of judgment to challenge her guilty plea. In 

June 2018, the court imposed the agreed-upon ten-day jail sentence.

On appeal, Deng complains she did not receive the necessary information 

about the immigration consequences of her guilty plea. She cites Padilla v. 

Kentucky, 559 U.S. 356, 368 (2010), and Diaz v. State, 896 N.W.2d 723, 729 (Iowa 

2017), for the proposition that criminal defense attorneys must advise their clients 

how pleading guilty may affect their immigration status. 

At the outset, Deng contends the district court failed to warn her of the 

consequences of not moving in arrest of judgment. Such a failure would allow her 

to challenge the plea on appeal even though she did not comply with Iowa Rule of 

Criminal Procedure 2.8(2)(d). See State v. Meron, 675 N.W.2d 537, 540 (Iowa 

2004). But, as the State points out, both the signed guilty plea and the order 

accepting the plea contained full explanations of the need to file a motion in arrest 

of judgment. On this record, Deng waived error by opting not to move in arrest of 
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judgment. See State v. Barnes, 652 N.W.2d 466, 468 (Iowa 2002). So her 

challenge must take the form of ineffective assistance of counsel.

We review her claim of ineffective assistance de novo. See State v. 

Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). To succeed, Deng must show by a 

preponderance of the evidence that (1) plea counsel failed to perform an essential 

duty, and (2) that failure resulted in prejudice.1 See State v. Thorndike, 860 

N.W.2d 316, 320 (Iowa 2015). Because Deng alleges ineffective assistance in 

connection with her guilty plea, she must show but for counsel’s breach a 

reasonable probability existed she would have insisted on going to trial. See State 

v. Tate, 710 N.W.2d 237, 240 (Iowa 2006).

Only in rare cases will the trial record alone be sufficient to decide a claim 

of ineffective assistance.

2

 State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997) 

(explaining we ordinarily preserve ineffective-assistance claims for PCR

proceedings to allow full elaboration of the facts surrounding counsel’s conduct). 

This is not one of those rare cases.

In her appellant’s brief, Deng asserts she is a legal permanent resident, 

commonly called a “green card” holder. But as the State points out, that 

information does not appear in the trial court record. We also have no insight into 

what Deng’s counsel advised her about the immigration consequences of her guilty 

 

1 Deng also alleges structural error. We see no support for that allegation in this 

record. See Krogmann v. State, 914 N.W.2d 293, 313 (Iowa 2018) (describing 

structural error as more than flaw in trial process, but affecting the framework within 

which the trial proceeds).

2 This appeal was pending on July 1, 2019; so we may reach Deng’s claim on 

direct appeal if the record is adequate. See State v. Macke, 933 N.W.2d 226, 228 

(Iowa 2019). 
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plea. Without those facts, we cannot determine whether counsel breached a duty

or whether Deng suffered prejudice. See State v. Porte, No. 15-1159, 2016 WL 

3556451, at *1 (Iowa Ct. App. June 29, 2016) (affirming conviction and preserving 

claim for PCR); State v. Cantarero-Diaz, No. 12-1694, 2013 WL 3274219, at *2 

(Iowa Ct. App. June 26, 2013) (same). For now, we affirm the marijuana 

possession conviction. Deng may revisit the challenge to her legal representation 

if she files for PCR. 

AFFIRMED.