IN THE COURT OF APPEALS OF IOWA No. 16

- 1232 Filed July 6, 2017

JUAN AGUILAR - GARCIA , Applicant

- Appellant,

vs. STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris , Judge.

An inmate appeals the court’s denial of his application for postconviction relief. AFFIRMED.

Andrew J. Smith of Mack, Hansen, Gadd, Armstrong & Brown P.C. , Storm Lake , for appellant. Thomas J. Miller, Attorney General, and Genevieve Reinkoester , Assistant Attorney General, for appellee State.

Considered by Vaitheswaran, P.J., and Tabor and Mul lins, JJ.2

TABOR, Judge. Juan Aguilar

- Garcia appeals the district court’s denial of his application for postconvict ion relief, asserting two deficiencies in the representation he received from his attorney. Aguilar

- Garcia argues (1) counsel did not sufficiently investigate his defense or prepare for a possible trial and (2) counsel misadvised him concerning the immigration consequences of his plea. Because Aguilar

Garcia fails to establish the performance of his counsel fell below professional

norms , we affirm the court’s denial of relief. I. Facts and Prior Proceedings The S tate charged Aguilar

- Garcia with four count s of sexual abuse in the

s econd degree, class “B” felonies, for allegedly performing sex acts on a child under the age of twelve. See Io wa Code § § 709.1, 709.3 (2) ( 201 1) . On the day trial was set to begin in April 2012 , Aguilar

- Garcia entered an Alford 1 plea to one count of sexual abuse in the second d egree. As p art of the plea agreement, the S tate agreed to drop the three remaining coun ts. The district court sentenced him to twenty
- five years in prison with a mandatory seventy

- percent minimum. Aguilar

- Garcia did not directly appeal his conviction and sentence. On August 29, 2013 , Aguilar

- Garcia filed a pro se application for postco nviction relief (PCR). On June 29, 2016, Aguilar

- Garcia filed a recast petition , alleging his trial counsel provided ineffective assistance by not giving him the correct information regarding possible immigration consequences and by
not being prepared for trial

.

1 Under North Carolina v. Alford , 400 U.S. 25, 37 (1970) , a defendant may consent to the impositi on of a prison sentence without admitting participation in the crime.3

The district court held a PCR t rial o n July 13, 2016 , at which Aguilar

Garcia and his counsel both testified. Aguilar

- Garcia t old the court his attorney

“ should have talked with my witnesses and investigated this case more .” Aguilar

Garcia als o testified he believed from speaking with his attorney that he would be deported shortly after he entered his guilty plea and would not have to serve the mandatory minimum of seventeen years. Attorney Tomas Rodriguez contradicted Aguilar

- Garcia on both p oints, testifying he was ready to proceed to trial and did not give his client any guarantee s concerning how long he would serve in prison before being deported. 2
After hearing the testimony and reviewing the criminal case file, t he PCR court denied Aguilar

- Garcia’s app lication. On the question of trial preparation, the district court noted counsel had deposed the all eged victim and medical experts and counsel had reviewed all of the police reports. The court also credited counsel’s testimony that h e spoke with the witnesses identified by Aguilar

- Garcia, who were sisters of the alleged victim, but that they had no direct knowledge of the alleged incidents and could only speak to his general character. The court did not accept the claim counsel was u nprepared. On the claim regarding immigration consequences , the PCR court found counsel did not misadvise A guilar

- Garcia concerning the amount of time he would spend in prison before any deportation. Aguilar

- Garcia now appeals the denial of his PCR appl ication

.

2 Rodriguez consulted an immigration attorney regarding Aguilar

- Garcia’s illegal

- alien status. The immigration attorney believed Aguilar

- Garcia would not serve the entire minimum senten ce befor e being deported. Rodriguez is fluent in Spanish and gave this information to Aguilar

- Garcia.4

II. Standard of Review We review claims of ineffective assistance of counsel de novo. See Ennenga v. State , 8 12 N.W.2d 696, 701 (Iowa 2012). To prevail , Aguilar

- Garcia must prove by a preponderance of the evidence that his counsel failed to perform an essential duty and prejudice resulted from this failure. See State v. Carroll , 767 N.W.2d 638, 641 (Iowa 2009); State v. Straw , 709 N.W.2d 128, 133 (Iowa 2006). To establish trial counsel failed to perform an essential duty, Aguilar

Garcia must overcome this court ’ s presumption counsel performed comp etently and must prove counsel’s performance fell below the standard of a reasonably competent attorney

. See Stra w , 709 N.W.2d at 133. An applicant’s “inability to prove either element is fatal” to the constitutional challenge. See State v. Graves , 668 N.W.2d 860, 869 (Iowa 2003). In the context of a guilty plea, Aguilar

- Garcia must prove but for counsel ’ s alleged errors, he would not have ple a d ed guilty and would have f orced the case to go to trial. See Carroll , 767 N.W.2d at 641. III. Ineffective Assistance of Counsel A. Investigation and Preparation Criminal defense counsel “ has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations
unnecessary .” Strickland v. Washington , 466 U.S. 668, 691 (1984)

. Aguilar

Garcia argues his counsel did not sufficiently investigate and prepare for trial, and specifica lly failed to timely speak to two sisters of the alleged victim who could have served as character witnesses for him

. But defense counsel explained at the PCR hearing that he did interview these t wo potential witnesses5

and discovered they did not have any direct knowledge about the case

. The only testimony the sisters could have offer ed was how well they knew Aguilar

- Garcia and the fact they did not believe he could have committed these acts. Further, counsel reviewed the county attorney’s file, including police reports and
statements , medical re ports, and “videotapes and recordings of the interview of the victim

. ” His trial preparation also included deposing the alleged v ictim and medical personnel. Counsel did a reasonable inspection of the evidence and thus adequately prepared for a potential trial. C ounsel’s assessment the sisters ’ testimony would not be beneficial to Aguilar

- Garcia’s case because they had no knowle dge of the crime was a tactical decision that d id not amount to ineffec tive assistance

.

“ When counsel makes a reasonable tactical decision, this court will not engage in second

- guessing.” Fryer v. State , 325 N.W.2d 400, 413 (Iowa 1982)

. We find no breach of duty on the claim of inadequate investigation and preparation.

B. Advice on Immigration Consequences Criminal defense attorneys have a duty to advise their clients regarding the immigration consequences of a guilty plea. Morales Diaz v. State , ___ N.W.2d ___, ___, 2017 WL 2491640, at *3 , (Iowa 2017) ; see also Padill a v. Kentucky

, 559 U.S. 356, 367

– 68 (2010). Here, defense counsel testified he informed Aguilar

- Garcia that deportation was likely but the timing was uncertain

. Aguilar

- Garcia testified that based on his attorney’s advice, he believed he would be incarcerated for less than one year before being deported. On appeal, Aguilar

- Garcia contends that advice was inaccurate because Aguilar

- Garcia later6

learned he might not be deported until he served his mandatory minimum
sentence. Aguilar

- Garcia ’s complaint that he was not deported more quickly is not the normal concern regarding adverse immigration consequences

. Generally, counsel’s duty is to warn noncitizen client s whether a conviction rendered them deportable. Padilla , 559 U.S. at 369. Our supreme court recently found a criminal defense attorney ineffective for failing to provide information concerning the “sweeping ramifications” of pleading guilty to “an aggra vated felony.” Morales Diaz

,
__ N.W.2d at __, 2017 WL 2491640, at * 7

. Aguilar

- Garcia’s case differs from the situation in Morales Diaz

. Aguilar

Garcia is not claiming he was un aware of possible adverse immigration
consequences , but rather he is claim ing he was not deported quickly and has had to serve more of his prison sentence than he expected

. Aguilar

- Garcia’s counsel c o nsult ed an immigration attorney and relay ed that information to Aguilar

- Garcia. Th at effort is distinct from Morales Diaz , where counsel shared his erroneous belief with his client that missing an immigration hearing foreclosed all possibility of relief. See i d. Aguilar

- Garcia was informed of possible ne gative immigration consequences but hop ed he would be deported more qui ckly. Because Aguilar

- Garcia’s attorney offered no guarantee when his client would be deported , Aguilar

- Garcia’s claim that counsel breached a duty is without merit. IV. Conclusion Aguilar

- Garcia fails to show his counsel performed below constitutional

norm s

. Like the district court, we find the ineffective

- assistance

- of

- counsel7

claims raised by Aguilar

- Garcia’s PCR application are without merit, and we therefore affirm. AFFIRMED.