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 Mullins, JJ.
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TABOR, Judge.

Juan Aguilar-Garcia appeals the district court’s denial of his application for 

postconviction 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 AguilarGarcia 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 State charged Aguilar-Garcia with four counts of sexual abuse in the 

second degree, class “B” felonies, for allegedly performing sex acts on a child 

under the age of twelve. See Iowa Code §§ 709.1, 709.3(2) (2011). On the day 

trial was set to begin in April 2012, Aguilar-Garcia entered an Alford1plea to one 

count of sexual abuse in the second degree. As part of the plea agreement, the 

State agreed to drop the three remaining counts. 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 

postconviction 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 

imposition of a prison sentence without admitting participation in the crime.
3

The district court held a PCR trial on July 13, 2016, at which AguilarGarcia and his counsel both testified. Aguilar-Garcia told the court his attorney 

“should have talked with my witnesses and investigated this case more.” AguilarGarcia also 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 points, testifying he was ready to proceed to 

trial and did not give his client any guarantees concerning how long he would 

serve in prison before being deported.2

After hearing the testimony and reviewing the criminal case file, the PCR 

court denied Aguilar-Garcia’s application. On the question of trial preparation, 

the district court noted counsel had deposed the alleged victim and medical 

experts and counsel had reviewed all of the police reports. The court also 

credited counsel’s testimony that he 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 unprepared. On the claim

regarding immigration consequences, the PCR court found counsel did not 

misadvise Aguilar-Garcia concerning the amount of time he would spend in 

prison before any deportation.

Aguilar-Garcia now appeals the denial of his PCR application.

 

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 sentence before being deported. Rodriguez is fluent in Spanish and gave this 

information to Aguilar-Garcia.
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II. Standard of Review

We review claims of ineffective assistance of counsel de novo. See 

Ennenga v. State, 812 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, AguilarGarcia must overcome this court’s presumption counsel performed competently 

and must prove counsel’s performance fell below the standard of a reasonably 

competent attorney. See Straw, 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 

pleaded guilty and would have forced 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). AguilarGarcia argues his counsel did not sufficiently investigate and prepare for trial, 

and specifically 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 two potential witnesses
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and discovered they did not have any direct knowledge about the case. The only 

testimony the sisters could have offered 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 reports, and “videotapes and recordings of the interview of 

the victim.” His trial preparation also included deposing the alleged victim and 

medical personnel. 

Counsel did a reasonable inspection of the evidence and thus adequately 

prepared for a potential trial. Counsel’s assessment the sisters’ testimony would 

not be beneficial to Aguilar-Garcia’s case because they had no knowledge of the 

crime was a tactical decision that did not amount to ineffective 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 Padilla 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 later 
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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 clients 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 aggravated felony.” 

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

Aguilar-Garcia’s case differs from the situation in Morales Diaz. AguilarGarcia is not claiming he was unaware of possible adverse immigration 

consequences, but rather he is claiming he was not deported quickly and has 

had to serve more of his prison sentence than he expected. Aguilar-Garcia’s 

counsel consulted an immigration attorney and relayed that information to 

Aguilar-Garcia. That 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 id. Aguilar-Garcia was informed of possible negative 

immigration consequences but hoped he would be deported more quickly. 

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 

norms. Like the district court, we find the ineffective-assistance-of-counsel 
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claims raised by Aguilar-Garcia’s PCR application are without merit, and we 

therefore affirm.

AFFIRMED.