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finding there was not an in-court colloquy and none of the documents signed by the defendant advised him of the immigration consequences, but preserving the ineffective-assistance claims for postconviction relief so that trial counsel can explain
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No. 3-982 / 03-1053
Filed March 10, 2004
Appeal from the Iowa District Court for Scott County, Mary E. Howes, District Associate Judge.
Naseer Ahmed Saqib appeals his conviction, following his guilty plea, for credit card fraud under $1000 in violation of Iowa Code section 715A.6(2) (2001). AFFIRMED.
Ta-Yu Yang, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, William Davis, County Attorney, and Mark Gellerman, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Zimmer and Miller, J.J.
Naseer Ahmed Saqib appeals his conviction, following his guilty plea, for credit card fraud under $1000 in violation of Iowa Code section 715A.6(2) (2001). He contends his trial counsel rendered ineffective assistance. We affirm Saqib's conviction and preserve his claim of ineffective assistance of counsel for a possible postconviction proceeding.
The State charged Saqib in this case with three counts of credit card fraud under $1000 in violation of section 715A.6(2), each an aggravated misdemeanor. Saqib, who was apparently in custody on charges in another case or cases as well, reached a plea agreement with the State in this case. The agreement provided he would plead guilty to one count, the other two counts would be dismissed, and the State would recommend he be sentenced to serve a term of 180 days in jail all of which would be suspended, pay a $500 fine and costs, and pay victim restitution and court-appointed attorney fees. The parties reduced their plea agreement to writing and filed it with the court.
Saqib also signed and filed a written plea of guilty. It referred to his written plea agreement. It listed, and Saqib acknowledged, certain rights that he was waiving by pleading guilty. In it Saqib also acknowledged understanding that he had to file a motion in arrest of judgment to challenge any irregularities or errors in his guilty plea, the time limits for filing any such motion, and that the failure to file such a motion would preclude him from asserting any defects in his plea in any appeal.
In addition to the written plea agreement and written guilty plea, Saqib also signed a third document, a "Consent to Waive Presence." It was filed at the same time as the other two documents. In it Saqib waived his right to be present for any guilty plea proceeding, waived his right to time before sentencing, and expressly acknowledged and waived his "right to challenge and/or appeal from any irregularities or errors in the taking of my guilt[y] plea by the filing of a Motion in Arrest of Judgment."
In an unreported proceeding the trial court accepted Saqib's guilty plea and entered judgment and sentence consistent with the parties' agreement. Saqib now appeals. He claims his trial counsel rendered ineffective assistance by not filing a motion in arrest of judgment to challenge his guilty plea on the ground that neither his written plea of guilty nor an in-court colloquy informed him that his guilty plea might affect his status under federal immigration laws. Saqib's failure to move in arrest of judgment does not bar a challenge to his guilty plea if the failure to file a motion in arrest of judgment resulted from ineffective assistance of counsel. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996).
When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove trial counsel was ineffective the defendant must show counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
Iowa Rule of Criminal Procedure 2.8(2)( b) provides in relevant part:
Before accepting a plea of guilty, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:
. . .
(3) That a criminal conviction, deferred judgment, or deferred sentence may affect a defendant's status under federal immigration laws.
Saqib asserts he is a "non-U.S. citizen." None of the documents Saqib signed and filed note that a resulting criminal conviction, deferred judgment, or deferred sentence may affect his status under federal immigration laws. No in-court colloquy so informed him. We conclude that rule 2.8(2)( b)(3) was not complied with.
Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead, 570 N.W.2d 97, 102 (Iowa 1997)). We prefer to leave ineffective-assistance-of-counsel claims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001); State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997). "[W]e preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims." Biddle, 652 N.W.2d at 203.
As set forth above, Saqib can succeed on his ineffectiveness claim only by establishing both that his counsel failed to perform an essential duty and that prejudice resulted. Wemark, 602 N.W.2d at 814; Hall v. State, 360 N.W.2d 836, 838 (Iowa 1985). No record has yet been made before the trial court on this issue. Trial counsel has not been given an opportunity to explain his actions and the trial court has not considered and ruled on the ineffectiveness claims. Under these circumstances, we pass the issue in this direct appeal and preserve it for a possible postconviction proceeding. State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
We affirm Saqib's conviction and preserve his ineffective assistance of counsel claim for a possible postconviction relief proceeding.