Alan Enrique Enamorado, Applicant-Appellant v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: February 22, 2017
• Docket: 16-0616
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-0616 Filed February 22, 2017

ALAN ENRIQUE ENAMORADO, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.

Applicant appeals the district court denial of his application for

postconviction relief. AFFIRMED.

James A. Benzoni of Benzoni Law Office, P.L.C., Des Moines, for

appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee State.

Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. 2

BOWER, Judge.

Alan Enamorado is a native of Honduras, who came to the United States

in 1996 and has a limited understanding of the English language. He received

temporary protected immigration status, which could be revoked if he was

convicted of two or more misdemeanors. See 8 U.S.C.A. § 1254a. Enamorado

pled guilty to public intoxication in 2009, trespassing at Prairie Meadows

Racetrack and Casino in 2011, and a second public intoxication charge in 2014.

In all three of these cases Enamorado was not asked if he wanted, nor did he

request, an interpreter or lawyer.

In June 2015, Enamorado was notified his temporary protected

immigration status would be revoked because of his misdemeanor convictions.

Enamorado filed an application for postconviction relief, challenging all three

misdemeanor convictions. The district court granted his application regarding the

second public intoxication charge for lack of due process. Enamorado’s request

that the other misdemeanors be dismissed was denied as the post-conviction

relief statute of limitations had expired.1 Enamorado now appeals. “We

ordinarily review postconviction relief proceedings for errors at law.” Love v.

State, 543 N.W.2d 621, 623 (Iowa Ct. App. 1995) (citations omitted). However,

when relief is based on the violation of a constitutional right, we review the case

de novo. Id.

Enamorado claims both misdemeanors are void as illegal sentences

because he was not provided with an interpreter or attorney and the district

1 Postconviction relief applications must be filed within three years of the date of conviction. Iowa Code § 822.3 (2015). 3

courts failed to advise him of possible immigration consequences. An illegal

sentence may be challenged at any time, unaffected by the post-conviction relief

statute of limitations. See Iowa R. Civ. P. 2.24 (“The court may correct an illegal

sentence at any time.”). However, there is a distinction between an illegal

sentence and a sentence imposed illegally. Compare State v. Ceaser, 585

N.W.2d 192, 195 (Iowa 1998) (A “sentence is illegal because it is beyond the

power of the court to impose.” (citations omitted)), with State v. Wilson, 294

N.W.2d 824, 825 (Iowa 1980) (“[A] defective sentencing procedure does not

constitute an ‘illegal sentence.’”). The failure to provide an interpreter and

attorney, and the failure to advise Enamorado of possible immigration

consequences may be violations of his due process rights. However, these

violations do not create an illegal sentence. The district court sentenced

Enamorado to pay a sixty-five dollar fine for both his first public-intoxication

charge and for the trespassing charge. These sentences were not beyond the

district court’s power to impose and, therefore, were not illegal sentences. Even

if these sentences had been imposed illegally, they are subject to the post-

conviction relief statute of limitations. See Lopez-Penaloza v. State, 804 N.W.2d

537, 541-42 (Iowa Ct. App. 2011). The district court properly applied the statute.

Enamorado also claims the conviction for trespass is void because the

underlying conduct did not constitute a crime under Iowa Code section 716.7

(2011) and is therefore an illegal sentence. The Iowa Code prohibits “[e]ntering

or remaining upon or in property without justification after being notified or

requested to abstain from entering . . . by the owner, lessee, or person in lawful

possession, [or their agent].” Iowa Code § 716.7(2)(b). Enamorado signed a 4

voluntary lifetime ban, which the Iowa Racing and Gaming Commission requires

all casinos and racetracks to offer. See Iowa Code Ann. § 99D.7 (22-23).

Enmorado claims he was not banned by a manager or owner as the ban

was self-imposed. Enamorado also claims law enforcement was improperly

involved. Finally, he claims his conduct was not punishable as trespass as the

elements were not fulfilled.

Enamorado’s conduct was punishable as trespass as his actions fulfill the

requirements of Iowa Code section 716.7. The ban is statutorily mandated and

the casino was able to involve law enforcement in carrying out the ban. We also

find Enamorado was provided notice as required by the statute when he signed

the ban, which was printed on letter head from the casino and required him to

acknowledge he “may be criminally prosecuted” for returning.

We find Enamorado’s sentences were legal and the district court properly

applied the statute of limitations. Pursuant to Iowa Court Rule 21.26(1)(a) and

(e), we affirm the district court.

AFFIRMED.