IN THE COURT OF APPEALS OF IOWA
No. 17-1318 Filed August 1, 2018
STATE OF IOWA, Plaintiff-Appellee,
vs.
EDUARDO CANO, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple (motion for revocation of deferred judgment) and Bradley J. Harris
(guilty plea), Judges.
Eduardo Cano appeals after pleading guilty to assault with intent to commit
serious injury. AFFIRMED.
Rockne O. Cole of Cole Law Firm, P.C., Iowa City, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2
DOYLE, Judge.
Eduardo Cano appeals after pleading guilty to assault with intent to commit
serious injury, asserting a claim of ineffective assistance for counsel’s failure to
advise him of certain immigration consequences of his plea. Upon our review, we
affirm his conviction, judgment, and sentence, and we preserve his claim for
possible postconviction-relief proceedings to allow the record to be developed.
I. Background Facts and Proceedings.
In February 2016, the State filed a criminal complaint alleging Eduardo
Cano willfully caused bodily injury to another, in violation of Iowa Code section
708.4(2) (2016), a class “D” felony. Cano was appointed counsel.
In April 2017, Cano entered a written guilty plea to the lesser-included
offense of assault with intent to inflict serious injury, in violation of section 708.2(1),
an aggravated misdemeanor. Among other things, the guilty plea form, signed by
Cano and his attorney, stated, “I understand that my conviction for the crime or
crimes in this guilty plea may result in adverse immigration consequences,
including deportation, if I am not a citizen of the United States.” Cano also waived
his rights to be present in court for the entry of his guilty plea and for his sentencing.
The court accepted his plea, and the judgment was deferred. A month later, an
appearance by privately-retained counsel was filed on Cano’s behalf. At the same
time, Cano filed an application for interlocutory review of the grant of his deferred
judgment. His application stated: “What would ordinarily be a fantastic result for a
US Citizen, has resulted in drastic adverse immigration consequences for [Cano].
He now sits in detention and faces the loss of his Deferred Action for Childhood
Arrivals due to the deferred judgment that was granted . . . .” He also filed a motion 3
in district court to withdraw consent on request for a deferred judgment. The Iowa
Supreme Court denied his request for interlocutory appeal and directed the district
court “to hold a hearing and enter a ruling on [Cano’s] pending motion to withdraw
his consent to the deferred judgment.”
Thereafter, the district court set a hearing on Cano’s motion. Cano then
filed a motion in arrest of judgment. Later, he filed a “Defendant’s Consent to
Revocation of Probation” wherein he consented to having his deferred judgment
revoked. In a motion to reset the hearing, Cano stated the parties had agreed that
his probation should be revoked. At the hearing, the court heard all pending
motions. There, Cano’s current counsel conceded the motion in arrest of judgment
was untimely filed and explained:
The only way to excuse that is ineffective assistance of prior counsel. I think given that the time frame that we’re under at this point, our preference would be that we make an offer of proof on the issue of the prior ineffective assistance of counsel, and that if the court is able to either grant or reject it, . . . I guess we’d request a ruling.
As part of his offer of proof, Cano testified his prior counsel had not discussed
specific immigration consequences with him prior to his entry of the written guilty
plea, including that his deferred judgment could be considered a conviction and
that the offense to which he pled guilty was classified as a crime involving moral
turpitude. Cano testified he would not have pled guilty if his counsel had advised
him of these and other specific consequences, “[b]ecause I’ve got my family here,
all my family’s here, and I got no family in Mexico so I want to stay with my family.
So I would not take that risk of being detained and facing deportation.”
On cross-examination, Cano testified he told his prior counsel he was not a
citizen of the United States, and he maintained that was the only conversation he 4
had with his prior counsel about immigration. Cano testified he did not read the
written guilty plea form, “because I had asked [prior counsel] if I was going to have
any problems in the future and he told me no, you’re not. So I trust on him and I
put my signature on it.”
Cano waived attorney-client privilege with his prior counsel, and prior
counsel testified at the hearing. Prior counsel testified he had multiple
conversations with Cano about immigration, and he told Cano “[a]ny conviction
can adversely affect his immigration status” and Cano “could be subject to
deportation.” Specifically, prior counsel “encouraged [Cano] to confer with an
attorney that specializes in immigration” and testified he himself had conferred with
Cano’s immigration attorney by phone.1 However, prior counsel was not asked at
the hearing—nor did he volunteer—any specific details about his conversations
with the immigration attorney. Prior counsel testified he “never had an opportunity”
to explain to Cano the concept of a motion in arrest of judgment, and he admitted
he had not specifically advised Cano the offense underlying the deferred judgment
could be classified as a felony or as a crime involving moral turpitude, among other
things. Following the hearing, the district court accepted Cano’s consent to the
revocation of his deferred judgment. Cano requested immediate sentencing. The
court revoked Cano’s deferred judgment and probation, entered judgment, and
imposed a sentence.
1 Prior counsel testified he assumed the phone call was lined up by Cano, explaining, “I don't know why anyone would just call me out of the blue wanting to discuss this specific case.” We cannot discern from the record whether or not Cano had any direct communications with immigration counsel. 5
II. Discussion.
Cano now appeals,2 arguing his prior counsel rendered ineffective
assistance when he failed to give specifics as to possible immigration
consequences of his guilty plea, citing the seminal cases Padilla v. Kentucky, 559
U.S. 356, 357 (2010), and Morales Diaz v. State, 896 N.W.2d 723, 728 (Iowa
2017). In order to establish ineffective assistance of counsel, Cano must show by
a preponderance of the evidence that his trial counsel failed to perform an essential
duty and that failure prejudiced him. See Morales Diaz, 896 N.W.2d at 727. Our
review is de novo. See id.
Generally, we preserve claims of ineffective assistance of counsel for
postconviction-relief proceedings to allow the record to be developed on various
issues. See State v. Gomez Garcia, 904 N.W.2d 172, 186 (Iowa 2017); State v.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF IOWA
No. 17-1318 Filed August 1, 2018
STATE OF IOWA, Plaintiff-Appellee,
vs.
EDUARDO CANO, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple (motion for revocation of deferred judgment) and Bradley J. Harris
(guilty plea), Judges.
Eduardo Cano appeals after pleading guilty to assault with intent to commit
serious injury. AFFIRMED.
Rockne O. Cole of Cole Law Firm, P.C., Iowa City, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ. 2
DOYLE, Judge.
Eduardo Cano appeals after pleading guilty to assault with intent to commit
serious injury, asserting a claim of ineffective assistance for counsel’s failure to
advise him of certain immigration consequences of his plea. Upon our review, we
affirm his conviction, judgment, and sentence, and we preserve his claim for
possible postconviction-relief proceedings to allow the record to be developed.
I. Background Facts and Proceedings.
In February 2016, the State filed a criminal complaint alleging Eduardo
Cano willfully caused bodily injury to another, in violation of Iowa Code section
708.4(2) (2016), a class “D” felony. Cano was appointed counsel.
In April 2017, Cano entered a written guilty plea to the lesser-included
offense of assault with intent to inflict serious injury, in violation of section 708.2(1),
an aggravated misdemeanor. Among other things, the guilty plea form, signed by
Cano and his attorney, stated, “I understand that my conviction for the crime or
crimes in this guilty plea may result in adverse immigration consequences,
including deportation, if I am not a citizen of the United States.” Cano also waived
his rights to be present in court for the entry of his guilty plea and for his sentencing.
The court accepted his plea, and the judgment was deferred. A month later, an
appearance by privately-retained counsel was filed on Cano’s behalf. At the same
time, Cano filed an application for interlocutory review of the grant of his deferred
judgment. His application stated: “What would ordinarily be a fantastic result for a
US Citizen, has resulted in drastic adverse immigration consequences for [Cano].
He now sits in detention and faces the loss of his Deferred Action for Childhood
Arrivals due to the deferred judgment that was granted . . . .” He also filed a motion 3
in district court to withdraw consent on request for a deferred judgment. The Iowa
Supreme Court denied his request for interlocutory appeal and directed the district
court “to hold a hearing and enter a ruling on [Cano’s] pending motion to withdraw
his consent to the deferred judgment.”
Thereafter, the district court set a hearing on Cano’s motion. Cano then
filed a motion in arrest of judgment. Later, he filed a “Defendant’s Consent to
Revocation of Probation” wherein he consented to having his deferred judgment
revoked. In a motion to reset the hearing, Cano stated the parties had agreed that
his probation should be revoked. At the hearing, the court heard all pending
motions. There, Cano’s current counsel conceded the motion in arrest of judgment
was untimely filed and explained:
The only way to excuse that is ineffective assistance of prior counsel. I think given that the time frame that we’re under at this point, our preference would be that we make an offer of proof on the issue of the prior ineffective assistance of counsel, and that if the court is able to either grant or reject it, . . . I guess we’d request a ruling.
As part of his offer of proof, Cano testified his prior counsel had not discussed
specific immigration consequences with him prior to his entry of the written guilty
plea, including that his deferred judgment could be considered a conviction and
that the offense to which he pled guilty was classified as a crime involving moral
turpitude. Cano testified he would not have pled guilty if his counsel had advised
him of these and other specific consequences, “[b]ecause I’ve got my family here,
all my family’s here, and I got no family in Mexico so I want to stay with my family.
So I would not take that risk of being detained and facing deportation.”
On cross-examination, Cano testified he told his prior counsel he was not a
citizen of the United States, and he maintained that was the only conversation he 4
had with his prior counsel about immigration. Cano testified he did not read the
written guilty plea form, “because I had asked [prior counsel] if I was going to have
any problems in the future and he told me no, you’re not. So I trust on him and I
put my signature on it.”
Cano waived attorney-client privilege with his prior counsel, and prior
counsel testified at the hearing. Prior counsel testified he had multiple
conversations with Cano about immigration, and he told Cano “[a]ny conviction
can adversely affect his immigration status” and Cano “could be subject to
deportation.” Specifically, prior counsel “encouraged [Cano] to confer with an
attorney that specializes in immigration” and testified he himself had conferred with
Cano’s immigration attorney by phone.1 However, prior counsel was not asked at
the hearing—nor did he volunteer—any specific details about his conversations
with the immigration attorney. Prior counsel testified he “never had an opportunity”
to explain to Cano the concept of a motion in arrest of judgment, and he admitted
he had not specifically advised Cano the offense underlying the deferred judgment
could be classified as a felony or as a crime involving moral turpitude, among other
things. Following the hearing, the district court accepted Cano’s consent to the
revocation of his deferred judgment. Cano requested immediate sentencing. The
court revoked Cano’s deferred judgment and probation, entered judgment, and
imposed a sentence.
1 Prior counsel testified he assumed the phone call was lined up by Cano, explaining, “I don't know why anyone would just call me out of the blue wanting to discuss this specific case.” We cannot discern from the record whether or not Cano had any direct communications with immigration counsel. 5
II. Discussion.
Cano now appeals,2 arguing his prior counsel rendered ineffective
assistance when he failed to give specifics as to possible immigration
consequences of his guilty plea, citing the seminal cases Padilla v. Kentucky, 559
U.S. 356, 357 (2010), and Morales Diaz v. State, 896 N.W.2d 723, 728 (Iowa
2017). In order to establish ineffective assistance of counsel, Cano must show by
a preponderance of the evidence that his trial counsel failed to perform an essential
duty and that failure prejudiced him. See Morales Diaz, 896 N.W.2d at 727. Our
review is de novo. See id.
Generally, we preserve claims of ineffective assistance of counsel for
postconviction-relief proceedings to allow the record to be developed on various
issues. See State v. Gomez Garcia, 904 N.W.2d 172, 186 (Iowa 2017); State v.
Virgil, 895 N.W.2d 873, 879 (Iowa 2017). However, we may resolve the claim on
direct appeal if the record before us is adequate. Virgil, 895 N.W.2d at 879. Cano
maintains the record is adequate here to address his ineffective-assistance-of-
counsel claim because “the record, as it stands now, is that Mr. Cano has identified
several concrete and readily ascertainable adverse consequences arising from
this conviction. His [prior] lawyer confirmed that he conveyed none of those
consequences to Mr. Cano. That establishes deficient performance. QED.” He
also maintains his testimony that he would not have pled guilty establishes that he
was prejudiced by the alleged breach. We disagree.
2 We note that the parts of the record appearing in the parties’ appendix are in reverse chronological order. Iowa Rule of Appellate Procedure 6.905(6) requires “other parts of the record of proceedings relevant to the issues raised in the appeal shall be . . . in the chronological order in which the proceedings occurred.” 6
To be sure, Morales Diaz mandates that defense counsel inform their client
“of the direct, severe, and certain immigration consequences of pleading guilty.”
896 N.W.2d at 732. Nevertheless, we conclude the minimal record in this case
leaves unknown the question of whether Cano’s prior counsel breached his duty
under Morales Diaz, particularly in light of Cano’s inconsistent testimony of what
advice his prior attorney actually gave, his signature on the guilty plea form stating
he was advised of the relevant consequences by his counsel, and his and his prior
attorney’s conversations with an immigration attorney about the relevant
consequences. Prior counsel’s testimony on this limited record certainly suggests
Cano had been advised of those consequences, even if prior counsel was not the
one who specifically related the information to Cano. We find the record
insufficient to make any determination whether prior counsel breached his duty.
III. Conclusion.
When the record is inadequate to resolve an ineffective-assistance-of-
counsel claim, we must preserve it for postconviction-relief proceedings. See
State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). Accordingly, we affirm
Cano’s conviction, judgment, and sentence, and we preserve his ineffective-
assistance-of-counsel claim for possible postconviction-relief proceedings to allow
the record to be developed.
AFFIRMED.