State of Iowa v. Ferdos Latif Al Yassiri

IN THE COURT OF APPEALS OF IOWA

No. 14-1908
Filed December 9, 2015

STATE OF IOWA,
Plaintiff-Appellee,

vs.

FERDOS LATIF AL YASSIRI,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Angeline M. Wilson

(bond modification hearing), District Associate Judge, Ian K. Thornhill (bond

review hearing), Thomas L. Koehler (guilty plea), and Sean W. McPartland

(sentencing hearing), Judges.

Ferdos Latif Al Yassiri appeals her convictions for four counts of identity

theft (as a habitual offender) and two counts of forgery. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik and Martha E. Trout,

Assistant Attorneys General, for appellee.

Considered by Doyle, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.

Ferdos Latif Al Yassiri appeals her conviction for four counts of identity

theft (as a habitual offender) and two counts of forgery. She claims the district

court erred in failing to advise her of the potential immigration consequences of

her guilty pleas and her trial counsel was ineffective for failing to alert the court to

this issue. We find the record is inadequate to address Al Yassiri’s ineffective-

assistance-of-counsel-claim and preserve that issue for possible postconviction-

relief proceedings. We affirm Al Yassiri’s conviction.

On October 1, 2013, the State charged Al Yassiri with identity theft, in

violation of Iowa Code section 715A.8(2) and (3) (2013). The State also claimed

she was an habitual offender. On March 25, 2014, the State charged Al Yassiri

with one count of ongoing criminal conduct, in violation of Iowa Code section

706A.2(4), three counts of identity theft, in violation of section 715A.8(2) and (3),

and two counts of forgery, in violation of section 715A.2(1)(a). Pursuant to a plea

agreement, Al Yassiri agreed to plead guilty to identify theft as an habitual

offender and receive a fifteen-year prison sentence with a three-year mandatory

minimum and a suspended fine. She also agreed to plead guilty to the three

additional counts of identity theft and two counts of forgery, and receive five-year

prison sentences to run concurrently with the other charges, also with suspended

fines.

Al Yassiri is an Iraqi immigrant currently in the United States as a lawful

permanent resident with a green card. Other than a reference to deportation at a

bond hearing, Al Yassiri was not advised at any stage of the proceeding her
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convictions may result in deportation or other adverse immigration

consequences. See Iowa R. Crim. P. 2.8(2)(b)(5). She now appeals claiming

her trial counsel was ineffective for failing to advise her of the potential

consequences her guilty pleas may have on her immigration status.

We review Al Yassari’s claim of ineffective assistance of counsel de novo.

See Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). An ineffective-

assistance-of-counsel claim requires a demonstration of both ineffective

assistance and prejudice. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001)

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The ineffective-

assistance prong requires proof the attorney performed below the standard

demonstrated by a reasonably competent attorney as compared against

prevailing professional norms. Id. There is a strong presumption the attorney

performed his duties competently. Id. Once the applicant has shown ineffective

assistance, he must also show the error caused prejudice. Id. at 143. The

prejudice prong requires proof that, but for the ineffective assistance, “the result

of the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at

694). The applicant must “show that counsel’s deficient conduct more likely than

not altered the outcome in the case.” Id. (citing Strickland, 466 U.S. at 693). Al

Yassari must prove both the “essential duty” and “prejudice” elements by a

preponderance of evidence. See Ennenga, 812 N.W.2d at 701.

A defendant may raise an ineffective-assistance claim on direct appeal if

there are reasonable grounds to believe the record is adequate to address the

claim on direct appeal. Iowa Code § 814.7(2). When an ineffective-assistance-
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of-counsel claim is raised on direct appeal, we may decide the record is

adequate to decide the claim or we may choose to preserve the claim for

postconviction-relief proceedings. Id. § 814.7(3). Only in rare cases will the

district court record alone be sufficient to resolve the claim on direct appeal.

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006); see also State v. Atley, 564

N.W.2d 817, 833 (Iowa 1997).

An attorney’s duty is not merely to refrain from giving affirmative

misadvice, but defense counsel must inform a client whether a plea carries a risk

of deportation. Padilla v. Kentucky, 559 U.S. 356, 373 (2010). “When the law is

not succinct and straightforward . . . a criminal defense attorney need do no more

than advise a noncitizen client that pending criminal charges may carry a risk of

adverse immigration consequences.” Id. at 369. When deportation

consequences are clear, the duty to give correct advice is equally clear. Id. In

order to prevail on a claim of ineffective assistance, a defendant must show not

only that counsel failed to advise him or her of the risk of adverse immigration

consequences, but also the defendant must meet the prejudice requirement by

showing “a decision to reject the plea bargain would have been rational under the

circumstances.” Id. at 372.

Here, the State admits Al Yassari’s trial counsel breached an “essential

duty” by failing to inform her of the potential immigration consequences of her

plea. See Iowa R. Crim. P. 2.8(2)(b)(5); see also Padilla, 559 U.S. at 373.

However, the State claims Al Yassari was not prejudiced because she cannot
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demonstrate, but for her trial counsel’s errors, she would not have pleaded guilty

and insisted on going to trial.

The record shows the issue of Al Yassiri’s potential deportation was

mentioned—for the only time—at a bond review hearing. Counsel stated:

[Al Yassiri] called me and we had a discussion regarding
some immigration issues and these pending charges when she was
represented by the Public Defender’s Office. She called me again
after she missed her pretrial, indicating that she was in trouble and
wanted to know if I could be involved in this case.
My understanding is that there—there wasn’t a lot of
communication prior to the pretrial on August 8th. At the very least,
I wasn’t aware of the June failure to appear until after I got involved.
She was very concerned about deportation. I was able to
call Richard Moore at the Cedar Rapids Office of Immigration and
Naturalization Service, and he indicated that he was familiar with
her case and that she had a removal order from a prior conviction
about two or three years ago for similar charges and that a removal
order was standing for her, but at this point in time the government
is just not sending people back to Iraq for obvious reasons, and she
was very scared about taking a plea bargain or going to the plea
hearing on August 8th regarding the issue because she didn’t know
what was going to happen.

Al Yassiri claims the convictions in this case make it more likely she will be

deported. The State counters by highlighting the fact Al Yassiri was already

subject to deportation due to a past conviction and, therefore, her not being

informed of the deportation consequences in this case had no effect on her

immigration status. Alternatively, the State claims Al Yassiri cannot show the

outcome of this case would have been different if her counsel had informed her

of the immigration consequences of her convictions.

We find the record is inadequate to determine the implications Al Yassiri’s

convictions may have on her immigration status; therefore, we unable to

determine if Al Yassiri was prejudiced by counsel’s error. See Iowa Code
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§ 814.7(2); Straw, 709 N.W.2d at 133. We affirm Al Yassiri’s convictions and

preserve this matter for possible postconviction proceedings.

AFFIRMED.