Friday, May 25, 2018

Bad Advice and Post Conviction Relief

The Iowa Supreme Court reversed the grant of post conviction relief.

This case presents the question whether bad advice from an immigration attorney to a client to try to get a driver’s license, which triggered a criminal investigation and ultimately a conviction of the client for a previously committed fraudulent practice, can be grounds under the Sixth Amendment or article I, section 10 for setting aside that conviction. As discussed herein, we conclude that no right to counsel had attached when the client went to the driver’s license station. This was before any investigation or criminal proceedings had begun. Accordingly, we reverse the district court ruling that granted postconviction relief to the client and remand for further proceedings consistent with this opinion.

The client came to the U.S. illegally from Mexico. He had used a false social security number to obtain titles to vehicles. He was able to obtain legal status and a legitimate ssn through the efforts of the attorney.

The problem came when the attorney advised the client to get a drivers license.

Before doing so, Hernandez Ruiz met with Said at Said’s law office. At that time, Said explained that the EAD and the social security number enabled Hernandez Ruiz to obtain a driver’s license and if he wanted to drive, he had to have a license. Said did not inquire if Hernandez Ruiz had previously registered vehicles with a fraudulent social security number or advise of the risk that the DOT would discover prior fraudulent titling even though he was aware of this risk. Additionally, Said did not inform Hernandez Ruiz that he did not need a license if he wasn’t going to be driving. In fact, Said testified he likely instructed Hernandez Ruiz to get a license.

When Hernandez Ruiz presented his documentation at the Ankeny driver’s license station, a clerk ran it through the system and found that vehicles had been titled under the same name and date of birth but with a different social security number. Hernandez Ruiz admitted to the clerk that he had previously titled and registered vehicles under a different social security number. The clerk copied Hernandez Ruiz’s documents and tried to get hold of a DOT investigator but was unable to do so at that time. She sent Hernandez Ruiz away without a driver’s license and turned over the materials to an investigator a few minutes later.

Meanwhile, Hernandez Ruiz spoke to Said about what had happened. Said advised him that he had three options: (1) go back to the DOT by himself and risk being charged with a felony; (2) have Said contact a DOT investigator and then return to the DOT with Said, where he would be charged with an aggravated misdemeanor (which would be pled down to a serious misdemeanor); or (3) consult with another attorney. Said did not advise Hernandez Ruiz that he was not obligated to return to the DOT or obtain a driver’s license. Hernandez Ruiz elected to have Said contact DOT Investigator Don Sharr and set up a time for the three of them to meet. On March 2, Hernandez Ruiz completed a fee contract with Said for this representation.

With Said as counsel, he pled guilty to a serious misdemeanor and again faced deportation. He was able to secure post conviction relief with new counsel and the State appealed.

Bad legal advice can lead to a criminal investigation in a variety of contexts. There are many ways in which a misstep can unwittingly set the authorities on one’s trail. Still, it isn’t ineffective assistance unless the bad advice occurs in a criminal case or an Iowa case “involving the life, or liberty of an individual.”

...We are well aware of the severe consequences for aliens whose immigration status is affected by state criminal convictions. See generally Diaz, 896 N.W.2d 723. However, we cannot find that Hernandez Ruiz’s conviction violated his constitutional right to counsel grounded in the Sixth Amendment or article I, section 10.

A special concurrence

But the holding in this case is quite narrow and fact specific—when there is no investigation of any kind underway and a client receives legal advice in a law office as in this case, no right to counsel attaches and therefore no claim of ineffective assistance of counsel may be raised in a subsequent criminal proceeding based on the poor advice given by the lawyer. The opinion in this case extends no farther than this uncontroversial point of law.

(Mike Frisch)

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