Meho Ibrahimovic, Applicant-Appellee v. State of Iowa ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0604
Filed October 26, 2016
MEHO IBRAHIMOVIC,
Applicant-Appellee,
vs.
STATE OF IOWA,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple, Judge.
The State appeals from the district court’s grant of the applicant’s
application for postconviction relief. AFFIRMED.
Alexander D. Smith of Parrish Kruidenier Dunn Boles Gribble Gentry
Brown & Bergmann L.L.P, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
2
MCDONALD, Judge.
Meho Ibrahimovic sought postconviction relief following his multiple
convictions for possession of stolen property. He claimed he received
constitutionally ineffective assistance of counsel when his counsel failed to
advise him of the immigration consequences of his guilty pleas. Ibrahimovic
moved for summary disposition on his claim, contending prejudice should be
presumed from the breach of duty. The district court granted Ibrahimovic’s
motion for summary disposition, concluding it was not disputed Ibrahimovic’s
counsel breached a duty and concluding Ibrahimovic was entitled to relief as a
matter of law because prejudice was presumed under the circumstances. The
State timely filed this appeal.
On appeal, the State contends the district court erred because the failure
to advise a defendant of the immigration consequences arising from conviction
following a guilty plea does not give rise to a presumption of prejudice. Instead,
the State argues, State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006), requires the
applicant to establish Strickland prejudice resulted from counsel’s failure to give
the required advice. The State did not raise this argument in the district court.
The entirety of the State’s substantive resistance to Ibrahimovic’s motion is as
follows:
Resistance is supported by [plea counsel’s] deposition, the guilty
pleas/sentencing transcripts and the court file in each of the above
numerated cases which the State requests that the Court take
Judicial Notice all of which support the finding that the Court should
deny the Motion for Summary Disposition.
The State did not argue prejudice should not be presumed or Ibrahimovic failed
to establish prejudice.
3
The State’s failure to make an argument of any sort in the district court
constitutes waiver of the argument. See State v. Baldon, 829 N.W.2d 785, 789
(Iowa 2013) (finding the State waived “argument by not presenting it to the
district court in a manner that would have allowed the court to fully and properly
address it”); In re N.V., 744 N.W.2d 634, 639 (Iowa 2008) (“Ordinarily, issues not
presented to the trial court are not reviewable when raised for the first time on
appeal.”); State v. Miranda, 672 N.W.2d 753, 761 (Iowa 2003) (“Because the
State does not separately address this issue, it has waived any argument to the
contrary.”); Reyna v. State, No. 13-0126, 2014 WL 1234142, at *2 (Iowa Ct. App.
Mar. 26, 2014) (holding State waived statute of limitations defense by failing to
raise it); Susie v. Bennett, No. 06-0116, 2006 WL 3436433, at *4 (Iowa Ct. App.
Nov. 30, 2006) (“Where an issue is not raised in resistance to a motion for
summary judgment, and is not included in a motion pursuant to Iowa Rule of Civil
Procedure 1.904(2), it is waived.”); Davison v. State, 671 N.W.2d 519, 521 (Iowa
Ct. App. 2003) (“The issue was not raised in their resistance to the State’s motion
for summary judgment, and the Davisons did not file a motion to enlarge
pursuant to Iowa Rule of Civil Procedure 1.904(2). Accordingly, the issue is
waived.”).
AFFIRMED.