State of Iowa v. Essossinam Cesar Talboussouma ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0337
Filed November 23, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ESSOSSINAM CESAR TALBOUSSOUMA,
Defendant-Appellant.
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Appeal from the Iowa District Court for Buena Vista County, Nancy L.
Whittenburg, Judge.
Essossinam Cesar Talboussouma appeals his conviction and sentence
following a guilty plea. AFFIRMED.
Mark C. Smith, Appellate Defender, and Brenda J. Gohr, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Tabor and Mullins, JJ.
2
MULLINS, Judge.
Essossinam Cesar Talboussouma appeals his conviction and sentence
following a guilty plea to assault with the intent to commit sexual abuse, claiming
his counsel failed to advise him of the potential consequences a guilty plea may
have on his immigration status. See State v. Tompkins, 859 N.W.2d 631, 637
(Iowa 2015) (providing, to prove an ineffective-assistance-of-counsel claim, an
appellant must show counsel failed to perform an essential duty and prejudice
resulted). We may consider an ineffective-assistance-of-counsel claim for the
first time on appeal, and our review is de novo. See State v. Philo, 697 N.W.2d
481, 485 (Iowa 2005). However, where further development of the record is
necessary to resolve the issue, we preserve claims for postconviction-relief
proceedings. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).
Here, in his exhaustive briefing, Talboussouma provides legal argument
as to (1) why his guilty plea should not be found to have waived his ineffective-
assistance-of-counsel claim, (2) why the distinction between direct and collateral
consequences should not apply in this matter, (3) why a district court’s instruction
that a conviction may impact a defendant’s immigration status does not
compensate for counsel’s own responsibility, (4) what the Iowa Constitution
requires in this context, and (5) what prejudice standard should be applied. But
Talboussouma has failed to provide a sufficient record to enable this court to
review this claim on direct appeal. Talboussouma simply summarily claims plea
counsel failed to inform him of the potential consequences of his plea with regard
to his immigration status and “the deportation consequences for Talboussouma
w[ere] truly clear.” As acknowledged by Talboussouma, “[o]nly in rare cases will
3
the trial record alone be sufficient to resolve [an ineffective-assistance-of-
counsel] claim on direct appeal.” State v. Straw, 709 N.W.2d 128, 133 (Iowa
2006). Talboussouma concedes the record available here is limited.1 We
conclude it is not sufficient to address his claim and preserve it for
postconviction-relief proceedings.
AFFIRMED.
1
As noted by the State,
Nothing in the record reveals what steps Defendant’s trial counsel took to
determine Defendant’s immigrant status, what, if any, research his trial
counsel did to figure out the possible deportation consequences of
Defendant’s guilty plea, and whether and what his trial counsel discussed
with regard to his immigration status and deportation consequences, and
the impact a guilty plea would have on him.
Instead, the available record includes a waiver of rights and guilty plea, in which
Talboussouma swears, “I understand that pleading guilty may result in deportation or
other adverse immigration consequences if I am not a citizen of the United States. I
understand one such consequence could include deportation from the United States
upon completion of any period of incarceration.” The plea concludes, “I nevertheless
affirm I want to plead guilty regardless of any immigration consequences that my guilty
plea may entail, even if one such consequence is my automatic removal from the United
States.” In his motion in arrest of judgment, Talboussouma claims his plea was
defective because of his inability “to understand the total effect of the guilty plea.”
Specifically, “[t]he part that was unascertainable was that it was in doubt that Defendant
would be or not be deported, only that it was possible he would be deported.” In the
district court’s order on the motion in arrest of judgment, the district court stated,
“Defendant testified that his attorney explained the meaning of [the above cited
paragraph that describes potential deportation consequences] of the written plea of
guilty and he understood its meaning.” It is upon this limited record that Talboussouma
makes his claim.