Guillermo Hernandez Ruiz v. State of Iowa

IN THE SUPREME COURT OF IOWA
No. 16–1619
Filed May 25, 2018
GUILLERMO HERNANDEZ RUIZ,
Appellee,
vs.
STATE OF IOWA,
Appellant.
Appeal from the Iowa District Court for Polk County, Lawrence P.
McLellan, Judge.
The State appeals the district court’s grant of postconviction relief
based on a finding of ineffective assistance of counsel. DISTRICT COURT
JUDGMENT REVERSED AND CASE REMANDED.
Thomas J. Miller, Attorney General, Thomas J. Ogden, Assistant
Attorney General, John P. Sarcone, County Attorney, and Kevin Hathaway,
Assistant County Attorney, for appellant.
Margaret A. Hanson and Nichole Miras Mordini of Davis, Brown,
Koehn, Shors & Roberts, P.C., Des Moines, for appellee.
2
MANSFIELD, Justice.
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.
I. Facts and Proceedings.
Guillermo Hernandez Ruiz is a native and citizen of Mexico. He
entered the United States without permission in November of 1999. After
entering the United States, Hernandez Ruiz obtained vehicle titles in his
name using a false social security number that did not belong to him.
On November 3, 2010, the Department of Homeland Security
initiated removal proceedings against Hernandez Ruiz based on section
212(a)(6)(A)(i) of the Immigration and Nationality Act. See 8 U.S.C.
§ 1182(a)(6)(A)(i) (2006 & Supp. III 2009). 1 Hernandez Ruiz hired attorney
Michael Said to represent him in the removal proceedings.
1This subsection provides as follows:
(a) Classes of aliens ineligible for visas or admission
Except as otherwise provided in this chapter, aliens who are
inadmissible under the following paragraphs are ineligible to receive visas
and ineligible to be admitted to the United States:
....
(6) Illegal entrants and immigration violators
(A) Aliens present without admission or parole
3
On February 28, 2011, Said filed an application for cancellation of
removal with the United States Citizenship and Immigration Service (CIS)
on Hernandez Ruiz’s behalf, indicating that Hernandez Ruiz had children
who were American citizens who would suffer hardship if he were
deported. See id. § 1229b(b)(1). 2 CIS received the application on March
1. As a result, Hernandez Ruiz was able to obtain an Employment
Authorization Document (EAD) and valid social security number.
That day, Hernandez Ruiz went to the Ankeny driver’s license station
of the Iowa Department of Transportation (DOT) and attempted to use his
(i) In general
An alien present in the United States without being
admitted or paroled, or who arrives in the United States at any
time or place other than as designated by the Attorney General,
is inadmissible.
8 U.S.C. § 1182(a)(6)(A)(i).
2This subsection provides as follows:
(b) Cancellation of removal and adjustment of status for certain
nonpermanent residents
(1) In general
The Attorney General may cancel removal of, and adjust to the
status of an alien lawfully admitted for permanent residence, an alien
who is inadmissible or deportable from the United States if the alien—
(A) has been physically present in the United States for a
continuous period of not less than 10 years immediately preceding
the date of such application;
(B) has been a person of good moral character during such
period;
(C) has not been convicted of an offense under section
1182(a)(2) [includes conviction of a crime of moral turpitude],
1227(a)(2) [includes conviction of a crime of moral turpitude], or
1227(a)(3) [failure to register and falsification of documents] of this
title, subject to paragraph (5); and
(D) establishes that removal would result in exceptional and
extremely unusual hardship to the alien’s spouse, parent, or child,
who is a citizen of the United States or an alien lawfully admitted
for permanent residence.
8 U.S.C. § 1229b(b)(1).
4
EAD and social security number to get a driver’s 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. 3
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
3Hernandez Ruiz had been cited several times in 2009 and 2010 for driving
without a license. In October 2010, he had been convicted of driving while under
suspension or revocation. Since then, according to his testimony, he had been getting
rides and not driving himself.
5
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.
On March 9, Hernandez Ruiz and Said met with Investigator Sharr
at the DOT. During the meeting, Hernandez Ruiz signed a voluntary
statement admitting several instances of registering cars under a false
social security number. Because of Hernandez Ruiz’s candor, Sharr
decided to charge Hernandez Ruiz with one count of fraudulent practices
in the third degree in violation of Iowa Code section 714.11, an aggravated
misdemeanor. See Iowa Code § 714.11 (2011). Said represented
Hernandez Ruiz in his criminal case. On June 1, 2012, Hernandez Ruiz
pled guilty to the lesser included offense of fraudulent practices in the
fourth degree, a serious misdemeanor. See id. § 714.12. Hernandez Ruiz
received a 180-day sentence, which was suspended, and was required to
perform fifty hours of community service.
As a result of this conviction, on September 6, 2013, the Department
of Homeland Security filed a motion to pretermit Hernandez Ruiz’s
application for cancellation of removal, urging that fraudulent practices in
the fourth degree was a crime involving moral turpitude rendering
Hernandez Ruiz ineligible for relief. See 8 U.S.C. § 1229b(b)(1). The
immigration court agreed. Consequently, Hernandez Ruiz once again
faced deportation.
Hernandez Ruiz retained new counsel and filed an application for
postconviction relief on May 29, 2015, alleging he had received ineffective
assistance of counsel from Said. The case went to trial on May 31, 2016.
6
On August 29, the district court granted Hernandez Ruiz’s application and
vacated and set aside his guilty plea and sentence. The court found that
Said breached his essential duty to inform [Hernandez] Ruiz
that he did not need to obtain a driver’s license and explain to
him that he could be charged with a crime knowing that the
DOT was investigating matters of this sort and that the charge
could have an adverse impact on his immigration status. His
failure to provide this advice placed [Hernandez] Ruiz into a
situation resulting in the initiation of criminal proceedings.[4]
The court also rejected the State’s argument that the right to counsel had
not attached. The State appealed, and we retained the appeal.
II. Standard of Review.
Our review of postconviction-relief proceedings is typically for
correction of errors at law. Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017);
see Iowa R. App. P. 6.907. But when we are reviewing an ineffective-
assistance-of-counsel claim, we do so de novo because such claims are
constitutional in nature. Diaz, 896 N.W.2d at 727; Millam v. State, 745
N.W.2d 719, 721 (Iowa 2008).
III. Analysis.
The State seeks reversal of the district court’s ruling on the ground
that no constitutional right to counsel had attached at the time of Said’s
alleged ineffective assistance. See State v. Dudley, 766 N.W.2d 606, 617
(Iowa 2009) (“Without a right to counsel, [a defendant] also has no
commensurate right to effective assistance from that counsel.” (Alteration
in original.) (quoting White v. Schotten, 201 F.3d 743, 752 (6th Cir. 2000),
overruled on other grounds by Lopez v. Wilson, 426 F.3d 339, 341 (6th Cir.
2005) (en banc))); see also Wainwright v. Torna, 455 U.S. 586, 587–88, 102
S. Ct. 1300, 1301 (1982) (per curiam) (“Since respondent had no
4The district court found a breach of essential duty only with respect to Hernandez
Ruiz’s first trip to the DOT on March 1, not his second.
7
constitutional right to counsel, he could not be deprived of the effective
assistance of counsel by his retained counsel’s failure to file the
application timely.”). Hernandez Ruiz does not dispute that a right of
counsel must have attached in order for his claim to succeed.
A. The Sixth Amendment Right to Counsel. The Sixth
Amendment provides, “In all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S.
Const. amend. VI. The Supreme Court has held the right “does not attach
until a prosecution is commenced.” Rothgery v. Gillespie County, 554 U.S.
191, 198, 128 S. Ct. 2578, 2583 (2008) (quoting McNeil v. Wisconsin, 501
U.S. 171, 175, 111 S. Ct. 2204, 2207 (1991)). A prosecution commences
at “the initiation of adversary judicial criminal proceedings.” Id. (quoting
United States v. Gouveia, 467 U.S. 180, 188, 104 S. Ct. 2292, 2297 (1984)).
This could be “by way of formal charge, preliminary hearing, indictment,
information, or arraignment.” Id. (quoting Gouveia, 467 U.S. at 188, 104
S. Ct. at 2297).
The rule is not “mere formalism,” but a recognition of the point
at which “the government has committed itself to prosecute,”
“the adverse positions of government and defendant have
solidified,” and the accused “finds himself faced with the
prosecutorial forces of organized society, and immersed in the
intricacies of substantive and procedural criminal law.”
Id. (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 1882 (1972)
(plurality opinion)). It is immaterial to this analysis whether the
prosecutor is aware of the initial proceeding or involved in its conduct. Id.
at 194–95, 128 S. Ct. at 2581. The Court and the vast majority of states
have determined
a criminal defendant’s initial appearance before a judicial
officer, where he learns the charge against him and his liberty
is subject to restriction, marks the start of adversary judicial
8
proceedings that trigger attachment of the Sixth Amendment
right to counsel.
Id. at 213, 128 S. Ct. at 2592; accord id. at 203–04 & n.14, 128 S. Ct. at
2586–87 & n.14 (citing cases and statutes from forty-three states that
“take the first step toward appointing counsel ‘before, at, or just after
initial appearance’ ” (citation omitted)).
At the time of Hernandez Ruiz’s counsel’s alleged breach, no
prosecution had commenced because no “adversary judicial criminal
proceedings” had been initiated. See id. at 198, 128 S. Ct. at 2583 (quoting
Gouveia, 467 U.S. at 188, 104 S. Ct. at 2297). Hernandez Ruiz had not
been brought before a judicial officer for arraignment. See Iowa R. Crim.
P. 2.8 (Iowa uses arraignments instead of initial appearances.). No charges
had been filed; no criminal investigation had even begun. The core of
Hernandez Ruiz’s argument, in fact, is that Said’s bad advice to go get a
driver’s license triggered a criminal investigation.
The district court relied on a federal district court case, United States
v. Bowers, 517 F. Supp. 666 (W.D. Pa. 1981), in finding that a Sixth
Amendment right attached here. In Bowers, before the defendant had
been charged, the government informed the defendant’s counsel that the
defendant would be granted “informal immunity from prosecution in
return for her cooperation with the government.” Id. at 669. After counsel
failed to respond to the government’s offer on two occasions, the defendant
was indicted by a grand jury. Id. The court concluded “[i]f counsel fails to
inform his client of a pending proposal, prior to adversary criminal
proceedings, and the client is prejudiced, fairness and due process dictate
relief.” Id. at 671. Because counsel’s failure turned the case into one “of
substantial and continuing prejudice to a defendant who would not
otherwise have been indicted,” the court concluded the appropriate
9
remedy under the Sixth Amendment was dismissing the indictment. Id.
at 672.
Bowers, however, does not persuade us. First, Bowers predates
relevant Supreme Court precedents such as Gouveia and Rothgery.
Bowers is a federal district court opinion and does not explicitly analyze
attachment of the Sixth Amendment right to counsel, whereas Gouveia
and Rothgery are Supreme Court opinions squarely addressing the right-
to-counsel attachment issue. See State v. Green, 896 N.W.2d 770, 776
(Iowa 2017) (applying Rothgery and noting no Sixth Amendment right to
counsel had attached because the interview at issue occurred before any
of the formal events listed in Rothgery).
Second, in Bowers the government had already marshalled its forces
and was ready and going to prosecute if the defendant did not accept its
immunity offer, whereas here, the government had yet to begin any sort of
criminal investigation when Hernandez Ruiz’s counsel allegedly breached
a duty. See 517 F. Supp. at 669.
For these reasons, we find that no Sixth Amendment right to counsel
had attached at the time Said advised Hernandez Ruiz regarding getting a
driver’s license on March 1, 2011.
B. The Article I, Section 10 Right to Counsel. The next question
is whether a right to counsel under article I, section 10 had attached.
We first must decide, however, whether article I, section 10 is
properly before us. Hernandez Ruiz did not mention it in the district court
proceedings. In his postconviction-relief application, Hernandez Ruiz did
put an “X” in the box that stated, “The conviction or sentence was in
violation of the Constitution of the United States or the Constitution or
laws of this state.” He argued that he had received ineffective assistance
10
of counsel. The district court cited both the Sixth Amendment and article
I, section 10 in its ruling, although its analysis did not distinguish the two.
Under existing precedent, these actions are sufficient to preserve
both claims. See State v. Coleman, 890 N.W.2d 284, 286 (Iowa 2017) (“We
have said that when a party brings a constitutional claim but fails to
identify whether the party is proceeding under the Iowa or the Federal
Constitution, claims under both the Iowa and the Federal Constitutions
are preserved.”). Moreover, the State’s opening brief on appeal treats both
federal and state constitutional grounds as having been preserved. In its
opening brief, the State discusses the right to counsel under article I,
section 10 as well as under the Sixth Amendment.
Nonetheless, Hernandez Ruiz’s answering brief refers only to the
Sixth Amendment. The two argument headings are explicit about this:
A. Relevant case law, as well as secondary sources,
demand a much less rigid interpretation of attachment of
the Sixth Amendment right to counsel.
B. Public policy favors an expansion of the Sixth
Amendment right to counsel, given the devastating
immigration consequences that counsel’s advice will have
for Hernandez Ruiz.
This raises the possibility that any article I, section 10 claim,
although preserved in the district court, has been waived on appeal. The
doctrine of waiver applies to issues not asserted on appeal whereas the
doctrine of error preservation applies to issues not asserted or decided in
the district court. See, e.g., State v. Childs, 898 N.W.2d 177, 190 & n.8
(Iowa 2017) (Hecht, J., dissenting) (“A party does not preserve error on
issues not asserted or decided in the district court but waives an argument
not asserted on appeal.”).
However, since Hernandez Ruiz is the appellee and article I, section
10 was preserved below, we have discretion to address it and will proceed
11
to do so. “We have discretion to affirm the district court on grounds raised
at trial but not on appeal.” State v. Morris, 858 N.W.2d 11, 17 (Iowa 2015);
accord King v. State, 818 N.W.2d 1, 11 (Iowa 2012). And because the State
discussed article I, section 10 in its own brief, there is no unfairness to the
State.
Article I, section 10 of the Iowa Constitution provides, “In all criminal
prosecutions, and in cases involving the life, or liberty of an individual the
accused shall have a right . . . to have the assistance of counsel.” Iowa
Const. art. I, § 10. The language of the provision indicates the person
claiming the right to counsel must be an “accused” in either a criminal
prosecution or a case involving that person’s life or liberty.
Recently, in Green, we applied article I, section 10 to hold that a
defendant did not have a right to counsel during a noncustodial,
investigative interview that occurred before the defendant had been
arrested or charges had been filed, even though a prosecutor supervised
the interview. 896 N.W.2d at 782. We noted, “There was no prosecution
or case at the time of Green’s interview.” Id. We added, “Green was not
formally or informally an ‘accused.’ ” Id. at 778.
In the present case, the right to counsel would have to arise even
earlier than in Green. Hernandez Ruiz was not yet under investigation
when he went to the Ankeny driver’s license station on March 1, 2011. He
was just trying to get a driver’s license. Only after he provided his social
security number, which differed from at least one number he had used in
the past, did an investigation ensue. The investigation then led to a
criminal charge. In light of Green and the text of article I, section 10, we
are unable to conclude that a right to counsel had attached.
C. The Immigration Proceeding. It is true that Hernandez Ruiz
had a pending federal immigration case in which Said was representing
12
him. Yet the article I, section 10 right to counsel does not apply in federal
immigration cases. “Stated simply, state constitutions do not control
federal action.” State v. Mollica, 554 A.2d 1315, 1327 (N.J. 1989); see
United States v. Bach, 310 F.3d 1063, 1066 (8th Cir. 2002) (“[F]ederal
courts in a federal prosecution do not suppress evidence that is seized by
state officers in violation of state law, so long as the search complied with
the Fourth Amendment.”); United States v. Smith, 9 F.3d 1007, 1014 (2d
Cir. 1993) (holding the validity of search in a federal prosecution depends
on whether the Federal, not State, Constitution is satisfied); State v.
Hernandez-Galarza, 864 N.W.2d 122, 135 (Iowa 2015) (noting the State of
Iowa would not have the ability to discharge an individual confined by
federal authorities under the federal immigration laws). 5
5The “cases” language of article I, section 10 was added in reaction against the
Fugitive Slave Act as amended by Congress in 1850. In re Johnson, 257 N.W.2d 47, 54
(Iowa 1977) (McCormick, J., concurring specially) (explaining why article I, section 10 did
not confer a right to jury trial in delinquency cases). The Federal Fugitive Slave Act of
1850 empowered federal commissioners to return fugitive slaves from free states to slave
states without the benefit of jury trial. Act of Sept. 18, 1850, ch. 60, § 6, 9 Stat. 462,
463–64 (repealed 1864). “No one can doubt from the convention record that the disputed
language was added to Art. I § 10 in an effort to nullify the Fugitive Slave Act by giving
persons accused as escaped slaves the right to jury trial in Iowa.” In re Johnson, 257
N.W.2d at 54.
During the debates over the Iowa Constitution, doubts were expressed about the
constitutionality of using an Iowa constitutional provision to override the Fugitive Slave
Act. See 2 The Debates of the Constitutional Convention of the State of Iowa 736–37, 740–
41 (W. Blair Lord rep. 1857), publications.iowa.gov/7313/2/The_Debates_
of_the_Constitutional_Convention_Vol%232.pdf. For example,
I would be unwilling to put into this constitution what gentlemen
have openly avowed is the meaning of this provision; and if these words
are not stricken out, this will be the condition of things: that if Congress
pass a law upon the subject of the rendition of fugitive slaves, and if that
law shall be resisted by a counter law of this State, we shall have assumed
to take that subject from the authority of the laws of the United States, to
decide upon it for ourselves. That cannot be done without bringing about
a collision between these authorities.
Id. at 741.
 13
Additionally, federal law does not recognize a Sixth Amendment
right to counsel in immigration cases. “In an immigration removal
proceeding, an alien does not have a Sixth Amendment right to counsel,
only a privilege.” United States v. Telemaque, 632 F. App’x 602, 603–04
(11th Cir. 2016) (per curiam); see Estrada-Hernandez v. Lynch, 819 F.3d
324, 327 (7th Cir. 2016) (per curiam) (stating that the Sixth Amendment
right to counsel “does not apply to removal proceedings, which are
regarded as civil in nature”); Brumant v. Holder, 594 F. App’x 273, 274 (5th
Cir. 2015) (per curiam) (“[W]e note our longstanding authority that aliens
in immigration proceedings have no Sixth Amendment right to counsel.”);
Debeatham v. Holder, 602 F.3d 481, 485 (2d Cir. 2010) (per curiam)
(“Because immigration proceedings are of a civil rather than criminal
nature, aliens in removal proceedings ‘enjoy[ ] no specific right to counsel’
under the Sixth Amendment to the Constitution.” (Alteration in original.)
(quoting Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir.
2005))); Kawas v. Att’y Gen. of U.S., 304 F. App’x 84, 88 (3d Cir. 2008) (per
curiam) (“[T]he Sixth Amendment right to counsel does not attach in
immigration proceedings.”).
D. Practical Considerations. Furthermore, the right to counsel
urged by Hernandez Ruiz presents many practical difficulties. Would the
DOT need to make attorneys available at driver’s license offices for private
consultations before people applied for licenses? Also, because of the
danger that setting off a criminal investigation could result in removal from
A supporter of the language responded to this argument in the following manner:
“[I]f the provision under consideration should come in conflict with the fugitive slave law,
I do not care.” Id. at 738.
Yet the fact that the “cases” language in article I, section 10 was originally an
effort to nullify certain federal proceedings does not mean we can use it today to dictate
the rights that would be conferred in a different kind of federal proceeding. The
Supremacy Clause applies. See U.S. Const. art. VI, cl. 2.
14
the United States, aliens would potentially have a constitutional right to
counsel in a number of circumstances when citizens would not have such
a right. Those circumstances wouldn’t be limited to driver’s licenses.
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 also should consider the remedy that Hernandez Ruiz seeks in
this case. Normally, the remedy for ineffective assistance is tailored to the
constitutional violation. See, e.g., State v. Allen, 708 N.W.2d 361, 369
(Iowa 2006) (finding that the proper remedy for ineffective assistance in
connection with a guilty plea resulting from a plea bargain is to invalidate
the entire plea bargain and allow both sides to start over); State v. Iowa
Dist. Ct., 464 N.W.2d 244, 250 (Iowa 1990) (en banc) (finding that the
appropriate remedy for ineffective assistance at trial was a new trial rather
than dismissal of the case); see also United States v. Morrison, 449 U.S.
361, 364, 101 S. Ct. 665, 667–68 (1981) (“Cases involving Sixth
Amendment deprivations are subject to the general rule that remedies
should be tailored to the injury suffered from the constitutional violation
and should not unnecessarily infringe on competing interests.”). That is,
the defendant normally gets a do-over with the ineffective assistance
removed. But here, Hernandez Ruiz would receive more—dismissal of
charges for a crime he committed. For purposes of this appeal, we
presume that effective counsel would have asked Hernandez Ruiz about
any past involvement with the DOT and, based on his responses, advised
him not to get a driver’s license. Even so, Hernandez Ruiz might have been
caught at some point for some other reason. Yet under the district court’s
15
order, he could not be prosecuted for the use of a false social security
number and would now be free to obtain a driver’s license.
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.
IV. Conclusion.
For the foregoing reasons, we reverse the order below and remand
with directions to dismiss Hernandez Ruiz’s application for postconviction
relief.
DISTRICT COURT JUDGMENT REVERSED AND CASE
REMANDED.
All justices concur except Appel, Hecht, and Wiggins, JJ., who
concur specially.
16
#16–1619, Hernandez Ruiz
APPEL, Justice (specially concurring).
I agree with the result in this case. The right to counsel did not
attach under the Sixth Amendment or the more expansive version of right
to counsel under article I, section 10 of the Iowa Constitution when
Guillermo Hernandez Ruiz’s lawyer gave him poor advice in his office. At
that point, the adversarial power of the government had not focused on
him at all. Indeed, no investigation of any kind was underway.
As indicated in my dissenting opinion in State v. Senn, I do not agree
with a bright-line rule that invariably requires that the state file a piece of
paper in a court in order for the right to counsel to attach. 882 N.W.2d 1,
56 (Iowa 2016) (Appel, J., dissenting). 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.
Wiggins and Hecht, JJ., join this special concurrence.