Napoleon Mbonyunkiza v. State of Iowa ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 18-2129
Filed August 5, 2020
NAPOLEON MBONYUNKIZA,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
Judge.
The applicant appeals the denial of his postconviction-relief application.
AFFIRMED.
Agnes G. Warutere of Warutere Law Firm, P.L.L.C., Ankeny, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., Doyle, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
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POTTERFIELD, Senior Judge.
In 2010, Napoleon Mbonyunkiza was charged with sexual abuse in the third
degree, neglect of a dependent person, and dependent adult abuse. He was
arrested but then released from custody on bond. Before the date of his scheduled
preliminary hearing, Mbonyunkiza fled to Uganda. The State later filed a trial
information charging him with the additional crime of failure to appear.
Mbonyunkiza returned to the United States in 2013, and in 2014 he pled
guilty to all four charges against him. He was sentenced to a term of
incarceration not to exceed thirty years. Mbonyunkiza filed a direct appeal, and
we affirmed his convictions and sentences in State v. Mbonyunkiza, No. 14-1283,
2016 WL 7395720, at *9 (Iowa Ct. App. Dec. 21, 2016).
In his application for postconviction relief (PCR), Mbonyunkiza alleged his
trial counsel provided ineffective assistance by failing to properly inform him of all
the adverse immigration consequences of pleading guilty.1 He also argued his trial
counsel provided ineffective assistance by failing to properly inform him of his right
to consular access prior to his guilty plea and now claims on appeal that his PCR
counsel was ineffective in not presenting evidence to establish how Mbonyunkiza
could have benefitted from such access to the Rwandan consulate.
“Generally, an appeal from a denial of an application for [PCR] is reviewed
for correction of errors at law.” Goode v. State, 920 N.W.2d 520, 523 (Iowa 2018).
However, “[w]hen the applicant’s claims are of a constitutional nature, this court
engages in a de novo review.” Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011).
1Mbonyunkiza also raised other claims on PCR, which the district court ruled upon
and denied. He does not challenge those rulings, so we do not address them.
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An applicant’s right to effective assistance from counsel in PCR proceedings is
statutory rather than constitutional, but we still apply a de novo review to a claim
of ineffective assistance regarding PCR counsel. Id.; see also Goode, 920 N.W.2d
at 523–24.
Immigration Consequences. Mbonyunkiza maintains his trial counsel
provided ineffective assistance by failing to advise him of all of the immigration
consequences associated with his guilty pleas. To establish ineffective assistance
of counsel, Mbonyunkiza has the burden to show “(1) counsel failed to perform an
essential duty, and (2) prejudice resulted therefrom.” Ledezma v. State, 626
N.W.2d 134, 141–42 (Iowa 2001). Counsel has a duty “to inform his or her client
of all the adverse immigration consequences that competent counsel would
uncover.” Diaz v. State, 896 N.W.2d 723, 732 (Iowa 2017). This includes
“potential adverse consequences from the criminal proceedings, including
removal, exclusion, bars to relief from removal, immigration detention, denial of
citizenship, and adverse consequences to the client’s immediate family.” Id. In
the context of a guilty plea, to establish the “prejudice” requirement, Mbonyunkiza
“must show that there is a reasonable probability that, but for counsel’s errors, he
would not have [pled] guilty and would have insisted on going to trial.” State v.
Straw, 709 N.W.2d 128, 136 (Iowa 2006).
Mbonyunkiza is from Rwanda and was living in the United States on refugee
status in 2010. When he fled to Uganda after being criminally charged, he did so
without the permission of the United States government. According to the
prosecutor’s statements during the plea hearing, Mbonyunkiza was only allowed
to return to the United States in 2013 on “immigration parole,” which meant he was
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only allowed to return to the United States for the purpose of resolving his criminal
case and that after his criminal case was concluded—even if he was acquitted of
all four charges—he would be removed from the country. At the plea hearing,
Mbonyunkiza asked if he would be sent to Rwanda upon the completion of his
case; he expressed concern that he would lose his United Nations refugee status
if he returned to his country of origin instead of being sent elsewhere. From the
transcript of the plea proceedings, it seems neither his trial attorney nor the
prosecutor were able to answer his question. The court gave Mbonyunkiza the
option to proceed to trial rather than enter guilty pleas, but Mbonyunkiza proceeded
to plead guilty.
At the PCR hearing, Mbonyunkiza testified he was unaware deportation was
a possibility in this case and would not have pled guilty if he knew it was. But this
testimony is belied by the record of the plea and sentencing proceedings. While it
was not his counsel who advised Mbonyunkiza regarding deportation, he was told
in no uncertain terms that he would be deported at the conclusion of his case and
the fact that he was going to be deported did not hinge on the outcome of his case.
At sentencing, Mbonyunkiza’s attorney asked the court to impose a more lenient
sentence, noting Mbonyunkiza would “never be released back into the community
in any part of the United States” as he would “finish his sentence and punishment
in the state prison and be returned to Africa.” Mbonyunkiza exhibited this same
understanding, as after the court announced it was imposing consecutive
sentences of imprisonment, he asked, “Even though I’m going to go to Africa?”
Insofar as Mbonyunkiza is challenging his trial counsel’s failure to advise
him where he will eventually be sent once he discharges his thirty-year sentence,
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there is nothing in the record before us that suggests an answer to that question
exists at this time. And we have no indication that his convictions affect that
answer. See Diaz, 896 N.W.2d at 732 (finding counsel’s performance deficient
when counsel “did not inform [the defendant] of the direct, severe, and certain
immigration consequences of pleading guilty”). Mbonyunkiza has not proved that
additional information regarding the consequences of his guilty pleas would have
stopped him from pleading guilty. This claim of ineffective assistance fails.
Consular Access. Next, Mbonyunkiza maintains his trial counsel provided
ineffective assistance in failing to advise him he had the right to consular access
and that PCR counsel was ineffective in failing to present evidence at the PCR
hearing to establish how Mbonyunkiza could have benefitted from such access.
See Ledezma, 626 N.W.2d at 152 (“We believe all criminal defense attorneys
representing foreign nationals should be aware of the right to consular access as
provided by Article 36 [of the Vienna Convention on Consular Relations], and
should advise their clients of this right); see also State v. Lopez, 633 N.W.2d 774,
783 (Iowa 2001) (assuming without deciding there is an individually enforceable
right of notification and requiring a showing of actual prejudice before affording a
remedy).
Assuming counsel had a duty to advise Mbonyunkiza of his right to access
the Rwanda consulate and failed to do so, Mbonyunkiza must still establish
prejudice. In Lopez, the defendant, who was a Mexican national, filed a motion in
arrest of judgment arguing his rights had been violated when the police did not
provide him an opportunity to contact the Mexican consulate. 633 N.W.2d at 778.
The district court denied his motion, and Lopez filed a direct appeal of that denial.
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Id. On direct appeal and with error preserved, our supreme court determined that
to establish prejudice, “the defendant has the burden of establishing that ‘(1) he
did not know of his right; (2) he would have availed himself of the right had he
known it; and (3) “there is a likelihood that the contact [with the consulate] would
have resulted in assistance to him.”’” Id. at 783 (citations omitted). Mbonyunkiza
must establish at least this in order to establish Strickland prejudice, as is required
to succeed on his claim of ineffective assistance. But Mbonyunkiza has not shown
how the Rwanda consulate would have assisted him. See Garcia v. State, No. 05-
1013, 2009 WL 1066520, at *8 (Iowa Ct. App. Apr. 22, 2009) (finding the applicant
failed to prove prejudice regarding his consular-access claim, where the applicant
presented deposition testimony from an official from the Mexican Consulate but
that deposition did not support the applicant’s claims of what the consulate would
have done for him that would have prevented him from pleading guilty); see also
Ortiz v. State, No. 13-1290, 2015 WL 3613262, at *3 (Iowa Ct. App. June 10, 2015)
(concluding applicant failed to prove prejudice on his consular-access claim when
he “did not offer any evidence as to what advice or information the Consulate could
have provided him in advance of his guilty plea that would have caused him to
insist on proceeding to trial rather than pleading guilty”). And his claim that PCR
counsel was ineffective for failing to introduce such evidence does not correct the
issue. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (“When complaining
about the adequacy of an attorney’s representation, it is not enough to simply claim
that counsel should have done a better job.”). This claim of ineffective assistance
fails.
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Because Mbonyunkiza has not proved his claims of ineffective assistance
by his trial and PCR counsel, we affirm.
AFFIRMED.