Icanovic v. State

• Citation: 363 P.3d 365,159 Idaho 524
• Decision Date: 23 December 2015
• Docket Number: No. 38477.,38477.
• Court: Idaho Supreme Court
• Parties: Hasan ICANOVIC, Petitioner–Appellant, v. STATE of Idaho, Respondent.

159 Idaho 524

363 P.3d 365

Hasan ICANOVIC, Petitioner–Appellant,

v.STATE of Idaho, Respondent.

No. 38477.

Supreme Court of Idaho.

Dec. 23, 2015.

Sara B. Thomas, State Appellate Public Defender, Boise, attorney for appellant. Justin M. Curtis argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for respondent. Kenneth K. Jorgensen argued.

W. JONES, Justice.

I. NATURE OF THE CASE

Hasan Icanovic (Icanovic) appeals the district court's dismissal of his petition for post-conviction relief brought on the ground that he received ineffective assistance of counsel. Icanovic argues that his attorney's advice offered in connection with his consideration and acceptance of a plea bargain was deficient and that but for this advice he would not have pled guilty to felony domestic battery. At issue is his attorney's advice regarding the immigration-related consequences of his guilty plea. The State of Idaho (State) argues the court properly found neither deficient performance by counsel nor prejudice to Icanovic. Icanovic appeals, requesting that his guilty plea and conviction be vacated and the case remanded. We affirm the dismissal of Icanovic's petition for post-conviction relief.

II. FACTUAL AND PROCEDURAL BACKGROUND

This appeal for post-conviction relief comes before this Court for a second time after being previously remanded for an evidentiary hearing.

1. The Guilty Plea

Icanovic is a Bosnian citizen who formerly resided in Idaho. In May 2009, Icanovic was charged with felony attempted strangulation and misdemeanor domestic violence. Icanovic was represented on the charges by attorney Jared Martens (Martens). Icanovic alleged that, during his consideration of a plea deal offered by the State, Martens advised him that he would neither be deported to Bosnia nor barred from applying for United States citizenship if he entered into the plea bargain. In June 2009, pursuant to a negotiated plea agreement, Icanovic pled guilty to one count of felony domestic battery. The district court accepted this plea following an examination of Icanovic under oath and after a waiver of his applicable rights. The district court advised Icanovic that his plea "may result in deportation, the inability to obtain legal status, or denial of an application for United States citizenship." In September 2009, the district court sentenced Icanovic to eight years of incarceration with the first three years fixed; the court retained jurisdiction.

On September 14, 2009, the U.S. Bureau of Homeland Security, Department of Immigration and Customs (ICE) provided Icanovic and the district court with a notice of detainer. On February 18, 2010, the court suspended Icanovic's sentence and placed him on probation for ten years. One day later, Icanovic was served with an ICE detainer, and shortly thereafter he was taken into custody pending deportation. Icanovic never directly appealed his judgment of conviction.

2. The Padilla Decision

On March 31, 2010—forty-one days after the district court placed Icanovic on probation—the United States Supreme Court issued its opinion in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). This decision addresses the issues raised in Icanovic's petition for post-conviction relief. In Padilla, a native Honduran who was a lawful permanent resident in the United States pled guilty to transporting a large quantity of marijuana. Id. at 359, 130 S.Ct. at 1477, 176 L.Ed.2d at 289–90. Padilla's attorney allegedly advised him not to worry about the immigration consequences of his plea because he had resided in the United States for a long period of time. Id. However, following his plea, Padilla faced deportation. Id. The United States Supreme Court reversed the denial of Padilla's petition for post-conviction relief, holding that where the immigration consequences of a conviction are easily determinable by reading the relevant statute, defense counsel have a duty to correctly advise a client of these consequences. Id. at 368, 130 S.Ct. at 1483, 176 L.Ed.2d at 295. Prior to the Padilla decision, Idaho followed the same approach as Kentucky. See Ray v. State, 133 Idaho 96, 102, 982 P.2d 931, 937 (1999) ("The Sixth Amendment contains no implied duty for an attorney to inform his client of collateral consequences of a guilty plea."); see also Retamoza v. State, 125 Idaho 792, 797, 874 P.2d 603, 608 (Ct.App.1994) (immigration consequences are collateral and therefore irrelevant to effectiveness of counsel).

3. The Post–Conviction Proceedings

In the wake of the Padilla decision, on October 9, 2010, Icanovic filed a petition for post-conviction relief (Petition) supported by his affidavit. In his Petition to the district court, Icanovic alleged that Martens's assistance was ineffective in two ways: (1) in response to a specific question, Martens told Icanovic that he would not be deported if he pled guilty; and (2) in response to a specific question, Martens told Icanovic that he would not lose his ability to apply for United States citizenship if he pled guilty. Given these alleged errors, Icanovic sought to have his guilty plea and judgment of conviction vacated. Shortly after the Petition was filed, the court issued a Notice of Intent to Summarily Dismiss Petition for Post–Conviction Relief. The court reasoned that, even if the allegations were true and Martens's performance was constitutionally deficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Padilla, this deficiency was cured by the district court informing Icanovic during the plea colloquy that he may be deported or denied United States citizenship. The court found that this advisement prevented Icanovic from establishing the prejudice prong of the Strickland standard.

However, in January 2011, the district court held a hearing on the issue. There, Martens testified that he did not affirmatively advise Icanovic as to whether there would or would not be immigration consequences to his plea. Instead, Martens testified that he advised Icanovic there could be consequences, but that he did not know whether the federal government would deport him. According to Martens, he told Icanovic, "They might. They might not." The district court found this testimony credible and that the advice offered was not deficient. The court further found that its advisement to Icanovic during his plea allocution cured any ineffectiveness in Martens's representation. Thereafter, the court issued a final order dismissing Icanovic's petition. Icanovic timely appealed to this Court.

4. First Appeal to this Court

In his first appeal to this Court, Icanovic argued that Martens's advice was constitutionally deficient under Padilla and that this deficiency was not cured by the district court's advisement. Specifically, he asserted that he adequately demonstrated both deficient performance and prejudice and that the district court erred in denying his Petition. In its brief, the State argued that Padilla does not control this case because it should not be applied retroactively. However, the State contemplated that, if Padilla does in fact apply, Icanovic's counsel may have rendered ineffective assistance by failing to adequately advise him of the immigration consequences of his plea. Icanovic replied that his conviction was not final on the date Padilla was issued, and therefore Padilla controlled. In the alternative, Icanovic argued for Padilla to apply retroactively.

The issue of Padilla's application, however, was not squarely decided by this Court. Instead, at oral argument before the Court, the State acknowledged that its position regarding the application of Padilla was in error and it considered that Padilla did apply to Icanovic's judgment of conviction. This consideration was reduced to writing, and on December 7, 2012, the State filed an Uncontested Motion for Remand and Statement in Support Thereof.

This Court granted the State's Uncontested Motion for Remand, ordering that the matter be remanded to district court for an evidentiary hearing so that Icanovic can "attempt to prove his claim of ineffective assistance of counsel for failing to adequately explain the immigration consequences of his guilty plea."

5. Remand

On remand, the parties briefed the issue of Icanovic's ineffective assistance of counsel claim and the district court held a hearing on June 21, 2013. At the hearing, Icanovic testified that he was on parole and subject to an immigration hold. Icanovic had allegedly been informed that federal authorities were actively seeking to deport him. Icanovic testified that the only reason he had not been deported as of the date of the hearing was confusion regarding his place of birth and the fact that neither Croatia nor Bosnia were prepared to accept him. Next, the State called ICE supervisory detention deportation officer Brandon Jones (Jones) as a witness. Jones testified generally to the federal government's immigration and deportation procedures and also specifically stated that if an alien like Icanovic was given advice that a conviction for an aggravated felony might or might not result in their actual deportation such advice would be accurate. These were the only two witnesses called at the evidentiary hearing. The district court heard argument following this testimony and ultimately took under advisement the issues of whether Martens provided Icanovic with constitutionally ineffective assistance and whether Icanovic suffered prejudice as a result.

On August 5, 2013, the district court issued a written order addressing Icanovic's ineffective assistance of counsel claim. In its order, the district court made certain pertinent findings of fact and conclusions of law. First, and in reconciling the inconsistencies between the testimony of Icanovic and Martens, the district court found Martens to be more credible. It stated: "[S]pecifically, this [c]ourt finds that Mr. Martens did in fact advise Mr. Icanovic that if he...