                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0946
                               Filed June 15, 2016


JASON WAYNE FRANSENE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Marlita A. Greve,

Judge.



      Jason Fransene appeals from the denial of his application for

postconviction relief. AFFIRMED.




      Thomas J. O’Flaherty of O’Flaherty Law Firm, Bettendorf, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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DANILSON, Chief Judge.

      Jason Fransene appeals from the denial of his application for

postconviction relief (PCR). He contends plea counsel was ineffective in failing

to inform him how his plea and sentence would be applied by the board of parole

and affect his discharge date. We affirm.

      Denial of a PCR application is generally reviewed for corrections of errors

at law. Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012). However, when a

claim presents a constitutional issue, such as ineffective assistance of counsel,

our review is de novo. State v. Ragland, 812 N.W.2d 654, 657 (Iowa 2012).

      “The general test applied to a claim of ineffective assistance of counsel is

whether under the entire record and totality of the circumstances counsel's

performance was within the range of normal competency.” State v. Carney, 584

N.W.2d 907, 910 (Iowa 1998) (citations omitted). In order to prevail on his claim

of ineffective assistance of counsel, Fransene must show, by a preponderance of

evidence, that his plea counsel both (1) breached an essential duty and (2)

caused him prejudice by that breach. See State v. Clay, 824 N.W.2d 488, 495

(Iowa 2012).

      In October 2012, Fransene was already on parole and under the

supervision of the department of correctional services. On October 22, he was

arrested for forgery and second-degree theft. He was released on bond that

same date.

      On October 26, 2012, Fransene was arrested and charged with violating

his parole by passing checks using someone else’s name on twenty-two

occasions in September 2012. He was held without bond.
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       In November 2012, Fransene was charged with forgery and second-

degree theft, and the State gave notice of its intent to seek the habitual offender

enhancement.

       In March 2013, Fransene pled guilty to second-degree theft as an habitual

offender. Pursuant to the plea agreement, the State would dismiss the forgery

charge and recommend incarceration for a term of fifteen years. The agreement

also provided, “State recommends this sentence to run concurrent to parole

violation.”   The district court accepted the plea agreement and sentenced

Fransene to a fifteen-year indeterminate term, to run concurrently with any

sentences then pending subject to parole or probation requirements.

       In April 2013, an administrative parole judge found Fransene had violated

his parole by being convicted and sentenced while on parole. The order stated

Fransene’s parole was revoked as of the date of the offense, September 1, 2012.

       In May 2013, Fransene filed a PCR application, which was tried on April

17, 2015. In its May 25, 2015 ruling, the district court characterized Fransene’s

ineffective-assistance-of-counsel claim thus, “Fransene argues [plea attorney]

Sothmann should have told him his plea of guilty would somehow affect his

discharge date from parole” and he argues he “may not have pled guilty if he

would have known it would have affected his discharge date.”

       At the PCR hearing, Sothmann acknowledged Fransene had concerns

how the plea would affect his parole status. Sothmann stated he talked with

other experienced criminal defense attorneys and talked with a long-time

parole/probation officer from the Seventh Judicial District, Kim Crandall. No one

had a definite answer because the decision was ultimately the board of parole’s
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decision.   At no time did Sothmann make any promises or predictions to

Fransene regarding what would happen with his parole violation or discharge

date.

        The PCR court found Sothmann did not breach an essential duty. The

court wrote, “No one had a specific answer because that issue is left entirely to

the board of parole. Even if Sothmann had received a definitive answer, the

board of parole would not have had to follow it.” We agree.

        Counsel investigated and informed Fransene that the matter was up to the

parole board. See Carney, 584 N.W.2d at 910 (“‘When the ineffectiveness claim

is based on alleged failure to advise a defendant of the consequences of a guilty

plea, the rule is that, if the consequences flow “directly” from the plea, the plea

may be held invalid.’”     “On the other hand, if ‘the fallout from the plea is

“collateral,” counsel is generally not held to be ineffective for failing to inform the

defendant about it.’” (citations omitted)); Mott v. State, 407 N.W.2d 581, 583

(Iowa 1987) (“The distinction between ‘direct’ and ‘collateral’ consequences of a

plea, while sometimes shaded in the relevant decisions, turns on whether the

result represents a definite, immediate and largely automatic effect on the range

of the defendant’s punishment.” (citation omitted)), abrogated on other grounds

by Perez v. State, 816 N.W.2d 354, 360 (Iowa 2012). But cf. State v. Fisher, 877

N.W.2d 676, 683-84 (Iowa 2016) (finding a plea was involuntary when the

defendant was not informed that revocation of a driver’s license was a mandatory

consequence of a drug-possession conviction).           Moreover, counsel did not

misinform Fransene of a collateral consequence, a later parole date. See State

v. Ramirez, 636 N.W.2d 740, 742-43 (Iowa 2001) (citing Charles Alan
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Wright, Federal Practice and Procedure § 173, at 191-94 (1999), which lists a

later parole date as a collateral consequence), abrogated on other grounds by

Chaidez v. United States, 133 S. Ct. 1103, 1110 (2013).        Rather, Fransene

proceeded with his plea knowing that neither the court nor his attorney were able

to provide the information he sought concerning the collateral consequence.

       In any event, the court concluded Fransene could not prove prejudice

because

       the plea agreement called for any sentences to run concurrent to
       any parole violation, which was all Sothmann could ever have
       obtained on Fransene’s behalf.        The sentencing order was
       corrected to properly reflect this court’s recommendation of
       concurrent sentencing to the parole violation. Whether the board of
       parole honored that recommendation is not something this court
       could order, nor could Sothmann do any more to require it.

The court also observed Fransene did not wish to have his plea withdrawn, only

that the habitual offender enhancement be removed.

       Upon our de novo review, we find no reason to disturb the denial of the

PCR application.     The district court’s findings are supported by the record.

Fransene has failed to carry his burden of proof on either element of an

ineffectiveness claim. Fransene was not given erroneous advice or misled about

the effect of his plea on his parole discharge date.    Cf. Meier v. State, 337

N.W.2d 204, 206-07 (Iowa 1983) (discussing the prejudice resulting from

“counsel’s legal misadvice resulting from his unfamiliarity with and failure to

research applicable statutory provisions that in various plea alternatives would

determine the length of his client’s incarceration”).

       Fransene also did not prove the requisite prejudice.     See Fisher, 877

N.W.2d at 682 n.3 (noting that “under the rubric of ineffective assistance of
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counsel,” a defendant must demonstrate “a reasonable probability that, but for

counsel’s errors, he [or she] would not have pleaded guilty and would have

insisted on going to trial” (citation omitted)).

          Fransene has failed to prove his ineffectiveness claim, and we therefore

affirm.

          AFFIRMED.
