                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0890
                             Filed October 11, 2017


JOSHUA JAY BARR,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Allamakee County, Linda M.

Fangman, Judge.



      The applicant appeals from the denial of his application for postconviction

relief. AFFIRMED.



      John J. Bishop, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee State.




      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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POTTERFIELD, Judge.

       Joshua Barr appeals from the denial of his application for postconviction

relief (PCR). Barr makes the same argument here that he did before the PCR

court—that trial counsel provided ineffective assistance when he misled Barr

about the sentence Barr would receive by focusing on the best-case scenario

and failing to discuss the possibility of civil commitment for his sex crimes. Barr

maintains he would not have pled guilty if he had been accurately and

appropriately advised.

       We review ineffective-assistance-of-counsel claims de novo.           State v.

Thorndike, 860 N.W.2d 316, 319 (Iowa 2015). “To prove ineffective assistance,

the [applicant] must demonstrate by a preponderance of the evidence that ‘(1) his

trial counsel failed to perform an essential duty, and (2) this failure resulted in

prejudice.’” State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010) (citation omitted).

Barr’s claim fails if either element is lacking. See State v. Straw, 709 N.W.2d

128, 133 (Iowa 2006). While our review is de novo, we give weight to the trial

court’s findings on the credibility of witnesses. Taylor v. State, 352 N.W.2d 683,

687 (Iowa 1987).

       Barr’s claim that counsel breached a duty is really two claims—(1) counsel

wrongly informed him he would only serve eighteen months and (2) counsel

failed to inform him he could be civilly committed for his sex crimes.

       We take up Barr’s second claim first. Counsel had no duty to inform Barr

he could be civilly committed for the crimes to which he was pleading guilty.1


1
 Barr pled guilty to two counts of sexual abuse in the third degree, pursuant to Iowa
Code section 709.4(1) (2009) (performing a sex act by force or against the will of the
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See State v. Carter, No. 12-1938, 2013 WL 4769414, at *2 (Iowa Ct. App. Sept.

5, 2013) (“The possibility of [the defendant’s] civil commitment as a sexually

violent predator at the conclusion of his . . . sentence is not a definite, immediate,

or automatic result of his conviction.         It is merely a potential collateral

consequence; therefore, under the collateral consequences rule, his trial counsel

was not ineffective by failing to inform him about it.”); Blaise v. State, No. 10-

0466, 2011 WL 2078091, at *4 (Iowa Ct. App. May 25, 2011) (no duty to inform a

defendant about the possibility of civil commitment before he pleaded guilty to

harassment in the first degree). Because counsel had no duty to inform Barr that

he may face civil commitment, this claim of ineffective assistance fails.        See

State v. Schaer, 757 N.W.2d 630, 637 (Iowa 2008) (“Counsel has no duty to

raise an issue that has no merit.” (citation omitted)).

       Next, we consider Barr’s argument he would not have pled guilty to the

three charges if counsel had not misinformed him that he would serve only

eighteen months. At the PCR hearing, Barr, Barr’s mother, and Barr’s sister

each testified they were present with Barr’s attorney before the plea proceedings

and they heard the attorney tell Barr that if he took the plea, he would be out in

eighteen months with good behavior. The attorney then testified on his own

behalf, denying he ever told Barr he would be released in eighteen months.

Rather, counsel testified he remembered telling Barr that his discharge date on a

ten-year sentence, with credit for good behavior, “amounts to about four years

and maybe four months, something like that.” He also remembered “telling him



other person). He also pled guilty to one count of indecent contact with a child. The
three counts involved three separate victims.
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that life in prison was a long time, and it means no parole. Your ten-year prison

sentences meant that theoretically that you would get out at some point in time.”

The attorney agreed he had encouraged Barr to take the plea deal, noting that as

part of the agreement, the State was dismissing a first-degree kidnapping

charge, which carried a mandatory life sentence. The attorney advised Barr to

take the deal after doing discovery and independent investigation that led him to

believe Barr was likely to be convicted of at least one of the charges of sexual

abuse in the third degree, which alone carried a ten-year sentence. During his

testimony, the attorney categorically denied ever assuring a defendant about

when they will be released.

       In denying Barr’s claim for ineffective assistance, the PCR court “found

[the trial attorney] very credible.” Additionally, the court “[did] not find credible

that [the trial attorney] promised Mr. Barr that he would be released from prison

within eighteen months. The court [did] not find that to be supported by the

record in this case.” The court also noted:

       During cross-examination, Mr. Barr stated he repeatedly lied to the
       court at his plea proceedings because he was only saying what his
       attorney wanted him to say. Mr. Barr stated he was willing to lie to
       the court. The court is very troubled by the cavalier way Mr. Barr
       states his willingness to lie to the court to get what he wants.

       Here, the issue comes down to which witness’s version of events is more

credible. In no uncertain terms, the PCR court repeatedly emphasized that it

found the attorney to be credible and Barr to lack credibility. Nothing in the

record suggests we should distrust or disturb the PCR court’s findings.

       Because we accept the testimony of the trial attorney that he never told

Barr he would be released from prison in eighteen months, there was no breach
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of an essential duty.   Barr has not established that he received ineffective

assistance from counsel, and we affirm.

      AFFIRMED.
