                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-2032
                               Filed December 20, 2017


ANTONIO MONTE GIAMBO II,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, James S.

Heckerman, Judge.



      An applicant appeals the denial of postconviction relief. AFFIRMED.




      Krisanne C. Weimer of Weimer Law, P.C., Council Bluffs, for appellant.

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

General, for appellee State.




      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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TABOR, Judge.

       With the jury waiting, Antonio Giambo II entered a plea agreement with the

State that reduced his charge from third-degree sexual abuse, a class “D” felony,

to assault with intent to commit sexual abuse, an aggravated misdemeanor.

Following his guilty plea and sentencing, he unsuccessfully applied for

postconviction relief (PCR) as a self-represented litigant.

       Giambo now appeals the PCR court’s denial of relief, claiming trial counsel

had a conflict of interest and used threats to coerce his plea. Giambo additionally

alleges his plea was coerced based on “a conflict of interest with anyone from the

State Public Defender’s office representing him at his January 2014 [criminal] trial

because they were concurrently representing the alleged victim in other, unrelated

cases.” After reviewing the record, we affirm the PCR court’s thorough and well-

reasoned decision rejecting these claims. See Iowa Ct. R. 21.26(1)(a), (d), (e).

       In a second issue, Giambo asserts his PCR counsel rendered ineffective

assistance in multiple ways. Such claims are an exception to the rules of error

preservation. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). Our review

is de novo. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). “We must

now decide whether these claims present grounds which may be addressed in this

appeal or preserved for further postconviction proceedings.” Dunbar, 515 N.W.2d

at 15. Ordinarily, we preserve such claims to allow development of the facts

surrounding counsel’s conduct. See State v. Rawlings, 402 N.W.2d 406, 408

(Iowa 1987).    But we may address claims where the record is sufficiently

developed to resolve them. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010).

Here, the record is adequate to resolve all but one of these claims.
                                           3


       To succeed, Giambo must establish (1) his PCR counsel failed to perform

an essential duty and (2) that failure resulted in prejudice. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). “Reversal is warranted only where a

claimant makes a showing of both elements.” Dempsey, 860 N.W.2d at 868. If a

claimant fails to establish one element, we need not address the other. Id.

       Giambo first faults PCR counsel for not amending the self-represented

application that failed to include a prayer for relief. We conclude Giambo was not

prejudiced by counsel’s omission because, after his PCR counsel filed a brief

addressing Giambo’s claims with a specific prayer for relief, the court considered

and resolved the matters.

       Giambo also contends PCR counsel failed to adequately investigate

whether plea counsel had a conflict of interest. Because we agree with the PCR

court’s conclusion that this claim was meritless, PCR counsel did not breach a duty

by curtailing further inquiry after she provided Giambo with transcripts refuting his

conflict-of-interest claim. State v. Hoskins, 711 N.W.2d 720, 731 (Iowa 2006)

(ruling counsel is not ineffective for failing to raise meritless issues).

       Giambo next asserts PCR counsel failed to identify and present evidence

on the issue of Giambo’s reasonable ability to reimburse court-appointed trial

attorney fees. Because such fee issues do not provide grounds for relief, this claim

is also meritless. See Iowa Code § 822.2(1)(g) (2015).

       Giambo next complains PCR counsel failed to challenge his trial counsel’s

ineffectiveness in allowing Giambo to enter a guilty plea without a factual basis.

Determining a factual basis is a prerequisite for accepting a guilty plea. Iowa R.

Crim. P. 2.8(2)(b). Where there is no factual basis and trial counsel allows a
                                         4

defendant to plead guilty, trial counsel breaches an essential duty.        State v.

Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).            In such circumstances, we

presume prejudice. Id. In deciding if a factual basis existed for Giambo’s plea, we

examine the record before the plea court, including the minutes of testimony, for

sufficient proof supporting the conclusion Giambo assaulted the victim with intent

to commit sexual abuse. See Iowa Code § 709.11 (2015); State v. Keene, 630

N.W.2d 579, 581 (Iowa 2001). The record need not contain “the totality of evidence

necessary to support a guilty conviction, but only . . . demonstrated the facts to

support the elements of the offense.” Rhodes v. State, 848 N.W.2d 22, 29 (Iowa

2014) (citation omitted).

       At the plea hearing, Giambo acknowledged the witnesses would testify

consistently with the minutes of evidence. The minutes show the complaining

witness would testify Giambo forced her into the bathroom of a vacant apartment,

threatened her with a knife, and told her to “suck [him] off.” He grabbed her and

tried to kiss her. When Giambo pressed his penis against the corner of her mouth

and cheek, she tried to bite it. She started to yell for help, but Giambo covered her

mouth with his hand and demanded she undress for vaginal sex. He paused when

he heard voices outside of the bathroom and threatened to kill her with his knife.

Giambo then sexually assaulted her as she wept. After the assault, she called 911

and identified Giambo in a photographic line-up while she was at the hospital.

Giambo’s PCR counsel had no duty to raise this meritless issue—the minutes

provided a factual basis for his plea.

       Finally, Giambo asserts PCR counsel was ineffective in not challenging the

plea court’s failure to advise him of “the criminal penalty surcharge imposed by
                                         5


Iowa Code section 911.1 or the sexual abuse victim surcharge imposed by Iowa

Code section 911.2B.” The State replies “there is no likelihood that Giambo would

not have pleaded guilty but for being informed regarding a 35% surcharge of $218.”

      A defendant pleading guilty has a right to be informed of surcharges levied

on fines. State v. Fisher, 877 N.W.2d 676, 678 (Iowa 2016). The “circumstances

underlying . . . [Giambo’s] willingness to go to trial are facts that should be

permitted to be more fully developed.” See State v. Gaston, No. 16-1957, 2017

WL 4317310, at *2 (Iowa Ct. App. Sept. 27, 2017) (quoting State v. Delacy, No.

16-0827, 2017 WL 1735684, at *4 (Iowa Ct. App. May 3, 2017)); accord State v.

Iddings, No. 15-1597, 2017 WL 2464049, at *5 (Iowa Ct. App. June 7, 2017); State

v. Bascom, No. 15-2173, 2017 WL 1733115, at *1 (Iowa Ct. App. May 3,

2017); State v. Taylor, No. 16-0762, 2017 WL 1735682, at *1–2 (Iowa Ct. App.

May 3, 2017).     Accordingly, we preserve this claim for the possibility of an

additional postconviction proceeding. See Fetters v. State, No. 03-1088, 2004 WL

793729, at *3 (Iowa Ct. App. Apr. 14, 2004) (finding record inadequate and

preserving claims of ineffective assistance of PCR trial counsel).

      AFFIRMED.

      Danilson, C.J., concurs; McDonald, J., partially dissents.
                                          6


MCDONALD, Judge (dissenting in part).

       I concur in the majority’s resolution of Giambo’s claims except Giambo’s

claim of ineffective assistance of postconviction counsel in failing to challenge the

adequacy of the plea colloquy as it related to the provision of information regarding

applicable surcharges. I would deny that claim on the merits. I thus concur in part

and dissent in part.

       Iowa Code chapter 822 (2105) creates a statutory procedure for “[a]ny

person who has been convicted of, or sentenced for, a public offense” to seek

postconviction relief. Iowa Code § 822.2. “[P]ostconviction relief proceedings are

not criminal proceedings, but rather are civil in nature and are triable at law to the

court.” Jones v. State, 479 N.W.2d 265, 269 (Iowa 1991) (emphasis in original

omitted).   As with any civil proceeding, postconviction-relief proceedings are

subject to rules regarding the timely and prompt presentation of claims. For

example, the statute provides for a three-year statute of limitations. See Iowa

Code § 822.3. By way of another example, the statute contains a claim-preclusion

provision. Specifically, Iowa Code section 822.8 provides:

              All grounds for relief available to an applicant under this
       chapter must be raised in the applicant’s original, supplemental or
       amended application. Any ground finally adjudicated or not raised,
       or knowingly, voluntarily, and intelligently waived in the proceeding
       that resulted in the conviction or sentence, or in any other proceeding
       the applicant has taken to secure relief, may not be the basis for a
       subsequent application, unless the court finds a ground for relief
       asserted which for sufficient reason was not asserted or was
       inadequately raised in the original, supplemental, or amended
       application.

Cf. Pavone v. Kirke, 807 N.W.2d 828, 835 (Iowa 2011) (stating the doctrine of claim

preclusion holds “a valid and final judgment on a claim bars a second action on the
                                           7


adjudicated claim or any part thereof” and “claim preclusion will apply not only to

matters actually determined in an earlier action but to all relevant matters that could

have been determined”).

       With respect to the claim preclusion provision, the supreme court had

interpreted this provision “to require a postconviction-relief applicant to raise any

ineffective-assistance claims on direct appeal or ‘show sufficient reasons why any

ground for relief asserted in a postconviction relief petition was not previously

asserted on direct appeal.’” State v. Johnson, 784 N.W.2d 192, 196 (Iowa 2010)

(citation omitted). If the postconviction-applicant failed “to prove a sufficient reason

for failing to raise a claim on direct appeal, he [was] precluded from asserting the

claim in a postconviction proceeding.” Id. Not only did the supreme court require

an applicant to present a claim of ineffective assistance of counsel on direct

appeal, it required the defendant to make a showing “supporting the legitimacy of

the claim.” Id. Specifically:

       To preserve claims of ineffective assistance of counsel for
       postconviction review, a defendant must make some minimal
       showing from which this court can assess the potential viability of his
       or her claim. Such a showing should not only demonstrate some
       need for further development of the record, but should indicate why
       the challenged actions are believed to have been ineffective and
       what prejudice is likely to have resulted from them. The bald
       assertion that certain acts constitute ineffective assistance of
       counsel will be insufficient to preserve the question for postconviction
       proceedings.

Id.

       In 2004, the legislature abrogated the caselaw that required a defendant to

raise a claim of ineffective assistance of counsel on direct appeal to preserve the

claim for postconviction-relief proceedings. The new provision provided:
                                           8


              1. An ineffective assistance of counsel claim in a criminal case
       shall be determined by filing an application for postconviction relief
       pursuant to chapter 822, except as otherwise provided in this section.
       The claim need not be raised on direct appeal from the criminal
       proceedings in order to preserve the claim for postconviction relief
       purposes.
              2. A party may, but is not required to, raise an ineffective
       assistance claim on direct appeal from the criminal proceedings if the
       party has reasonable grounds to believe that the record is adequate
       to address the claim on direct appeal.
              3. If an ineffective assistance of counsel claim is raised on
       direct appeal from the criminal proceedings, the court may decide
       the record is adequate to decide the claim or may choose to preserve
       the claim for determination under chapter 822.

Iowa Code § 814.7. In Johnson, the supreme court recognized this provision

abrogated “the preservation requirement as it applied to direct appeals.” Johnson,

784 N.W.2d at 197. The Johnson court also recognized the statutory change

eliminated the requirement that the defendant on direct appeal “make any

particular record in order to preserve the claim for postconviction relief.” Id. at 198.

In making this latter determination, the supreme court overruled cases to the

contrary. See id.

       In this case, Giambo raises a claim of ineffective assistance of

postconviction counsel.     There is no constitutional right to postconviction relief,

postconviction counsel, or the effective assistance of postconviction counsel. See

Williams v. Pennsylvania, 136 S. Ct. 1899, 1921 (2016) (Thomas, J., dissenting);

Montgomery v. Louisiana, 136 S. Ct. 718, 746 (2016) (Thomas, J., dissenting)

(“Because the Constitution does not require postconviction remedies, it certainly

does not require postconviction courts to revisit every potential type of error.”);

Coleman v. Thompson, 501 U.S. 722, 752 (1991) (“There is no constitutional right

to an attorney in state post-conviction proceedings. Consequently, a petitioner
                                             9


cannot claim constitutionally ineffective assistance of counsel in such

proceedings.”); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We have never

held that prisoners have a constitutional right to counsel when mounting collateral

attacks upon their convictions, and we decline to so hold today.               Our cases

establish that the right to appointed counsel extends to the first appeal of right, and

no further.”). However, the supreme court has recognized a statutory right to

counsel in chapter 822 proceedings and a corresponding statutory right to the

effective assistance of postconviction counsel. See Dunbar v. State, 515 N.W.2d

12, 15 (Iowa 1994).

       With respect to a claim of ineffective assistance of postconviction counsel

raised on appeal from an adverse judgment in a postconviction-relief proceeding,

to the extent such a claim can be “preserved” for subsequent rounds of

postconviction-relief proceedings,1 the applicant is still required to make a

particularized showing of a viable claim. This requirement was set forth in Dunbar.


1
  There is no statutory authority to preserve a claim of ineffective assistance of
postconviction counsel. See Moody v. State, No. 16-1465, 2017 WL 4843182, at *4 (Iowa
Ct. App. Oct. 25, 2017) (McDonald, J., concurring specially); Moore v. State, No. 15-1779,
2017 WL 2461427, at *13 (Iowa Ct. App. June 7, 2017) (“Because a postconviction-relief
proceeding is a civil proceeding rather than a ‘criminal proceeding,’ section 814.7(3) is
inapplicable here. We thus have no authority to ‘preserve’ a claim of ineffective assistance
of postconviction counsel. [The applicant] may file another application for postconviction
relief and assert this or any other claim. The timeliness and propriety of any such
application, claim, or claims would be governed by chapter 822.”); Cole v. State, No. 15-
0344, 2016 WL 7395722, at *2 (Iowa Ct. App. Dec. 21, 2016) (declining to “preserve” claim
of ineffective assistance of postconviction counsel on the ground there is statutory
authority to do so). The lack of statutory authority to “preserve” such a claim does not
necessarily mean the applicant would be precluded from presenting such a claim in a
second or subsequent application for postconviction relief. The ineffective assistance of
postconviction counsel might constitute “sufficient cause” within the meaning of section
822.8 to excuse the failure to present the claim in an earlier proceeding. See Dunbar, 515
N.W.2d at 14.
                                         10

See id. (declining to preserve claim where the allegations were “too general” and

where the applicant failed to articulate particular prejudice). Section 814.7 did not

abrogate the Dunbar requirement with respect to appeals from postconviction-

relief proceedings because section 814.7 related only to claims on “direct appeal

from the criminal proceedings.”     Nor did Johnson overrule or otherwise limit

Dunbar. See Johnson, 784 N.W.2d at 197 (noting Dunbar applied a “similar

specificity requirement” to preserve a claim of ineffective assistance of

postconviction counsel). To the contrary, the Johnson court very specifically held

section 814.7 eliminated only the requirement for a heightened showing in the

context of a direct appeal:

       Upon our examination of this issue, we overrule our holding . . . that
       a defendant is required to demonstrate the potential viability of any
       ineffective-assistance claim raised on direct appeal in order to
       preserve the claim for postconviction relief. We think it would be
       inconsistent with the rule that a defendant is not required to raise
       ineffective-assistance claims on direct appeal in order to preserve
       such claims for postconviction relief, yet hold that such claims cannot
       be preserved when they are raised in a general or conclusory
       manner on direct appeal. Moreover, section 814.7(3) clearly gives
       the appellate court only two choices when an ineffective-assistance
       claim is raised on direct appeal: (1) “decide the record is adequate
       to decide the claim,” or (2) “choose to preserve the claim for
       determination under chapter 822.” Iowa Code § 814.7(3). Based on
       the provisions of section 814.7, we hold defendants are no longer
       required to raise ineffective-assistance claims on direct appeal, and
       when they choose to do so, they are not required to make any
       particular record in order to preserve the claim for postconviction
       relief.

Id. at 198 (emphases added). The preservation of this heightened requirement

with respect to claims of ineffective assistance of postconviction counsel advances

a legitimate interest in the finality of criminal convictions. Otherwise, it’s just
                                           11

ineffective-assistance turtles all the way down. See Rapanos v. United States, 547

U.S. 715, 754 n.14 (2006).

       Applying the controlling standard to the case at hand, I would not preserve

Giambo’s claim of ineffective assistance of postconviction counsel related to the

failure to challenge the adequacy of the plea proceeding insofar as the plea court

failed to inform the defendant of applicable surcharges. Giambo raises a very

specific claim, which satisfies the dictate of Dunbar. However, Giambo does not

allege prejudice. That is, he makes no argument that had he been informed of the

applicable surcharges he would have foregone the guilty plea and insisted on

going to trial. Indeed, such a claim is contrary to Giambo’s main argument on

appeal—that his trial counsel and the district court forced Giambo to accept the

plea offer against Giambo’s will. Are we to believe that had Giambo been informed

of the surcharges he would have summoned sufficient additional intestinal fortitude

to resist the demands of his allegedly overbearing counsel and the district court?

There is nothing in this record to establish Giambo has a legitimate or viable claim

in this respect, and I would deny the claim on the merits and affirm the judgment

of the postconviction court in its entirety. See Dunbar, 515 N.W.2d at 16 (“On

appeal Dunbar was required to identify specific errors on the part of postconviction

counsel that prejudiced his case. Dunbar has failed to do so. Consequently, we

affirm the district court’s denial of his application for postconviction relief.”).

       For the foregoing reasons, I concur in part and dissent in part.
