                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1029
                               Filed June 21, 2017


DEMARKUS W. RUCKMAN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
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      Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



      DeMarkus Ruckman appeals the district court’s denial of his application

for postconviction relief. AFFIRMED.




      Joey T. Hoover of Hoover Law Firm, P.L.L.C., Winterset, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee State.




      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       The State charged DeMarkus Ruckman with second-degree sexual abuse

based on acts he committed on a fifteen-year-old girl. Ruckman pled guilty to

third-degree kidnapping and assault with intent to commit sexual abuse.

       Ruckman filed an application for postconviction relief, claiming in part that

his plea attorney “coerced and misled” him into pleading guilty. The district court

denied the application following an evidentiary hearing.

       On appeal, Ruckman argues “he was coerced into taking the plea deal.”

He contends “the State could not have proved that he committed the act of Sex

Abuse 2nd degree as he didn’t penetrate [the girl] or have sex with her,” but

“[d]espite the above facts Trial Counsel advised [him] that she did not think she

could win at trial.”    In his view, “[h]ad [counsel] been more confident and

enthusiastic about the case he would have [gone] to trial because he had a good

case to go to trial.”

       A guilty plea “waives all defenses not intrinsic to the plea.”      State v.

Carroll, 767 N.W.2d 638, 641 (Iowa 2009).        A defendant can “challenge the

validity of his guilty plea by proving the advice he received from counsel in

connection with the plea was not within the range of competence demanded of

attorneys in criminal cases.” Id. at 642. This is the crux of Ruckman’s argument.

To prevail, he must show (1) counsel breached an essential duty and (2)

prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687 (1984). If we

conclude Ruckman “has failed to establish either of these elements, we need not

address the remaining element.” State v. Thorndike, 860 N.W.2d 316, 320 (Iowa

2015). We elect to focus on the breach prong.
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       Ruckman’s attorney testified by deposition about the viability of the State’s

charge of second-degree sex abuse. She acknowledged Ruckman’s belief that

“he had to have a full sexual intercourse with somebody for it to be sex abuse”

but stated “that’s not the way the law is written and it’s not the way the law is

interpreted.” She testified, “Sexual contact is defined differently in the law than

what . . . Mr. Ruckman believed.” She discussed the difference with Ruckman.

Based on her investigation of the facts, which included a deposition of the girl

Ruckman was charged with abusing, she concluded Ruckman would “likely . . .

be convicted of a sex offense” if he proceeded “to trial in front of a jury” and “he

was better off taking the plea agreement as it was.”

       Ruckman’s attorney admirably assessed the law and the facts on

Ruckman’s behalf. She correctly disabused Ruckman of the notion that he could

not be found guilty of sexual abuse without penetration of his penis into the girl’s

vagina. In pertinent part, sexual abuse is defined as “[a]ny sex act between

persons . . . when the act is performed with the other person . . . by force or

against the will of the other. Iowa Code § 709.1 (2015). “Sex act,” in turn,

means several things, including “[p]enetration of the penis into the vagina” but

also including “[c]ontact between the mouth and genitalia.” Id. § 702.17(1), (2).

During her deposition, the abused girl stated Ruckman was “[n]ot really” able to

put his penis inside her vagina, but he did have her “suck his penis.” As his

attorney concluded, this testimony suggested the State would be able to prove

the commission of a sex act by Ruckman if he went to trial on the second-degree

sexual abuse charge.
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       Ruckman’s attorney acted competently in apprising Ruckman of “what we

believe the facts will be at trial” and “the risks and the benefits” of pleading guilty.

On our de novo review, we find scant if any evidence that she coerced Ruckman

into entering a guilty plea to third-degree kidnapping and assault with intent to

commit sexual abuse in lieu of going to trial on a charge of second-degree sexual

abuse. To the contrary, she gave Ruckman all the information he needed to

make an informed decision about whether to go to trial or accept the plea offer.

Ruckman accepted the offer and, in the attorney’s recollection, “never”

expressed a desire “to back out of the deal.”

       We affirm the district court’s denial of Ruckman’s postconviction relief

application.

       AFFIRMED.
