                    IN THE COURT OF APPEALS OF IOWA

                                     No. 18-0278
                               Filed November 7, 2018


MICHAEL LEE BUCKLEY,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Judge.



      Michael Buckley appeals 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 Tyler J. Buller, Assistant Attorney

General, for appellee State.



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

       The State charged Michael Lee Buckley with third-degree sexual abuse, a

class “C” felony. Buckley pled guilty to assault with intent to commit sexual abuse,

an aggravated misdemeanor. See Iowa Code § 709.11 (2012); see also id.

§ 708.1.   The district court sentenced him to a prison term, to be served

consecutively with his sentence for another crime. Buckley waived his right to file

a motion in arrest of judgment challenging his plea, and he did not file a direct

appeal of his judgment and sentence.

       Buckley later applied for postconviction relief. He claimed in part that his

plea attorney was ineffective in failing to inform him (1) “of the sentence that would

be imposed through the plea agreement” and (2) “that pleading guilty to assault

with intent to commit sex abuse would result in . . . having to register as a sex

offender for life.” He also claimed his attorney “affirmatively misadvised [him] that

he would only have to register as a sex offender for ten years.” The district court

denied the application following an evidentiary hearing.       The court reasoned,

“Although the requirement to register as a sex offender was not part of the written

plea agreement, it was not required to be so as it is not punitive in nature.”

       On appeal, Buckley argues “the district court erred by finding there was no

essential duty by counsel to inform [him] correctly of the direct consequence of a

lifetime offender registry requirement, before he pled guilty to an aggravated

misdemeanor sexual assault.”       To prove his ineffective-assistance-of-counsel

claim, Buckley had to establish deficient performance and prejudice. Strickland v.

Washington, 466 U.S. 668, 687 (1984).
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       Iowa Code section 692A.106(5) states:

              A sex offender shall, upon a second or subsequent conviction
       that requires a second registration, or upon conviction of an
       aggravated offense, or who has previously been convicted of one or
       more offenses that would have required registration under this
       chapter, register for life.

An “aggravated offense” means a conviction for “[a]ssault with intent to commit

sexual abuse in violation of section 709.11.” Iowa Code § 692A.101(1)(a)(5).

Because Buckley was convicted of an aggravated misdemeanor, he was required

to register as a sex offender for life.

       Buckley’s written memorandum of plea agreement and written guilty plea,

as well as the district court’s order of judgment and sentence, contained no

reference to the sex offender registration requirement. Nor did the district court

inform Buckley of the requirement because Buckley waived his right to personally

address the court and his right to be present at sentencing.

       At the postconviction hearing, Buckley testified that his attorney informed

him of the registration requirement but misinformed him about the duration of the

obligation, stating he would be on the registry for ten years rather than a lifetime.

Defense counsel was not called as a witness. Accordingly, Buckley’s testimony

stood unrebutted. On this record, the question before us is whether counsel’s

misinformation about the duration of the registration requirement entitled Buckley

to have his plea vacated and his conviction and sentence set aside.

       The State does not address this precise question. Instead, the State takes

a step back and focuses on the non-punitive nature of the sex-offender registration

chapter. The State is correct that a provision of the chapter was held to be non-

punitive. See State v. Seering, 701 N.W.2d 655, 667 (Iowa 2005) (holding “the
                                          4


intent of our legislature in enacting section 692A.2A [a provision restricting

convicted sex offenders from living within two thousand feet of an elementary or

secondary school or child care facility] was not punitive”);1 State v. Cole, No. 06-

0579, 2007 WL 257856, at *2 (Iowa Ct. App. Jan. 31, 2007) (“Although the

requirement to register as a sex offender was not part of the written plea

agreement, it was not required to be so as it is not punitive.”). But Seering’s holding

is more nuanced than it once was.

       The Iowa Supreme Court recently qualified Seering as applied to juveniles,

holding “mandatory sex offender registration for juvenile offenders is sufficiently

punitive to amount to imposing criminal punishment.” See In re T.H., 913 N.W.2d

578, 596 (Iowa 2018). And, after Seering, the Iowa Supreme Court retreated from

precedent that held certain consequences to be non-punitive. See State v. Fisher,

877 N.W.2d 676, 684 (Iowa 2016) (holding Iowa “revocation of the driver’s license

of a person convicted of a drug possession offense is mandatory, immediate, and

part of the punishment for that offense” and the district court had an obligation to

inform the defendant of the consequence before accepting the plea); Perez v.

State, 816 N.W.2d 354, 361 (Iowa 2012) (considering Padilla v. Kentucky, 559

U.S. 356 (2010), and its holding that a criminal defendant has a Sixth Amendment

right to receive advice from counsel regarding the risk of deportation before

pleading guilty and concluding if the holding was held to be retroactive, counsel




1
 Iowa Code sections 692A.1 through 692A.16 were repealed by 2009 Iowa Acts chapter
119, section 31. Former section 692A.2A was amended and renumbered as section
692A.106.
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would have had an obligation to timely raise it).2 Although the court has not

specifically held that the section 692A.106(5) lifetime-registration requirement is

punitive, the distinction between punitive and non-punitive consequences stands

on less solid ground than it did when Seering was decided.

       This brings us to the question of whether the sex offender registration

requirement is a collateral consequence of the plea. The State equates “collateral”

with “non-punitive,” arguing “[t]he requirement to register as a sex offender under

chapter 692A is a non-punitive collateral consequence.” The State continues,

“Because the failure to advise a defendant concerning collateral consequences,

even serious ones, cannot provide a basis for a claim of ineffective assistance of

counsel, this court should summarily affirm.”

        The State quotes Mott v. State, 407 N.W.2d 581, 583 (Iowa 1987), for this

proposition. But the holding of Mott—that counsel need not advise clients about

deportation consequences—was effectively overruled. See Perez v. State, 816

N.W.2d 354, 360 (Iowa 2012). More critically, Mott reaffirmed a longstanding

principle directly bearing on Buckley’s case: “if a defendant has been affirmatively

misled by an attorney concerning the consequences of a plea, the plea may be

held to be invalid, even though the consequences are characterized as collateral.”

407 N.W.2d at 583 (citing Meier v. State, 337 N.W.2d 204, 207 (Iowa 1983)); see

also Saadiq v. State, 387 N.W.2d 315, 324 (Iowa 1986) (“Neither defense counsel




2
 Cf. People v. Fredericks, 14 N.E.3d 576, 588 (Ill. Ct. App. 2014) (“[W]e decline to extend
Padilla to require trial courts to inform defendants of sex offender registration before
accepting a guilty plea.”); State v. Williams, 952 N.E.2d 1108, 1113 (Ohio 2011) (holding
sex offender registration law was punitive for purposes of retroactivity analysis).
                                              6

nor the court may misinform a defendant regarding collateral consequences of a

guilty plea.”); State v. Rolfe, No. 04-1248, 2006 WL 126718, at *3–4 (Iowa Ct. App.

Jan. 19, 2006) (same).

       The misinformation received by Buckley about the duration of the sex

offender registration requirement did “not involve trial tactics, strategies, or other

judgment calls that we do not ordinarily second-guess.” Meier, 337 N.W.2d at 206.

Accepting Cole’s holding that the sex offender registration requirement is a

collateral consequence of the plea,3 the misinformation about the consequence

amounted to the breach of an essential duty.

       We turn to the Strickland prejudice prong of the ineffective-assistance test.

The State cites the postconviction court’s credibility finding against Buckley

together with the “overwhelming” evidence of guilt described in the minutes of

testimony as grounds for a finding of no prejudice. The State argues, “In light of

this evidence, the defendant would have likely been convicted and subject to the

same lifetime registration requirement that was imposed after his guilty plea, if he

had elected a trial.”

       In the plea context, “Our standard for the prejudice element in ineffective-

assistance-of-counsel claims remains consistent—in order to satisfy the prejudice

requirement, the defendant must show that there is 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.” State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006); see



       3   See Cole, 2007 WL 257856, at *2.
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also Meier, 337 N.W.2d at 208 (stating prejudice is determined “not from what

petitioner received, but from what he relinquished”); cf. Kirchner v. State, 756

N.W.2d 202, 206 (Iowa 2008) (applying “a subjective standard for the

measurement of prejudice . . . in the determination of whether a defendant would

have accepted a plea offer and received a lesser sentence but for the ineffective

assistance of counsel” (emphasis added)).

       Buckley adamantly stated he would have gone to trial had he known of the

lifetime registration requirement. The postconviction court found his testimony

“disingenuous at best,” given that he faced trial on a class “C” felony. Based on

Buckley’s testimony towards the close of the posconviction hearing, we agree.

       Buckley volunteered that, at the time the plea offer was brought to him, he

“was sitting in county jail for a contempt charge of one year.” After two months

“sitting in the county jail with still ten months left on [his] contempt charge,” he was

“dangled that carrot in front of [his] face, let [him] get out of county jail and go to

prison for 100 days.” The prosecutor then asked, “So you received a considerable

deal, then, correct?” Buckley responded, “Yeah [t]hat’s what you did for me.”

Although the district court required the sentence to be served consecutively with

the sentence imposed on his prior conviction, Buckley’s concession that he

received a deal establishes there is no reasonable probability he would have

insisted on going to trial on the class “C” felony.

       On our de novo review, we affirm the denial of the postconviction-relief

application.

       AFFIRMED.
