                    IN THE COURT OF APPEALS OF IOWA

                                      No. 18-0967
                               Filed September 11, 2019


RICHARD JOSEPH EHLER,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Thomas P. Murphy,

Judge.



      Richard Ehler appeals the dismissal of his application for postconviction

relief. REVERSED AND REMANDED.



      George B. Jones of George B. Jones, PLLC, Lamoni, for appellant.

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

General, for appellee State.



      Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
                                           2


TABOR, Judge.

       Criminal defense attorneys have a material duty to ensure the State follows

the speedy-trial rule.1 The State did not bring Richard Ehler to trial within one year

of his arraignment as mandated by Iowa Rule of Criminal Procedure 2.33(2)(c).

Ehler’s trial counsel moved to dismiss but failed to cite a key authority to the district

court.2 After the district court denied the motion to dismiss and the supreme court

declined to hear Ehler’s case before final judgment, counsel advised Ehler to

accept a favorable plea offer.

       In his postconviction-relief action, Ehler alleged his plea was involuntary

because trial counsel was ineffective. The district court denied Ehler’s application,

holding (1) trial counsel appropriately raised the speedy-trial issue and (2) Ehler

did not show but for counsel’s errors he would have turned down the plea offer and

insisted on going to trial. On appeal, Ehler reiterates trial counsel’s responsibility:

               Counsel had a duty to properly and fully evaluate the merits
       of the speedy trial issue, and to advise Ehler that the trial court was
       wrong in its denial of the motion to dismiss. Had counsel more fully
       researched the applicable case law, counsel would have been aware
       of clear precedent in Ehler’s favor, demonstrating that, under the
       facts present in this case, there was no good cause for the State’s
       failure to bring him to trial within one year of arraignment.

Because no good cause existed for the State’s failure to comply with the speedy-

trial rule, counsel’s advice was not within the range of competence demanded of

attorneys in criminal cases. Thus we reverse and remand for dismissal.



1
  Ennenga v. State, 812 N.W.2d 696, 702 n.5 (Iowa 2012); State v. Utter, 803 N.W.2d 647,
653 (Iowa 2011), overruled on other grounds by Schmidt v. State, 909 N.W.2d 778 (Iowa
2018).
2
  Ehler faults counsel for not relying on State v. Campbell, 714 N.W.2d 622 (Iowa 2006).
On appeal, Ehler contends Campbell “is arguably the most important case to a proper
determination of the motion to dismiss in this case.”
                                         3


I.     Case History

       A. Criminal Proceedings

       Ehler’s ineffective-assistance-of-counsel claim hinges on the violation of his

one-year speedy-trial right. For that reason, we include this detailed chronology

of events in Ehler’s criminal case:

                                  The State filed criminal complaints, alleging
                      8/1/2013    Ehler committed three counts of sexual abuse in
                                  the third degree.
                      8/12/2013   The State filed its trial information.
                                  During a bond-review hearing, the district court
                      8/19/2013   reduced Ehler’s bond and set a pretrial
 August 2013
                                  conference for September 23, 2013.
                                  Defense counsel filed a written arraignment,
                                  plea of not guilty, and waiver of Ehler’s ninety-
                      8/19/2013
                                  day speedy-trial right under Iowa Rule of
                                  Criminal Procedure 2.33(2)(b).
                      8/23/2013   Defense counsel filed a motion to produce.
                                  The court rescheduled the pretrial conference
 September 2013       9/23/2013
                                  date for October 7, 2013.
 October 2013
                                The court rescheduled the pretrial conference
 November 2013        11/4/2013
                                date for December 2, 2013.
                                The court rescheduled the pretrial conference
 December 2013        12/2/2013 date for January 27, 2014 and set trial for April 2,
                                2014.
 January 2014
                                The prosecutor subpoenaed a witness for
 February 2014        2/26/2014
                                deposition on March 19, 2014.
                      3/19/2014 Defense counsel deposed two witnesses.
                                Defense counsel emailed the prosecutor
                      3/20/2014
                                suggesting a plea to lesser charges.
 March 2014                     That same afternoon, defense counsel again
                                emailed the prosecutor asking him to disregard
                      3/20/2014
                                the previous message, saying he did not have
                                “authority to propose any plea at this time.”
                                    4


                             Defense counsel emailed the prosecutor,
                             saying: “It looks like Ehler is still on the trial
                             docket. Do you need me to file a motion,
                 4/1/2014
                             unresisted, and if so is there a judge to rule on it
                             around? Also is the court adm aware of the
                             situation? I thought it was already continued.”
                             The prosecutor emailed defense counsel
                             proposing six trial dates: May 14, 2014; May 28,
                             2014; June 18, 2014; June 25, 2014; July 23,
                 4/11/2014
                             2014; and July 30, 2014. The prosecutor
                             concluded: “I will get an order signed after I hear
                             back from you.”
                             Defense counsel emailed the prosecutor to
                 4/14/2014   discuss the possibility of a plea deal but did not
                             address the proposed trial dates.
April 2014
                             Defense counsel emailed the prosecutor,
                 4/15/2014   saying: “Please call me regarding the proposed
                             trial dates. Thanks.”
                             Defense counsel emailed the prosecutor,
                             saying: “Several things.           First, attached is
                             [Ehler’s] Witness List, and the first Motion in
                 4/25/2014   Limine. I requested for you to call me about the
                             trial date on this . . . and still would like to talk to
                             you. Next, I would like a formal answer to my
                             Motion to Produce.”
                             Defense counsel again emailed the prosecutor,
                             saying: “Attached is the second discovery
                 4/29/2014   motion. Would you make a written response to
                             both please? We also need to tal[k] about court
                             dates.”
                             Defense counsel filed a second motion to
                 5/1/2014
                             produce.
                             The court set a hearing on the motion to produce
                 5/6/2014
                             for May 19, 2014.
May 2014                     Defense counsel filed Ehler’s witness list and a
                 5/9/2014
                             combined motion in limine/motion to suppress.
                             Defense counsel emailed the prosecutor asking
                 5/22/2014   for a copy of a discovery packet the prosecutor
                             had showed him.
June 2014
July 2014
August 2014      8/19/2014 One-year speedy-trial deadline.
                             The court scheduled a pretrial conference for
September 2014   9/8/2014
                             September 15, 2014.
                                          5


         In October 2014, defense counsel moved to dismiss the prosecution based

on the State’s failure to bring Ehler to trial within one year. The motion asserted

Ehler “had not caused any delay that would come close to justifying the State’s

actions.” Defense counsel highlighted the “good cause” standard for extending the

trial beyond the one-year deadline. He then asserted good cause was “obviously

nonexistent in this case.” Defense counsel alleged he had been “diligent and

professional in handling the matter.”         In his view, the prosecutor had not

reciprocated that courtesy—leaving phone calls unreturned.

         For his legal argument, defense counsel cited Iowa Rule of Criminal

Procedure 2.33(2) and two cases: State v. Miller, 637 N.W.2d 201 (Iowa 2001),

and State v. Herrmann, No. 06-1829, 2007 WL 3376881 (Iowa Ct. App. Nov. 15,

2007).

         The motion argued dismissal is required under the rule unless the defendant

waived speedy trial, the delay is attributable to the defendant, or other “good

cause” exists for the delay. See Miller, 637 N.W.2d at 204. The motion also quoted

Herrmann for the proposition:

         “Once the one-year period has expired the State must show either a
         waiver on the part of the defendant or good cause for the
         delay.” . . . [G]ood cause focuses on only one factor, the reason for
         the delay. The State’s burden of demonstrating good cause is a
         heavy one.

Herrmann, 2007 WL 3376881, at *2 (citations omitted) (quoting State v. Mary, 401

N.W.2d 239, 241 (Iowa Ct. App. 1999)).

         In resisting dismissal, the State blamed Ehler for seeking to continue the

pretrial conferences scheduled for late 2013 and early 2014 and asking to

reschedule the April 2014 trial date. The State also noted the defense filed two
                                           6


motions to produce and a combined motion to suppress and motion in limine. But

the State acknowledged, “The lack of resetting went unnoticed until early

September when the State realized that this matter had fallen off the [c]ourt’s

docket and the State requested the [c]ourt set the matter back on the docket.”

       The district court denied Ehler’s motion to dismiss, largely adopting the

State’s argument:

              [Ehler] participated in the delay of the timely prosecution of
       this matter through repeated [p]retrial [c]onferences, the taking of
       depositions outside the timelines outlined in Iowa Rule of Criminal
       Procedure 2.13(6) . . . , filing of a [m]otion to [s]uppress outside the
       timelines outlined in 2.11(4) . . . , and the continuation of the April 2,
       2014 trial date. [Ehler] acquiesced in the delay and should not profit
       from the State’s failure to obtain an extension of the time period for
       trial.

       That ruling “shocked” defense counsel, according to his postconviction

testimony. Counsel persisted in advancing Ehler’s speedy-trial claim, asking our

supreme court to grant discretionary review. Here’s how defense counsel framed

the issue:

              Whether delay can be attributed to [Ehler] at early stages of
       the case, because of routine pretrial conference continuances and
       the scheduling and taking of depositions, despite obvious and
       flagrant prosecutorial indifference from April 1, 2014, until May 22,
       2014, leading up to the expiration of the one year speedy trial
       deadline on August 14, 2014.

On top of that, the application impugned the district court’s reliance on pretrial

discovery matters and motion practice in attributing the delay to Ehler.            The

application cited just one authority—Rule 2.33(2)(c). The supreme court denied

discretionary review. And the district court set Ehler’s case for trial.

       Before the trial date, the State offered to dismiss two counts of sexual abuse

in the third degree in exchange for Ehler’s guilty plea to the remaining count.
                                            7


Feeling defeated, defense counsel encouraged Ehler to accept the State’s plea

offer. As counsel explained during the postconviction hearing:

       I’m sure I would have told Mr. Ehler, like I would have told anybody,
       that the supreme court doesn’t usually reverse on cases like this.
       And there was at least a prima facie case I didn’t agree with of delay
       attributable to the defendant, . . . and I would have told Mr. Ehler, like
       I would have told him if the case was today, that this is a really good
       deal; you’re going to lose some rights.
               ....
               So I would have told Mr. Ehler . . . that he should probably do
       it and he—he could easily lose on appeal and go to prison if
       convicted at trial.

With that advice from counsel, Ehler pleaded guilty to one count of third-degree

sexual abuse (a class “C” felony), and the court sentenced him to an indeterminate

prison term not to exceed ten years. Ehler successfully moved for reconsideration

of his prison sentence, receiving a suspended sentence and three years probation.

He did not file a direct appeal.

       B.      Postconviction Proceedings

       In September 2017, Ehler applied for postconviction relief. His application

highlighted defense counsel’s inefficacy in advising Ehler about “the strength of

the speedy trial defense, and of the likelihood of prevailing on that defense on

appeal.” Ehler contended counsel’s poor performance rendered his guilty plea

involuntary and unintelligent.      Ehler believed counsel reached a misguided

conclusion that case law interpreting other subsections of rule 2.33 did not apply

to the one-year deadline.3 According to Ehler’s application, that misapprehension



3
  Ehler offered evidence to emphasize trial counsel’s scanty legal research on the speedy-
trial issue. Postconviction counsel asserted the Miller and Herrmann cases counsel cited
in the motion to dismiss “came up under the Lexis[]Nexis search query for ‘Trial within one
year.’” But we note the exhibit offered by postconviction counsel included the unpublished
case involving Ravin Miller, State v. Miller, No. 12-1168, 2014 WL 1512531, at *6 (Iowa
                                              8


had a cascading effect. It led to (1) counsel’s deficient advocacy, (2) the district

court’s denial of his motion to dismiss, (3) the supreme court’s denial of his

application    for   discretionary review,        and   finally   (4)   counsel’s   ultimate

recommendation that Ehler plead guilty.

         Drilling deeper, Ehler maintained defense counsel missed the mark by not

citing Campbell for this interpretation of the speedy trial rule:

         The decisive inquiry in these matters should be whether events that
         impeded the progress of the case and were attributable to the
         defendant or to some other good cause for delay served as a matter
         of practical necessity to move the trial date beyond the initial ninety-
         day period required by the rule.

714 N.W.2d at 628.

         The postconviction court denied Ehler’s application. Ehler appeals.

II.      Scope and Standards of Review

         We generally review postconviction proceedings for correction of legal

error.   Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). But when the

underlying claim to relief stems from a constitutional violation, such as ineffective

assistance of counsel, we review de novo. Id.

         Another layer down, if Ehler’s motion to dismiss for a speedy trial violation

had come to us on direct appeal, our review would have been for an abuse of

discretion. See Ennenga, 812 N.W.2d at 707. But “that discretion is a narrow one,

as it relates to circumstances that provide good cause for delay of the trial.” Id.

(quoting Campbell, 714 N.W.2d at 627). Here, because our review is de novo, we




Ct. App. Apr. 16, 2014) (addressing a one-year speedy trial issue). Meanwhile, trial
counsel’s motion to dismiss cited the published case involving Oliver Miller, State v. Miller,
637 N.W.2d 201, 204 (Iowa 2001) (addressing a ninety-day speedy trial issue).
                                         9


will independently determine whether the State had good cause for the delay in

bringing Ehler to trial. See id.

III.   Analysis

       To show plea counsel was ineffective, Ehler’s burden is twofold: first, he

must prove counsel failed to perform an essential duty, and second, he must show

that failure caused prejudice. See State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). We measure

defense counsel’s performance “against the standard of a reasonably competent

practitioner with the presumption that the attorney performed his duties in a

competent manner.” Id. (quoting State v. Dalton, 674 N.W.2d 111, 119 (Iowa

2004)). The test for prejudice is whether but for counsel’s errors, Ehler would not

have pleaded guilty but would have insisted on going to trial. See Hill v. Lockhart,

474 U.S. 52, 59 (1985).

       A. Did counsel breach an essential duty?

       Ehler alleges his plea counsel was remiss in two ways: (1) by his failure to

adequately research and argue the law in his motion to dismiss in the district court

and in the application for discretionary review; and (2) by his failure to adequately

advise Ehler of the applicable legal authority supporting his speedy trial defense

when he advised Ehler to enter his guilty plea.

       Responding to these allegations, the State agrees Ehler preserved error on

the second claim—that counsel offered faulty advice on the guilty plea. But, citing

State v. Carroll, 767 N.W.2d 638, 641–42 (Iowa 2009), the State contends Ehler’s

guilty plea “waived” the first claim because any shortcoming in counsel’s research

and advocacy on the motion to dismiss was “not intrinsic to the plea.”
                                          10


       In reply, Ehler cedes the “real question” is how counsel performed at the

time of the plea. But he contends counsel’s incompetence in preparing the motion

to dismiss is “persuasive evidence” of his failure to understand the legal principles

motivating his recommendation Ehler take the plea offer because he could “easily

lose” on appeal. Ehler’s nuanced reply echoes the holding in Tollett v. Henderson,

411 U.S. 258, 267 (1973): “while claims of prior constitutional deprivation may play

a part in evaluating the advice rendered by counsel, they are not themselves

independent grounds” for relief.

       The bottom line is Ehler may “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.” See

Carroll, 767 N.W.2d at 642 (quoting Tollett, 411 U.S. at 265–67) (reciting standard

of proof from McMann v. Richardson, 397 U.S. 759, 770–71 (1970)). “Counsel's

failure to evaluate properly facts giving rise to a constitutional claim or his failure

to properly inform himself of facts that would have shown the existence of a

constitutional claim, might in particular fact situations meet this standard of proof.”

Tollett, 411 U.S. at 266–67.

       Considering that passage from Tollett, we disagree with the State’s

contention Ehler’s guilty plea “waived” an ineffectiveness claim stemming from

counsel’s handling of the speedy-trial issue.        In Carroll, our supreme court

reiterated “there are no such categories of breach of duty resulting in prejudice that

cannot, as a matter of law, survive a guilty plea.” 767 N.W.2d at 644. “Only

through a case-by-case analysis will a court be able to determine whether counsel
                                           11


in a particular case breached a duty in advance of a guilty plea, and whether any

such breach rendered the defendant’s plea unintelligent or involuntary.” Id.

       Even more on point are Utter and Ennenga. In both cases, the State

violated rule 2.33(2). And in both cases, the defendants pleaded guilty anyway.

On direct appeal, Utter claimed “trial counsel’s failure to file a motion to dismiss

caused her to improvidently plead guilty to a charge that the State would have

otherwise been barred from pursuing had her counsel performed effectively.”

Utter, 803 N.W.2d at 652. Our supreme court agreed. Id. The court reasoned:

“to provide reasonably competent representation when a criminal defendant

asserts his or her speedy trial rights, counsel must ensure that the State abides by

the time restrictions established in Iowa Rule of Criminal Procedure 2.33.” Id. The

court held: “Utter’s trial counsel failed to perform an essential duty by failing to file

a motion to dismiss based on the State’s violation of the speedy indictment rule

and, thereafter, permitting Utter to plead guilty after the speedy indictment time

expired.” Id.

       Similarly, in Ennenga, the court found counsel was ineffective for failing to

protect the defendant’s right to a speedy indictment. 812 N.W.2d at 708. In that

case, the State argued reasonably competent counsel had no duty to “double

check” if the clerk of court file stamped a trial information, when the State provided

the signed charging document to the defense. See id. at 702 n.5. But the Ennenga

majority rejected the State’s narrow framing of the issue. The majority noted, “The

reason counsel failed to ensure the State followed rule 2.33 was not relevant in

Utter and is not relevant here.” Id. The dissent decried the majority’s reading of
                                             12

Utter as creating an “absolute duty” to make certain the State honored the speedy

trial rights of the accused. Id. at 711 (Mansfield, J., dissenting).

       Like Utter and Ennenga, Ehler claims counsel failed to ensure the State

followed rule 2.33. In holding with those cases, the reason for counsel’s failure is

not relevant. An under-researched and unconvincing motion to dismiss falls into

the same bucket as no motion at all. For that reason, we will address in tandem

the two breaches of duty Ehler attributes to counsel.

       1. Did counsel perform inadequate research and advocacy?

       Our examination of defense counsel’s performance starts with his efforts to

dismiss the charges under rule 2.33(3)(c). That rule requires all criminal cases to

be brought to trial within one year after the defendant’s initial arraignment “unless

an extension is granted by the court, upon a showing of good cause.”4 Iowa R.

Crim. P. 2.33(3)(c). Missing the deadline without good cause leads to an “absolute

dismissal” of the prosecution—a discharge with prejudice. State v. Taylor, 881

N.W.2d 72, 78 (Iowa 2016) (quoting Ennenga, 812 N.W.2d at 701).

       Defense counsel recognized the grounds to dismiss after the one-year

anniversary of Ehler’s arraignment came and went without the State bringing him

to trial. His motion detailed the progression of the case—complete with supporting

documentation. In support of dismissal, he cited the pertinent rule and two cases—

Miller, 637 N.W.2d 201, and Herrmann, 2007 WL 3376881. And based on those

cases, counsel set out the basic test for deciding whether dismissal is required.




4
 This rule implements the speedy trial rights guaranteed by article I, section 10 of the Iowa
Constitution and the Sixth Amendment of the United States Constitution. State v. Olson,
528 N.W.2d 651, 653 (Iowa Ct. App. 1995).
                                            13


       What counsel didn’t do and, in Ehler’s estimation, should have done was

“locate, read, cite [and] argue . . . Campbell, 714 N.W.2d [at 628,] or any of the

many cases subsequent to Campbell, which cited Campbell as persuasive

authority on the speedy trial issue.”5 In this appeal, Ehler acknowledges Miller is

“generally good law.” But he believes some statements in Miller are misleading

and not in line with Campbell and its progeny. In particular, Ehler objects to Miller’s

emphasis on “delay attributable to the defendant.” See 637 N.W.2d at 204. As

Ehler emphasizes on appeal: “It was, indeed, this point that ultimately persuaded

the trial court to deny the motion to dismiss.”

       Ehler criticizes his trial counsel for limiting his legal research to one-year

speedy-trial violations to the exclusion of analogous case law addressing the other

deadlines in rule 2.33(2).6 Indeed, the speedy-trial rule imposes three “outer limits”

for prosecutors. Iowa R. Crim. P. 2.33(2) (proclaiming “public policy of the state of

Iowa” requires “criminal prosecutions be concluded at the earliest possible time

consistent with a fair trial to both parties”). Subsection (a) requires the State to

bring an indictment within forty-five days of arrest; subsection (b) requires the State

to bring a defendant to trial within ninety days of indictment; subsection (c) requires

the State to bring a defendant to trial within one year of arraignment. Id. (including

a good-cause exception for each time limit).




5
  By our count, twenty-nine Iowa appellate decisions cite Campbell for its discussion of
“good cause” to excuse the State’s failure to meet the deadlines in rule 2.33(2).
6
  As noted in footnote 3, the Miller case cited by counsel in the motion to dismiss involved
a ninety-day speedy trial issue. 637 N.W.2d at 204. But at the postconviction hearing,
trial counsel—in answering a question from the county attorney—testified there would be
no reason to cite “a 90-day case in a one-year matter.”
                                        14


       To the extent counsel limited his research to one-year speedy trial cases,

he was wrong to operate in that silo. The legislature intended uniform application

of the good-cause standard across those three subsections. State v. Miller, 311

N.W.2d 81, 83 (Iowa 1981). Our precedents do not discriminate when interpreting

what is good cause to miss any of the three deadlines.         See, e.g., State v.

Petersen, 288 N.W.2d 332, 335 (Iowa 1980) (addressing ninety-day speedy trial

issue in speedy-indictment case); State v. Rodriguez, 511 N.W.2d 382, 383 (Iowa

1994) (citing Petersen in one-year speedy trial case); State v. Elder, 868 N.W.2d

448, 453 (Iowa Ct. App. 2015) (citing Campbell in one-year speedy trial case).

       But the postconviction court believed trial counsel “appropriately raised the

delay issue” despite failing to cite Campbell in the motion to dismiss. It found

Campbell did not “deviate substantially” from counsel’s argument about delay

attributable to the defendant or other “good cause” for the State to miss the one-

year deadline. In defending the denial of postconviction relief, the State argues a

citation to Campbell “would not necessarily have changed the ruling.” The State

asserts Campbell’s holding “dealt with how to count days” and the postconviction

order “had nothing to do with counting days.”

       While we view the State’s characterization of Campbell as too narrow, we

do not hold trial counsel breached a duty by failing to cite one particular case. In

reality, counsel’s motion to dismiss was more comprehensive than many trial court

motions we see on appeal. Campbell did not overturn previous interpretations of

the speedy-trial rules. Instead, it offered a new focus on “whether the events that

impeded the progress of the case and were attributable to the defendant or to

some other good cause for delay served as a matter of practical necessity to move
                                            15

the trial date” beyond the 2.33(2) deadline.          Campbell, 714 N.W.2d at 628

(emphasis added). The Iowa Practice Series pinpoints the case’s significance:

       In his opinion on further review of the Iowa Court of Appeals, Justice
       Carter took the lower court to task for specifically quantifying the
       amount of delay attributable to each of the defendant’s actions. It is
       not that mechanical, he explained. The question is simply whether
       the defendant impeded the progress of his or her trial.

4A B. John Burns, Iowa Practice Series: Criminal Procedure § 7:3, at 95 n.56 (2019

ed.) (citing Campbell, 714 N.W.2d at 628). Counsel did not argue to the district

court that Ehler’s actions could not have practically impeded the progress of his

trial when the State took no action to bring Ehler to trial in all of June and July plus

half of August 2014.

       To his credit, counsel believed the district court wrongly denied the motion

to dismiss. But he cited no case law to convince the supreme court to take the

case before final judgment. Trial counsel testified he was “disappointed” when the

supreme court didn’t take discretionary review. And, as a result, his optimism in

the speedy-trial defense faded.7

       By disregarding the point stressed by Justice Carter in Campbell, counsel

failed to persuasively present his argument for dismissal.                 A persuasive

presentation would have underscored the State’s burden to prove delays

attributable to the defendant or other good cause operated as a matter of practical


7
  Counsel may have read too much into the supreme court’s denial. “Such denial was not
an approval of the ruling but merely a refusal, upon considerations [it] deemed sufficient,
to review it in advance of final judgment.” Correll v. Goodfellow, 125 N.W.2d 745, 748
(Iowa 1964); accord Deere Mfg. Co. v. Zeiner, 79 N.W.2d 403, 403 (Iowa 1956) (“Our
refusal to grant an appeal from these interlocutory rulings in advance of final judgment
was not an affirmance of the rulings. It was merely a refusal, upon considerations we
deemed sufficient, to review the rulings in advance of final judgment. Had we granted the
appeal of course we might have affirmed the rulings or reversed them. Then and not until
then would there have been an adjudication as to their correctness.”).
                                          16

necessity to move the trial beyond the deadline. Campbell, 714 N.W.2d at 628;

see also State v. Winters, 690 N.W.2d 903, 909 (Iowa 2005) (“Our approach to

good cause reveals that the determination of whether pretrial motions and pretrial

discovery can excuse a failure to comply with the speedy-trial rule essentially rests

on the strength of the underlying reasons for the delay in disposing of the motions

or completing the discovery, not the mere existence of the motions or request for

discovery.”). Counsel squandered his opportunity to convince the district court or

the supreme court that his client should not have to face trial more than one year

after arraignment. While we do not find counsel’s research and advocacy to be a

separate breach of duty, we do view that performance as having influenced

counsel’s advice to Ehler to accept the plea.

       2. Did counsel offer flawed plea advice?

       After the district court denied the motion to dismiss, counsel told Ehler the

speedy-trial issue “looked like a loser on appeal.” Given that gloomy assessment

of Ehler’s chances for reversal, counsel recommended his client take the plea

offer. As the “quid pro quo,” Ehler agreed to give up the right to appeal the speedy-

trial issue, according to trial counsel’s postconviction testimony.8

       Focusing on that plea deal, Ehler argues counsel was ineffective for failing

to “understand the law and explain it to his client in advance of his client’s guilty

plea.” Ehler contends counsel’s plea advice “breached a clear duty.”

       To counter Ehler’s argument, the State contends counsel’s advice was

“merely a suggestion, not a directive to plead guilty.” The State elaborates: “[trial


8
  Despite trial counsel’s characterization, forfeiture of the right to appeal was not an
express condition of the written plea agreement included in the postconviction record.
                                          17


counsel] did not guarantee Ehler would lose on appeal, saying only that Ehler could

easily lose.” The State asserts counsel “left the decision squarely with Ehler.” The

State cites cases from other jurisdictions explaining counsel’s mistaken prediction

seldom constitutes a breach of duty. See, e.g., United States v. Marceleno, 819

F.3d 1267, 1271–72, 1276 (10th Cir. 2016); Anderson v. United States, 334 F.

App’x 8, 10–11 (7th Cir. 2009) (quoting Julian v. Bartley, 495 F.3d 487, 495 (7th

Cir. 2007)); Yonga v. State, 108 A.3d 448, 465 (Md. Ct. Spec. App. 2015).

       No question, counsel’s misevaluation of the strength of the State’s case will

not always invalidate a guilty plea. See Yonga, 108 A.3d at 465 (“A mistaken

guess about the admissibility of a confession will not invalidate a guilty plea.”). But

by the same token, counsel cannot evade responsibility for bad advice simply by

hedging. As the Seventh Circuit aptly summarized in Julian v. Bartley:

       [O]ne would be hard pressed to find a lawyer who guaranteed a client
       anything. Guarantees in the law are hard to come by, particularly in
       the topsy-turvy world of sentencing. Were we to constrain claims for
       ineffective assistance of counsel only to those who received
       guarantees from their lawyers, we surely would eviscerate the law
       regarding the right to effective counsel.

495 F.3d at 495–96 (reiterating test for counsel’s performance as “whether the

legal advice was that of a reasonably competent attorney”).

       It is true counsel would be unwise to guarantee a particular outcome. But

if counsel had examined and understood the reasoning in CampbelI, he would not

have predicted Ehler would lose the speedy-trial issue on appeal.9 See, e.g.,


9
  The State suggests we cannot assume an appellate court would have correctly applied
the law when presented with controlling authority. The State contends:
       [A]n appellate court might have relied on Campbell’s “matter of practical
       necessity” language to overturn the district court’s denial of the motion to
       dismiss. 714 N.W.2d at 628. But an appellate court might instead have
       agreed with the district court that Ehler could not acquiesce in the delay
                                            18

Elder, 868 N.W.2d at 455 (reversing district court’s denial of motion to dismiss

when “last continuance sought by Elder continued trial to September 24, 2013,

with six weeks remaining available thereafter in which to bring the case to trial”).

Counsel’s failure to provide well-informed advice about the chances of success on

appeal breached an essential duty. That breach rendered Ehler’s plea involuntary.

       B. Did counsel’s breach prejudice Ehler?

       Satisfied that Ehler proved counsel breached an essential duty, we turn to

prejudice. That prejudice inquiry “focuses on whether counsel’s constitutionally

ineffective performance affected the outcome of the plea process.” Hill, 474 U.S.

at 59. Stated another way, Ehler must show but for counsel’s mishandling of the

speedy-trial issue, he would not have accepted the plea offer and would have

insisted on going to trial to preserve his appellate rights. See id. (explaining when

plea counsel gives deficient advice about the viability of a defense, the prejudice

inquiry depends largely on whether the defense would have succeeded, leading a

rational defendant to insist on going to trial).        A defendant cannot meet the

prejudice standard with only a “conclusory claim” of willingness to stand trial. State

v. Myers, 653 N.W.2d 574, 579 (Iowa 2002).

       Ehler has more than a conclusory claim that he would have insisted on

going to trial if properly advised by counsel that he could win the speedy-trial issue.




       then benefit from his dilatory conduct. See State v. Miller, 311 N.W.2d 81,
       83–84 (Iowa 1981); State v. Ruiz, 496 N.W.2d 789, 792 (Iowa Ct. App.
       1992). Or an appellate court might have deferred to the district court’s fact
       findings in applying the abuse-of-discretion standard. See Campbell, 714
       N.W.2d at 627.
We will address this contention in our prejudice analysis.
                                         19


As Ehler points out, he was willing to turn down an earlier, even more favorable,

plea agreement the State dangled after the one year expired and before trial

counsel moved to dismiss. And Ehler testified at the postconviction hearing he

would have refused the State’s new offer after losing the motion to dismiss had

counsel properly evaluated the viability of his appeal.

       On the other side, the State highlights the risks Ehler avoided by pleading

guilty—prolonged incarceration, emotional consequences, and possible loss on

appeal. The State maintains—even if counsel had advised Ehler he was likely to

win on appeal—Ehler did not show he would have opted to face trial and a potential

thirty years in prison to appeal an issue he had just lost in the district court. The

State clings to the notion that the appellate court, properly briefed, might have

reversed the district court but might not have.

       We need not entertain such hypotheticals.           The prejudice standard

presumes judges act “according to the law.” Strickland, 466 U.S. at 694. “The

assessment of prejudice should proceed on the assumption that the decisionmaker

is reasonably, conscientiously, and impartially applying the standards that govern

the decision.” Id. at 695. Viewed objectively, Ehler had a winning speedy-trial

claim. The State does not argue otherwise in this appeal.

       We find Ehler would not have agreed to plead guilty if he had known the

appellate court would be required to reverse the district court’s ruling on the motion

to dismiss under rule 2.33(2)(c). See Ennenga, 812 N.W.2d at 708–09. For that

reason, his plea was not voluntary or intelligent. Id. And thus a “reasonable

probability exists that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. (quoting Utter, 803 N.W.2d at 655)
                                            20


(noting dismissal under rule 2.33 would create an absolute bar to further

prosecution for these offenses).

       C. Is dismissal the appropriate remedy?

       Ehler asks us for direct dismissal of his charges under rule 2.33(2)(c). By

contrast, the State argues the appropriate remedy is to set aside the plea and

remand for Ehler to either plead anew or go to trial.10

       The State’s remedy proposal hinges on its misdirected preservation

argument.     As we explained above, we see no reason to deviate from the

ineffective-assistance analysis in Utter and Ennenga. “A dismissal under rule 2.33

would create an absolute bar to further prosecution for these offenses.” See

Ennenga, 812 N.W.2d at 708 (quoting Utter, 803 N.W.2d at 654).




10
   To show this remedy is appropriate, the State cites three cases where the appellate
court remanded without dismissing. But none of those cases concern ineffective advice
on a matter that, if counsel were effective, would lead to dismissal. See Stovall v. State,
340 N.W.2d 265, 267 (Iowa 1983) (vacating plea where counsel and court were mistaken
about parole eligibility); Meier v. State, 337 N.W.2d 204, 207 (Iowa 1983) (finding counsel
ineffective for misinforming defendant of sentencing consequences); State v. Ali, No. 16-
0378, 2017 WL 936112, at *3 (Iowa Ct. App. Mar. 8, 2017) (finding counsel ineffective for
providing inaccurate advice on immigration consequences).
        And we are unconvinced by the State’s policy argument that if we dismiss, “Ehler
will reap a considerable windfall.” Ehler was entitled to effective assistance of counsel.
And had he received effective assistance, the court would have dismissed the charges.
See Ennenga, 812 N.W.2d at 708. We perceive no windfall by placing Ehler in the position
he would have been absent counsel’s breach. See Windfall, Webster’s Third New
International Dictionary 2620 (2d ed. 2002) (“An unexpected, unearned, or sudden gain
or advantage.”); see also Commonwealth v. Barbour, 189 A.3d 944, 959 (Pa. 2018) (“[T]he
Commonwealth suggests that Barbour seeks to profit from his wrongdoing, and that to
afford him relief would be to grant him a windfall, it overlooks a countervailing
consideration. The Commonwealth also may not benefit from its own fault, and the
dereliction of its duty to provide a speedy trial may not be excused.”).
                                      21


      We remand the case to the district court with instructions to grant Ehler’s

postconviction-relief application, vacate the guilty plea, and dismiss the trial

information under rule 2.33(2)(c).

      REVERSED AND REMANDED.
