                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-2007
                            Filed November 13, 2014


GUILLERMO LOPEZ-HERNANDEZ,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



       Guillermo Lopez-Hernandez appeals the district court’s denial of his

postconviction-relief application. AFFIRMED.




       Mark C. Smith, State Appellate Defender, and Martha J. Lucey and

Dennis D. Hendrickson, Assistant Appellate Defenders, for appellant.

       Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, John P. Sarcone, County Attorney, and Nan Horvat, Assistant County

Attorney, for appellee State.




       Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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VAITHESWARAN, P.J.

       Guillermo Lopez-Hernandez pled guilty to two counts of third-degree

sexual abuse in connection with the fondling of a twelve-year-old girl. He was

sentenced to prison terms not exceeding ten years, to be served consecutively.

His plea attorney did not file a notice of appeal.

       Lopez-Hernandez filed a postconviction relief application. He alleged his

plea attorney was ineffective in failing to “perfect an appeal based upon an abuse

of discretion by the sentencing judge when ordering the sentences imposed to be

run consecutive and not concurrent.”          Following a hearing, the district court

denied the application.

       On appeal, Lopez-Hernandez contends the district court “erred in failing to

find criminal case counsel ineffective for failing to file a direct appeal.” In his

view, “an appeal issue existed—abuse of sentencing discretion—for the court

determining lack of acceptance of responsibility where, arguably, there was

acceptance of responsibility.”       He asserts there was “no attorney-client

discussion about appealing from an abuse of sentencing discretion.”

       The United States Supreme Court addressed this type of ineffective-

assistance-of-counsel claim in Roe v. Flores–Ortega, 528 U.S. 470, 478 (2000).

There, the defendant claimed his plea attorney did not file a notice of appeal as

she had promised to do. Flores-Ortega, 528 U.S. at 474. The Court framed the

issue as follows: “Is counsel deficient for not filing a notice of appeal when the

defendant has not clearly conveyed his wishes one way or the other?” Id. at 477.

The Court articulated a two-part analysis: (1) “whether counsel in fact consulted
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with the defendant about an appeal” and (2) “whether counsel’s failure to consult

with the defendant itself constitutes deficient performance.” Id. at 478.

           Beginning with the first question, Lopez-Hernandez’s attorney testified by

deposition that her standard practice was to engage in a conversation about

appeal rights but she had no specific recollection of such a discussion with

Lopez-Hernandez. Lopez-Hernandez, in contrast, unequivocally testified he had

no such discussion with her after sentencing.            Because Lopez-Hernandez

recalled the absence of a discussion and his attorney had no specific recollection

one way or another, Lopez-Hernandez’s testimony is necessarily controlling.

Accordingly, on our de novo review, we find counsel did not engage in a

discussion with Lopez-Hernandez about his appeal rights.

           This brings us to the second question: “whether counsel’s failure to

consult with the defendant itself constitutes deficient performance.” Id.

           [C]ounsel has a constitutionally imposed duty to consult with the
           defendant about an appeal when there is reason to think either
           (1) that a rational defendant would want to appeal (for example,
           because there are nonfrivolous grounds for appeal), or (2) that this
           particular defendant reasonably demonstrated to counsel that he
           was interested in appealing.”

Id. at 480.

           To reiterate, the district court based the decision to impose consecutive

sentences on Lopez-Hernandez’s failure to take full responsibility for his actions.

Lopez-Hernandez contends the court’s reasoning amounts to an abuse of

discretion because his guilty plea was tantamount to taking full responsibility.

Lopez-Hernandez concedes the court’s statement did not render the sentence

illegal.
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       With this concession in mind, we conclude a rational defendant would not

have wanted to appeal the district court’s discretionary sentence if the sole basis

for the appeal was the court’s reliance on the defendant’s failure to take full

responsibility for his actions.   A rational defendant would have thought twice

about appealing on this ground where the court’s statement was supported by

the defendant’s description of the offense as occurring while he was “playing”

with the child.

       We also find no reason to believe this specific defendant had an interest in

appealing the consecutive sentences.          At the plea hearing, the district court

asked Lopez-Hernandez if he knew “what the maximum and minimum penalties”

were for the crime. Lopez-Hernandez responded, “Yes.” The court then asked

him what he understood the maximum sentence to be.                 Lopez-Hernandez

responded, “Ten years per each.”           After additional discussion about the

sentence, the court inquired, “Do you have any questions about either the

maximum or minimum penalty?” Lopez-Hernandez responded with the following

question: “So how much would the maximum be?” The court answered, “The

maximum would be twenty years in prison.”

       At the sentencing hearing, Lopez-Hernandez’s attorney asked the court to

impose the sentences concurrently “for a period of incarceration not to exceed

ten years.” Lopez-Hernandez, who had the benefit of an interpreter, offered no

protestations when the district court declined to adopt this recommendation and

decided to impose the sentences consecutively.              He also expressed an

understanding of his appeal rights as articulated by the district court.
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       In his testimonial deposition introduced at the postconviction relief hearing,

Lopez-Hernandez admitted he pled guilty to a reduced crime and he could have

faced up to twenty-five years in prison on the original charges. He also made it

clear he only wished to appeal the sentence and not the plea. Accordingly, his

assertion that he would have appealed the consecutive sentences rings hollow.

       In the end, Lopez-Hernandez’s ineffective-assistance-of-counsel claim

looks very much like the following examples of professional competence, rather

than incompetence, cited by the United States Supreme Court in Flores-Ortega:

               For example, suppose that a defendant consults with
       counsel; counsel advises the defendant that a guilty plea probably
       will lead to a 2 year sentence; the defendant expresses satisfaction
       and pleads guilty; the court sentences the defendant to 2 years’
       imprisonment as expected and informs the defendant of his appeal
       rights; the defendant does not express any interest in appealing,
       and counsel concludes that there are no nonfrivolous grounds for
       appeal. Under these circumstances, it would be difficult to say that
       counsel is “professionally unreasonable,” as a constitutional matter,
       in not consulting with such a defendant regarding an appeal. Or,
       for example, suppose a sentencing court’s instructions to a
       defendant about his appeal rights in a particular case are so clear
       and informative as to substitute for counsel’s duty to consult. In
       some cases, counsel might then reasonably decide that he need
       not repeat that information. We therefore reject a bright-line rule
       that counsel must always consult with the defendant regarding an
       appeal.

Id. at 479-80 (internal citation omitted). We conclude counsel’s failure to consult

with Lopez-Hernandez did not amount to deficient performance. We affirm the

district court’s denial of his postconviction-relief application.

       AFFIRMED.
