                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-1171
                                Filed May 20, 2015


ARNOLD GRICE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, Mary E. Howes,

Judge.



       Arnold Grice appeals following the denial of his application for

postconviction relief. AFFIRMED.



       Kent A. Simmons, Bettendorf, for appellant.

       Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney

General, Michael J. Walton, County Attorney, and Julie Walton, Assistant County

Attorney, for appellee State.




       Considered by Potterfield, P.J., Bower, J., and Mahan, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MAHAN, S.J.

         Arnold Grice appeals following the denial of his application for

postconviction relief (PCR).     Rather than challenge the merits of the claims

raised and rejected below, he alleges his PCR counsel was ineffective.

Specifically, he contends his PCR counsel breached a duty by failing to raise the

claim of ineffective assistance of trial counsel he now raises for the first time in

this appeal. We review ineffective-assistance claims de novo. State v. Maxwell,

743 N.W.2d 185, 195 (Iowa 2008).

         I. Background Facts and Proceedings.

         Grice was facing charges of third-degree sexual abuse, second-degree

sexual abuse, and distributing cocaine to a minor when the State dismissed the

charges three weeks before the speedy-trial deadline. Those charges were then

refiled along with two additional counts of third-degree sexual abuse and one

count of first-degree kidnapping.       Grice moved to dismiss the new trial

information, alleging the State was attempting to circumvent his right to a speedy

trial.   The trial court denied the motion after determining the State properly

dismissed and refiled the charges when a new witness was added.

         After the new charges were filed, the State made a plea offer to Grice: if

he pleaded guilty to one count of third-degree sexual abuse, the State agreed to

dismiss the remaining charges.       Grice refused the offer under the belief the

assistant county attorney who originally prosecuted his case had engaged in

prosecutorial misconduct by refiling the charges against him to add the

kidnapping charge. Based on prior dealings with that prosecutor, Grice believed

she had a personal vendetta against him. Grice also believed the ruling on his
                                           3


motion to dismiss would be reversed due to the prosecutor’s misconduct. At the

close of a bench trial, Grice was convicted of three counts of third-degree sexual

abuse and one count of delivery of cocaine to a minor. He was sentenced to ten

years in prison on each sexual-abuse conviction, to be served concurrently to

each other and consecutively to a twenty-five-year sentence on the delivery

conviction.1

       In April 2011, Grice initiated this PCR action. Through counsel, he alleged

his trial counsel was ineffective for failing to challenge “constitutionally deficient

trial information” and the county attorney “labored under two conflicts of interest”

and prosecuted him in violation of his due process rights. After interviewing the

attorney who represented Grice at trial,2 PCR counsel was unable to determine a

basis for an ineffective-assistance claim. She declined to subpoena trial counsel,

believing his testimony was not beneficial to Grice and therefore unnecessary.

PCR counsel informed the court of her opinion that trial counsel was not

ineffective, and Grice proceeded to argue his claims pro se with the assistance of

his PCR counsel.

       II. Ineffective Assistance of Counsel.

       Grice now contends his trial counsel failed to adequately counsel him with

regard to the plea offer. This claim has not been raised previously. However,

Grice alleges his PCR counsel was ineffective in failing to raise the claim in his

PCR action. A claim of ineffective assistance of PCR counsel may be raised in


1
  This court affirmed the convictions on direct appeal. State v. Grice, No. 08-0103, 2009
WL 606055, at *3 (Iowa Ct. App. Mar. 11, 2009).
2
  Grice was represented by three different attorneys during the course of the criminal
proceedings.
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the appeal from the denial of a PCR application. Dunbar v. State, 515 N.W.2d

12, 16 (Iowa 1994).

       We    cannot    determine    PCR     counsel’s    effectiveness   without   first

considering the merit of the underlying ineffective-assistance-of-trial-counsel

claim. See, generally, Ledezma v. State, 626 N.W.2d 134, 141–42 (Iowa 2001)

(stating that to prove ineffective assistance of appellate counsel, PCR applicant

must show the ineffective-assistance-of-trial-counsel claim would have prevailed

if raised on direct appeal). An ineffective-assistance claim is meritorious when it

is shown that counsel breached an essential duty and prejudiced resulted. See

Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012). A breach of duty occurs

when counsel performs below the standard of a “reasonably competent attorney”

as measured against the “prevailing professional norms.” Id. Here, Grice argues

his trial counsel had a duty to explain that the prosecutor was acting within the

scope of the law by filing the second trial information and the trial court’s ruling

on his motion to dismiss would stand. He intimates that being unaware of these

realities led him to reject a highly-favorable plea offer.

       We are unable to evaluate the strength of Grice’s underlying ineffective-

assistance claim in this appeal. The record does not disclose what counsel

explained to Grice regarding the State’s ability to refile charges or what Grice

understood. Trial counsel was never subpoenaed to testify. The State concedes

the record is undeveloped regarding the conversations between Grice and his

trial counsel. Because the record is not adequate to evaluate his claim, we
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preserve it for another PCR proceeding.3 See State v. Buchanan, 800 N.W.2d

743, 748 (Iowa 2011) (noting our preference to preserve ineffective-assistance-

of-counsel claims for PCR proceedings to allow an adequate record of the claim

to be developed).

       AFFIRMED.




3
  The State argues that even assuming counsel breached a duty, Grice cannot prove he
was prejudiced given statements he made about wanting to fight the charges. While the
State alleges those statements show Grice would not have accepted the plea offer
regardless, we note the statements would have been made while Grice held his beliefs
regarding prosecutorial misconduct and the merits of his motion to dismiss.
