                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0225
                               Filed July 1, 2020


GATLUAK CHUOL BOL,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, James A. McGlynn,

Judge.



      Gatluak Bol appeals the dismissal of his postconviction-relief application.

AFFIRMED.



      Christine E. Branstad of Branstad & Olson Law Office, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.



      Considered by Vaitheswaran, P.J., Doyle and May, JJ.
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MAY, Judge.

       Gatluak Bol appeals the dismissal of his postconviction-relief (PCR)

application. We affirm.

       On November 14, 2014, Bol was escorted from his workplace by police

officers and taken in for questioning. He testified that he was read his Miranda

rights, questioned without an attorney present, provided a DNA sample, and was

released later that day. No charges were filed until October 2015. Ultimately, Bol

was convicted of third-degree sexual abuse, in violation of Iowa Code sections

709.1, 709.4(1), and 702.17 (2014), and assault with intent to commit sexual

abuse, in violation of Iowa Code sections 709.11 and 708.1.

       Bol appealed his convictions. See State v. Bol, No. 16-0370, 2017 WL

936110, at *1 (Iowa Ct. App. Mar. 8, 2017). This court affirmed. Id. at *5.

       In August 2017, Bol filed this PCR application.         Bol alleged multiple

ineffective-assistance claims. The PCR court rejected all his claims. Bol now

appeals.

       Bol raises four of his ineffective-assistance claims on appeal: (1) trial

counsel failed to argue Bol’s speedy-indictment rights were violated, (2) trial

counsel failed to “appropriately advise and inform Bol about consequences of

testifying at trial,” (3) trial counsel failed to “recognize conflict of interest and

withdraw,” and (4) trial counsel failed to “assert and remedy disparity in the jury

panel.”

       “We normally review postconviction proceedings for errors at law.” Castro

v. State, 795 N.W.2d 789, 792 (Iowa 2011). But when there are ineffective-

assistance-of-counsel claims, our review is de novo. Id. “In conducting our de
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novo review, ‘we give weight to the lower court’s findings concerning witness

credibility.’” King v. State, 797 N.W.2d 565, 571 (Iowa 2011) (quoting Ledezma v.

State, 626 N.W.2d 134, 141 (Iowa 2001)).

       To prevail on an ineffective-assistance-of-counsel claim, Bol “must

demonstrate ‘(1) his trial counsel failed to perform an essential duty, and (2) this

failure resulted in prejudice.’” Lado v. State, 804 N.W.2d 248, 251 (Iowa 2011)

(quoting State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)). And he “must prove

both elements by a preponderance of the evidence.” Id. “Under the first prong,

‘we measure counsel’s performance against the standard of a reasonably

competent practitioner.’” Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015)

(citation omitted).   “It is presumed the attorney performed his or her duties

competently, and a claimant must successfully rebut this presumption by

establishing by a preponderance of the evidence counsel failed to perform an

essential duty.” Id. And to establish prejudice, under the second prong, Bol must

prove “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. (quoting Bowman v. State,

710 N.W.2d 200, 203 (Iowa 2006)).

       As a preliminary matter, Bol asserts the PCR court wrongly determined all

of his claims were precluded under Iowa Code section 822.8. We agree they are

not precluded. See Iowa Code § 814.7 (noting an ineffective-assistance claim

“need not be raised on direct appeal from the criminal proceedings in order to

preserve the claim for postconviction relief purposes”); State v. Straw, 709 N.W.2d

128, 133 (Iowa 2006).     Therefore, we turn to the merits of each ineffective-

assistance claim.
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       Bol first asserts counsel was ineffective for failing to file a motion to dismiss

due to a speedy-indictment violation. He contends State v. Wing, 791 N.W.2d 243

(Iowa 2010), is the controlling law because it was in effect at the time of his

conviction.   According to Wing, we determine whether an arrest occurred by

considering “whether a reasonable person in the defendant’s position would have

believed an arrest occurred.” 791 N.W.2d at 249. But Wing was overruled by

State v. Williams, 895 N.W.2d 856, 867 (Iowa 2017). And the Williams court “did

not declare a prospective-only application.” State v. Dormire, No. 16-1474, 2018

WL 2085199, at *2 (Iowa Ct. App. May 2, 2018) (“As of yet, the supreme court has

not addressed how the Williams holding should be applied.”). So “[w]ithout a

statement that the decision is to operate prospectively only, we will apply Williams

retroactively.” Id. We continue the analysis with Williams—not Wing—as the

controlling law.

       Under the speedy-indictment rule, “[w]hen an adult is arrested for the

commission of a public offense . . . and an indictment is not found against the

defendant within 45 days, the court must order the prosecution to be dismissed.”

Iowa R. Crim. P. 2.33(2)(a). In Williams, our supreme court held:

       Arrest for the purposes of the speedy indictment rule requires the
       person to be taken into custody in the manner authorized by law.
       The manner of arrest includes taking the arrested person to a
       magistrate. The rule is triggered from the time a person is taken into
       custody, but only when the arrest is completed by taking the person
       before a magistrate for an initial appearance.

895 N.W.2d at 867. Bol states he was never brought before a magistrate. So we

find he was not arrested under Williams. See id. And so the speedy-indictment

rule was not triggered. See id. This ineffective-assistance claim fails.
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       Next, Bol contends counsel was ineffective for failing to adequately advise

him on his Fifth Amendment rights. He asserts “trial counsel called Bol to testify

in his own defense without any discussion on the record regarding the right to

testify and Bol’s right to waive testifying if he so chose.”

       “A defendant has a constitutional right to testify at a criminal trial.”

Ledezma, 626 N.W.2d at 146.          But the defendant may waive that right.         Id.

“Counsel has a duty to advise the defendant about the consequences of testifying

so that an informed decision can be made.” Id. at 146–47. “Generally, the advice

provided by counsel is a matter of trial strategy and will not support a claim of

ineffective assistance absent exceptional circumstances.” Id. at 147.

       At the PCR hearing, Bol’s trial counsel testified as follows:

       I told him of course he has the complete right not to testify. Also he
       has the total right to testify if he chooses to and that it’s his decision.
       I always tell my clients that. But we also talk strategy. We don’t have
       that conversation in a vacuum and in this case our theme was going
       to be consensual sex. And I encouraged Mr. Bol that if he wants to
       make that argument, that he’s going to—the jury’s going to expect to
       hear that from him.
               In my view, in many cases the defendant does a disservice if
       they don’t testify. You know, if they’re claiming a particular line of
       defense other than a general denial and so I would never have told
       Mr. Bol you have to testify. . . . . But I have no doubt I told him for
       our defense, testifying is something that he needs to seriously
       consider.

       The PCR court implicitly found counsel’s testimony to be credible. And we

give appropriate deference to that finding. See, e.g., Bear v. Bear, No. 02-0518,

2003 WL 289513, at *1 (Iowa Ct. App. Feb. 12, 2003). Like the PCR court, we

conclude counsel informed Bol of his rights and provided advice in the form of a

reasonable trial strategy.    Bol has not overcome the strong presumption that

counsel performed competently. See Dempsey, 860 N.W.2d at 868.
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       We have considered Bol’s complaints that counsel did not advise him of

certain negative consequences of testifying, including the possibility “[n]obody

would believe” him because the jury lacked diversity. But we see no reasonable

probability that, if Bol had chosen not to testify, there could have been a different

ultimate result. The physical evidence established Bol had sexual contact with the

alleged victim. And the alleged victim testified Bol raped her. So if Bol had not

testified, the jury would never have heard any alternative explanation for the sexual

contact. As in Ledezma, if Bol had not testified, he would have “lost his opportunity

to present his side of the story in a case which essentially came down to the

credibility of one of two stories.”    626 N.W.2d at 148 (finding counsel was

ineffective in advising client not to testify). We agree with the State that “not

testifying could not have improved” Bol’s chances of acquittal. So this claim also

fails. See, e.g., Rumley v. State, No. 12-1724, 2014 WL 635970, at *3 (Iowa Ct.

App. Feb. 19, 2014) (affirming denial of PCR relief where applicant failed to show

“that even if he had made the decision not to testify at his criminal trial, a

reasonable probability exists that the result of the proceeding would have been

different”).

       Bol also alleges counsel was ineffective because of a conflict of interest.

Trial counsel had previously represented one of the witnesses—a police officer—

in a family-law matter. The representation had ended, trial counsel discussed the

issue with Bol and the witness, and both signed waivers. Still Bol argues a conflict

of interest can never be waived.

       On this record, we question whether there was a conflict of interest because

(1) counsel’s representation of the witness had ended before he began
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representing Bol and (2) it does not appear counsel’s past representation of the

witness—in    an   unrelated      family-law matter—materially limited      counsel’s

representation of Bol. See State v. McKinley, 860 N.W.2d 874, 882 (Iowa 2015).

Even if there was a conflict, Bol was certainly able to and, in fact, did waive the

conflict. Iowa Rule of Professional Conduct 32:1.7(b)(4) allows an attorney to

represent a client if “each affected client gives informed consent, confirmed in

writing.” That is what happened here. Bol and the witness both signed documents

entitled “Waiver of Conflict Interest.” The signed documents provided each waived

“any and all conflict or conflicts” and authorized trial counsel to represent Bol. And

Bol provides no reason to believe the waivers were insufficient. So this ineffective-

assistance claim fails as well.

       Finally, Bol asserts counsel was ineffective for failing to “assert and remedy

disparity in the jury panel.” Bol’s argument centers around our supreme court’s

decision in State v. Plain, 898 N.W.2d 801, 821–29 (Iowa 2017). But Plain does

not apply retroactively. See Thongvanh v. State, 938 N.W.2d 2, 15–16 (Iowa 2020)

(noting Plain does not “apply retroactively to convictions that were already final at

the time” Plain was decided and finding “[t]he district court did not error in

concluding Thongvanh could not rely on Plain as the basis for his current PCR

application”). And Bol’s conviction occurred before Plain. So Bol cannot rely on

it. We determine this final ineffective-assistance claim fails.

       We affirm the dismissal of Bol’s PCR application.

       AFFIRMED.
