                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-1549
                              Filed October 29, 2014

JEREMY WAYNE OTT,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Wapello County, Daniel P. Wilson,

Judge.



       Jeremy Ott appeals the district court’s decision denying his application for

postconviction relief. AFFIRMED.



       Julie DeVries of DeVries Law Office, P.L.C., Centerville, for appellant.

       Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney

General, Allen Cook, County Attorney, and Andrew J. Ritland, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., and Vogel and Bower, JJ.
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BOWER, J.

       Jeremy Ott appeals the district court’s ruling denying his application for

postconviction relief (PCR), claiming the court erred in ruling his defense counsel

did not render ineffective assistance. We affirm.

I. Background Facts and Proceedings

       Ott lived in Ottumwa. In July 2009 an Ottumwa convenience store was

robbed. In August 2009 Ott was charged with robbery in the first degree. Ott

was represented by an experienced defense attorney, John Silko, and Ott

demanded a speedy trial. Initially, Silko thought the State’s case against Ott was

weak based on: (1) seven alibi witnesses willing to testify Ott had been at a party

in Newton on the day of the Ottumwa robbery; (2) the lack of eyewitness

testimony identifying Ott as the robber; and (3) the lack of forensic evidence tying

Ott to the scene. Silko’s evaluation changed during trial when the State informed

him of evidence weakening the credibility of Ott’s alibi witnesses.

       The State’s case was initially based on: (1) a poor-quality surveillance

video insufficient to positively identify the robber but after Ott’s former girlfriend

viewed it, she believed the robber looked like Ott; (2) Ott owning and pawning a

gun with characteristics similar to the gun used in the robbery; (3) shortly after

the robbery, the police found a discarded shirt two blocks away matching the

description of the robber’s shirt; (4) after testing, the DNA on the discarded shirt

matched Ott’s DNA, and (5) Ott changing his stories about the shirt.1




1
 First, Ott denied the shirt was his and told the investigators he had a similar shirt but it
was in storage. Eventually, Ott admitted the discarded shirt was his.
                                         3



       During Ott’s trial, the prosecutor learned Ott had signed an affidavit of

personal service in Ottumwa on the day of the robbery.              The prosecutor

disclosed the new information to Silko and offered to let Ott plead guilty to

second-degree robbery. Silko discussed the plea offer and new information with

Ott. Ott rejected the plea offer, and the jury trial continued. In November 2009

the jury found Ott guilty as charged.

       Ott appealed his conviction, alleging his counsel was ineffective for failing

to object to an exhibit label used by the State. In January 2011 we affirmed the

conviction, ruling “even if counsel should have objected to the exhibit, Ott was

not prejudiced by its publication to the jury.” State v. Ott, No. 10-0167, 2011 WL

238435, at *1 (Iowa Ct. App. Jan. 20, 2011).

       In August 2011 Ott filed an application for postconviction relief (PCR). In

August 2013 Ott amended his application to include a claim his attorney provided

ineffective assistance of counsel by failing to solicit a plea offer from the State.2

At the hearing on Ott’s application, Silko, prosecutor Allen Cook, and Ott testified.

The PCR court denied Ott’s claim, stating: “The court questions where, as here,

a client demands speedy trial, adamantly maintains his actual innocence, and

expresses repeated unwillingness to accept any resolution other than dismissal

of the charges, a defense attorney would be charged with a duty to solicit a plea

agreement from the State.”      The court also denied Ott’s claim that counsel

improperly advised him to reject a plea offer the State made during trial.




2
 Ott alleged a second ground concerning a statement made by a State’s witness but no
evidence on that ground was presented at the postconviction trial.
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II. Standard of Review

         We review PCR proceedings for errors at law except for when the basis of

relief is constitutional, in which case our review is de novo. Harrington v. State,

659 N.W.2d 509, 519 (Iowa 2003).            An applicant’s claim his trial counsel

rendered ineffective assistance is reviewed de novo.         Ennega v. State, 812

N.W.2d 696, 701 (Iowa 2012).

         To   establish   an   ineffective-assistance-of-counsel   claim,   Ott   must

demonstrate, by a preponderance of the evidence, trial counsel failed to perform

an essential duty and the failure prejudiced him. See Strickland v. Washington,

466 U.S. 668, 687 (1984). We employ a strong presumption counsel performed

reasonably and competently. State v. Cook, 565 N.W.2d 611, 613-614 (Iowa

1997).

III. Ineffective Assistance—Failure to Solicit a Plea Offer and to

Communicate an Existing Plea Offer

         On appeal, Ott raises a failure-to-communicate claim.          He contends

Cook’s testimony at the PCR hearing shows the State made a plea offer prior to

trial and counsel failed to communicate the State’s plea offer to him.             Ott

contends he was unaware of this plea offer until Cook testified at the PCR

hearing. Ott faults the PCR court’s failure to make a specific credibility finding

“regarding the prosecutor” when the testimony of Silko and Cook “conflicted.”

See Tim O’Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996)

(“The district court has a better opportunity than we do to evaluate the credibility

of witnesses. So we think factual disputes depending heavily on such credibility
                                          5



are best resolved by the district court.”). Ott also claims the PCR court abused

its discretion in finding no pretrial plea offer was made.

         The State contends error is not preserved because Ott’s PCR application

only alleges defense counsel failed to solicit a plea offer from the State. We

assume error is preserved and address Ott’s challenges.

         A. The District Court’s Failure to Make a Specific Credibility Finding

Regarding the Prosecutor.          Contrary to Ott’s assertion, prosecutor Cook

testified “strictly off my memory” and did not testify an oral pretrial plea offer was

actually made but rather testified in generalities. Cook testified if the State had

made a plea offer, Cook “believe[d] that I would have made an offer of robbery in

the second [degree]. Again, I don’t necessarily have a specific recollection of

that.”   Cook reiterated he did not “have any specific recollection about the

negotiations prior to trial except that Mr. Silko was demanding a dismissal.”

Finally, Cook once again testified:

                A. . . . As I said, I don’t have a specific recollection of
         making an offer from the State. I believe that if I would have, it
         would have been robbery in the second [degree]. I do have a
         specific memory on more than one occasion of having a discussion
         with defense counsel in which he requested that the case be
         dismissed and that his client was proclaiming that he was innocent.
                Q.    Now prior to the commencement of trial, was it
         communicated to you that [Ott] was professing actual innocence of
         the charges? A. That’s certainly how I took it . . . . He proclaimed
         so far as I understood from Mr. Silko throughout that he was
         innocent and that he wasn’t going to be pleading to anything.
                Q. So it was your understanding [Ott] was unwilling to
         entertain a plea offer because it was his position he did not commit
         any crime versus that the State’s case was weak and [it] couldn’t
         prove that he committed the crime. Was that basically your
         understanding? A. Well, yeah. I think that was reinforced by his
         speedy-trial demand.
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(Emphasis added.)

         The above testimony shows the prosecutor could not recall whether or not

he had made a pretrial plea offer to Ott. In contrast, Silko testified unequivocally

(1) the State did not make a pretrial plea offer, and (2) Ott did not have a plea

offer to consider prior to trial. Thus, Cook’s testimony to the generalities of his

prosecutorial practices on plea offers does not contradict Silko’s testimony the

State did not make a pretrial plea offer in this specific case.       Under these

circumstances, the PCR court was not called upon to make a specific credibility

determination of Silko vis-a-vis Cook before it implicitly found Silko’s testimony

credible by ruling: “Mr. Silko discussed the possibility of a plea agreement with

Ott prior to trial, but Ott continued to maintain his innocence and was unwavering

in his belief that the charge against him should be dismissed. The State did not

make Ott a plea offer prior to trial.”

         Ott cites no cases requiring a district court to make specific credibility

findings of all witnesses who testify at a PCR hearing. This claim is without

merit. Counsel obviously has no duty to communicate a nonexistent pretrial plea

offer.

         B. Sufficiency of the Evidence. Ott also claims the court did not have

sufficient evidence to make an ineffective-assistance-of-counsel ruling—“when

testimonies conflicted, the lower court did not have sufficient evidence to

conclude by a preponderance of the evidence that an offer was not made to [Ott]

prior to trial. Instead, the prosecutor’s testimony was credible evidence to show

an offer was made.” Ott concludes: “As a result, the lower court ruled in error,
                                          7



and remand is required for a conclusion supported by sufficient, credible

evidence.”

       Because we review ineffective-assistance claims de novo, we do not

utilize a “sufficiency of the evidence” standard. But, as discussed in section “A.”

above, Ott’s premise—“when testimonies conflicted” is a false premise. After our

de novo review of the record, we conclude Ott failed to show his trial counsel had

a duty to solicit a plea agreement from the State. Further, even assuming Ott

could show such a duty, he has failed to show prejudice.

III. Ineffective Assistance—Plea Offer at Trial

       Ott also alleges trial counsel was ineffective in failing to properly advise

him regarding a plea offer made by the State during trial. Ott fails to identify any

specific deficiency in counsel’s performance. In fact, in response to the question,

“Do you have any specific complaint with the advice he gave you?” Ott testified,

“I have no idea.”

       Further, Ott’s PCR testimony is inconsistent. Ott initially testified counsel

advised him to reject the plea offer and there was no discussion about the

advantages and disadvantages of accepting the offer.            However, on cross-

examination, Ott testified it was possible counsel discussed the benefits and

disadvantages of accepting the offer.         The only evidence showing counsel

improperly advised Ott was Ott’s testimony. Silko testified to the discussion he

had with Ott about the mid-trial plea offer. After our de novo review, we agree

with the PCR court’s finding that Silko advised Ott at trial:

       Mr. Silko advised Ott of the consequences of accepting the plea
       agreement, the differences in punishment between first and second
                                        8



       degree robbery, warned Ott that the affidavit of personal service
       likely weakened his alibi defense, and discussed general risks
       attendant with any jury trial. Mr. Silko has been practicing law for
       approximately forty-two years, is experienced in defending criminal
       cases, and is knowledgeable in the area of criminal law. His
       testimony is credible.

Accordingly, we conclude Ott has failed to show his trial counsel was ineffective

in this regard.

       AFFIRMED.
