                    IN THE COURT OF APPEALS OF IOWA

                                    No. 16-0249
                               Filed February 7, 2018


THOMAS G. RUTHERS JR.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Mahaska County, Myron L. Gookin,

Judge.



      Thomas Ruthers Jr. appeals his conviction for assault causing bodily

injury. AFFIRMED.




      R.E. Breckenridge of Breckenridge Law P.C., Ottumwa, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.




      Heard by Vogel, P.J., and Tabor and Bower, JJ.
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BOWER, Judge.

      Thomas Ruthers Jr. appeals his conviction for assault causing bodily

injury. We find neither trial nor appellate counsel were ineffective. We also find

Ruthers cannot challenge whether the plea was proper at this stage in the

proceedings. Finally, we find the postconviction court did not abuse its discretion

by refusing to take additional evidence after the record was closed. We affirm.

   I. Background Facts and Proceedings

      Thomas Ruthers Jr. has a long history of molesting children. In 2007 he

was accused of molesting R.S., an eight year old, in Mahaska County. Ruthers

was charged with sexual abuse in the second degree in violation of Iowa Code

sections 709.01 and 709.3(2) (2006). The charged was enhanced due to a prior

conviction of sexual abuse in the first degree in West Virginia. The minutes of

evidence showed R.S. would testify that prior to the molestation, Ruthers “threw

him on the bed” and R.S. “hit his head on the board and had a bump.”

      Ruthers’s primary defense attorney, Kenneth Duker, sought advice from

the state public defender on how to structure a plea bargain to avoid Ruthers’s

commitment as a sexually violent predator. Duker was informed that even a

nonsexual offense was grounds for commitment if the offense was sexually

motivated.

      The State offered Ruthers a plea to assault with intent to commit sexual

abuse. Ruthers stated he would not plead to any offense that was sexual in

nature.   The State eventually offered a plea to assault causing bodily injury,

which the State understood to be factually supported by Ruthers throwing R.S.
                                            3


onto the bed. Ruthers agreed, and on March 19 filed a written guilty plea. On

the written plea, Ruthers and his counsel purposefully replaced R.S.’s full name

with B.S.’s, the child’s mother. The factual basis for the guilty plea was stated

as: “I did assault [B.S] and in doing so caused a bodily injury.” Ruthers also

handwrote: “sex abuse 2nd degree to be dismissed with prejudice.” Neither the

State nor the district court read the written plea closely enough to notice the

substitution. Ruthers’s guilty plea was accepted, and he was sentenced to one

year in jail with credit for time served.

       Earlier in the day, the State served Ruthers with a petition seeking to

confine him as a sexually violent predator, pursuant to Iowa Code section 229A.

While pursuing the 229A action, the State discovered the substitution of names

and filed a motion to set aside the written guilty plea, judgment, and sentence on

March 22. The State asked the matter be re-set for trial, and Ruthers resisted. A

hearing was held before the district court on March 26. The district court denied

the State’s motion to set aside the guilty plea and instead informed the parties it

would change the factual basis to the plea. The written plea stipulated that the

district court need not rely on the defendant’s factual basis but could rely on the

minutes of evidence instead.1

       Ruthers filed a notice of appeal on April 18 and was assigned Dennis

Hendrickson from the state appellate defender’s office.                Ruthers asked

Hendrickson to raise several specific issues, but Hendrickson refused. Ruthers

was informed he could write a pro se brief raising those issues himself, but he

1
  Ruthers is unable to challenge the district court’s change in factual basis. The proper
forum for such a challenge was a direct appeal, which Ruthers ultimately voluntarily
dismissed.
                                           4


declined. Hendrickson then informed Ruthers that the outcome of a successful

appeal would be returning to the trial stage of proceedings where he would

potentially be facing life in prison. Ruthers voluntarily and in writing withdrew his

appeal on April 19, 2013.

          On November 10, 2014, Ruthers filed an application for postconviction

relief.    Trial was held August 12, 2015, and Ruthers represented himself.

Ruthers subpoenaed his trial counsel, Duker, but he was released by Ruthers

shortly before trial commenced.       The district court summarized the basis for

Ruthers’s claims as, “[H]e pled guilty to a different crime than the crime on which

judgment was entered.”        Ruthers alleged ineffective assistance of trial and

appellate counsel and “numerous claims for relief.” The postconviction court

found Ruthers had no valid claim for postconviction relief. Ruthers now appeals.

    II. Standard of Review

          “The standard of review on appeal from the denial of postconviction relief

is for errors at law.” McLaughlin v. State, 533 N.W.2d 546, 547 (Iowa 1995).

However, “[w]hen there is an alleged denial of constitutional rights, . . . we make

our own evaluation of the totality of the circumstances in a de novo review.” Id.

Claims of ineffective assistance of counsel are reviewed de novo. Ledezma v.

State, 626 N.W.2d 134, 141 (Iowa 2001). “To prevail on a claim of ineffective

assistance of counsel, the [defendant] must demonstrate both ineffective

assistance and prejudice.” Id. at 142. “If the claim lacks prejudice, it can be

decided on that ground alone without deciding whether the attorney performed
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deficiently.”   Id.   Both elements must be proved by a preponderance of the

evidence. Jones v. State, 479 N.W.2d 265, 272 (Iowa 1991).

   III. Ineffective Assistance of Trial Counsel

         Ruthers claims trial counsel was ineffective for failing to advise him of the

plea’s legality plea, failing to advise him of the plea’s collateral consequences,

and allowing him to plead guilty, when his plea was not supported by a factual

basis.     He further claims the ineffective assistance was so widespread it

constitutes structural error.

            a. Lack of Factual Basis

         “Where a factual basis for a charge does not exist, and trial counsel allows

the defendant to plead guilty anyway, counsel has failed to perform an essential

duty. Prejudice in such a case is inherent.” State v. Schminkey, 597 N.W.2d

785, 788 (Iowa 1999) (citations omitted). When “evaluating whether a factual

basis exists to support a guilty plea, we may examine ‘the minutes of [evidence],

statements made by the defendant and the prosecutor at the guilty plea

proceeding, and the presentence investigation report.’”          State v. Velez, 829

N.W.2d 572, 576 (Iowa 2013) (citations omitted). Additionally, our supreme court

has held “[t]he defendant’s admission on the record of the fact supporting an

element of an offense is sufficient to provide a factual basis for that element.”

State v. Philo, 697 N.W.2d 481, 486 (Iowa 2005) (citation omitted).

            b. Ineffective Assistance

         In order to prove prejudice resulting after a guilty plea, Ruthers is required

to prove “but for counsel’s errors, he would not have pleaded guilty and would
                                          6

have insisted on going to trial.”      Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Additionally, our supreme court has previously held conclusory claims that a

defendant would have insisted on going to trial are insufficient. See State v.

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

       In its ruling, the postconviction court made explicit and detailed credibility

findings, stating:

              There is absolutely no support in the record for [Ruthers’s
       claims] other than [his] testimony. The only person that could have
       confirmed such a change in the factual basis is Mr. Duker.
       Interestingly, [Ruthers] had subpoenaed Mr. Duker as a witness on
       his behalf at trial but at the last minute, as trial commenced,
       informed the court he was releasing Mr. Duker from the subpoena
       and Mr. Duker was allowed to leave the courthouse.
              ....
              The Court has considered all of the evidence and given it
       such weight as it deems appropriate considering the nature,
       credibility and extent of such evidence. The Court has also
       carefully observed the witnesses at trial and factored such
       observations into assessing the credibility of each witness and the
       weight to be given to their testimony. On the record made, and in
       consideration of the above credibility factors, the Court finds the
       [Ruthers’s] version of factual matters in dispute to be generally
       unbelievable and unworthy of credible consideration.

       The only evidence Ruthers is able to provide to indicate he would have

pursued a trial is his own conclusory statement. His decisions throughout the life

of the case and his direct appeal indicate trial was not an option he wished to

pursue. He was offered and accepted a plea, resisted the State’s motion to

return the case to the trial stage, and voluntarily dismissed his direct appeal

when he was informed by counsel it would, at best, return him to trial to face life

in prison. The alternative to a plea was facing trial against strong evidence with

the possibility of a life sentence without parole.
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         In light of the credibility findings of the postconviction court, the lack of

evidentiary support for Ruthers’s claims, and his decisions throughout the trial

process, we find Ruthers is unable to prove prejudice.

            c. Structural Error

         Ruthers also claims trial counsel’s performance and advice were so

ineffective it qualifies as structural error. “We have recognized structural error

occurs     when . . . surrounding    circumstances     justify   a    presumption   of

ineffectiveness, such as where counsel has an actual conflict of interest in jointly

representing multiple defendants.”      State v. Feregrino, 756 N.W.2d 700, 707

(Iowa 2008) (citing United States v. Cronic, 466 U.S.648, 659 (1984)). Ruthers

again claims trial counsel’s representation was ineffective for the reasons stated

above. The structural-error claim also alleges trial counsel’s representation was

unethical and should therefore be presumed ineffective.              However, even if

counsel’s representation was unethical, a “breach of an ethical standard does not

necessarily make out a denial of the Sixth Amendment guarantee of assistance

of counsel.” Nix v. Whiteside, 475 U.S. 157, 165 (1986).

         Ruthers rests the claim of structural error on the argument, “The prejudice

of [trial counsel’s] actions is clear. His actions caused the State to seek to vacate

the plea and go to trial on the original charge.” We disagree. The prejudice of

these actions is anything but clear.        Through the deliberate substitution of

victims, Ruthers had an opportunity to escape further punishment, although the

plea was to a charge for which there was no factual basis. Ruthers claims trial

counsel’s actions caused the State to seek to vacate the plea and pursue trial,
                                         8


however, the State was not successful.               The zealous, yet somewhat

questionable, actions based on this record belie Ruthers’s claims of ineffective

assistance. We find there was no structural error.

       We must also address Ruthers’s actions of adding to the written plea that

the more serious charge would be dismissed with prejudice. This action shows

us Ruthers’s actions are not a result of seeking justice for himself but are acts

committing a fraud upon the court.

   IV. Ineffective Assistance of Appellate Counsel

       Ruthers further claims appellate counsel was ineffective by refusing to

raise issues Ruthers suggested.       “Strategic decisions made after ‘thorough

investigation of law and facts relevant to plausible options are virtually

unchallengeable.’”    Ledezma, 626 N.W.2d at 143 (quoting Strickland v.

Washington, 466 U.S. 668, 687 (1984)).         Our supreme court has previously

found “it is a tactical blunder, often devastating to an appellant, to assign every

conceivable complaint.     Highly competent appellate lawyers generally assign

only the strongest points and rely on them for reversal.” Cuevas v. State, 415

N.W.2d 630, 633 (Iowa 1987). Additionally, Ruthers was informed he was free to

submit a pro se brief in his direct appeal, as he has in this appeal, but he refused.

We find appellate counsel was effective.

   V. Unraised Appellate Issues in the Postconviction Court

       The postconviction court stated “the only possible basis for postconviction

relief is ineffective assistance of counsel” as Ruthers voluntarily dismissed his

direct appeal. Ruthers claims the postconviction court was required to review the
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arguments appellate counsel refused to include in his brief and determine if those

arguments had merit. He further claims, if those arguments had merit, appellate

counsel’s refusal to bring those claims indicates ineffective assistance. Appellate

counsel was exercising professional discretion appropriately in selecting claims

to pursue on appeal. See Cuevas, 415 N.W.2d at 633. Appellate counsel was

not ineffective.

   VI. Pro Se Claims

       Ruthers submitted a separate pro se brief alleging several additional

claims.   The claims alleged are all reviewed under an abuse of discretion

standard. “No abuse of discretion will be found unless the defendant shows that

such discretion was exercised on grounds or for reasons clearly untenable or to

an extent clearly unreasonable.” State v. Millsap, 547 N.W.2d 8, 10 (Iowa Ct.

App. 1996) (citing State v. Cason, 532 N.W.2d 755, 756 (Iowa 1995)).

           a. Chapter 229A Proceeding

       Ruthers claims he was not presently confined at the time of the

adjudication and had not committed a recent overt act, and, therefore, the district

court erred in allowing his commitment. We find Ruthers must raise this claim in

a 229A proceeding, which is a separate action not the subject of this appeal.

           b. Improper Plea

       Ruthers’s next claims the postconviction court abused its discretion by

finding the trial court accepted the guilty plea based on R.S. being the victim.

Because Ruthers dismissed his direct appeal, we are unable to review the trial

court’s change of the factual basis. Ruthers may not now attempt to relitigate
                                          10


this issue. Ruthers also claims the postconviction court abused its discretion by

failing to find the plea, as written, was enforceable. Again, Ruthers is unable to

raise this issue. Ruthers’s direct appeal was the proper opportunity to challenge

the enforceability of the written plea.

       Additionally, Ruthers claims the postconviction court abused its discretion

by ruling his “outcome was the same whether the factual basis of the crime

named R.S. or B.S. as the victim.” Assuming this is an attempt to show there

was a reasonable probability he would have faced trial rather than enter a guilty

plea, the only reading to allow this claim to be reviewed, requires us to find the

postconviction court did not abuse its discretion. The court correctly stated, “the

Applicant got what he wanted: a serious misdemeanor conviction; a one-year jail

sentence with full time served; and no risk of facing trial on a class “B” felony with

sentencing enhancements.” A self-serving, conclusory statement he desired to

stand trial is not enough to show prejudice. See Myers, 653 N.W.2d at 579.

          c. Additional Evidence

       Finally, Ruthers claims the district court abused its discretion by refusing

to allow him to submit evidence after the close of the record. The State claims

Ruthers did not preserve error on this issue as he did not request the

postconviction court reopen the record to receive evidence. In order to preserve

an issue for appellate review, it must first be raised and ruled on by the trial court.

Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Ruthers did not request

the postconviction court reopen the record to accept the evidence, and therefore,

error was not preserved as the court did not have the opportunity to rule on the
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issue. Ruthers is not entitled to deferential treatment simply because he is a pro

se litigant. See Kubik v. Burk, 540 N.W. 60, 63 (Iowa Ct. App. 1995) (rejecting

the pro se litigant’s argument his failure to comply with statutory requirements

should be excused as he was untrained in the law). The law holds attorneys and

lay persons to the same standard. Id. We affirm.

      AFFIRMED.
