                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1863
                              Filed March 22, 2017


DARRYL TYSON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly,

Judge.



      Darryl Tyson appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Philip B. Mears of Mears Law Office, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VAITHESWARAN, Judge.

        Darryl Tyson pled guilty to first-degree burglary, second-degree robbery,

third-degree sexual abuse, and second-degree theft.             The district court

sentenced him to prison terms not exceeding twenty-five years, ten years, ten

years, and five years respectively and ordered them to run consecutively, for a

total of fifty years.

        Tyson filed an application for postconviction relief. He claimed his trial

attorney was ineffective in failing “to advise [him] that the consecutive sentences

were a possibility if he pled guilty” and was ineffective in investigating his case.

The district court denied the application following an evidentiary hearing.

        On appeal, Tyson contends (1) his “guilty plea was constitutionally

deficient” because he “did not understand that he was pleading to consecutive

sentences totaling 50 years” and (2) “there was ineffective assistance of

postconviction counsel in the presentation of this claim.”

I.      Understanding of Consecutive Sentences

        Tyson asserts the district court “did not warn” him that his “sentences

could be run consecutively” and “never asked” him if he understood the meaning

of “consecutive.” In his view, these omissions rendered his guilty plea unknowing

and unintelligent.

        Tyson concedes he failed to file a motion in arrest of judgment challenging

this aspect of his plea despite receiving correct advice on the consequences of

failing to do so, but he asserts we may review the issue under an ineffective-

assistance-of counsel rubric. We agree. To succeed, Tyson must establish (1)
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his trial “counsel’s performance was deficient” and (2) prejudice resulted.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

       Tyson cannot establish deficient performance.             During the plea

proceeding, the prosecutor summarized the plea agreement, including the prison

terms he faced on each charge.        The prosecutor ended with the statement,

“These sentences are to run consecutively and not concurrently, for a total

indeterminate sentence of not to exceed 50 years.” The district court reiterated

the range of punishment for each charge and elicited a response from Tyson that

he understood the range. See Iowa Code § 2.8(2)(b)(2) (2015) (requiring the

court to inform a defendant of “[t]he mandatory minimum punishment, if any, and

the maximum possible punishment provided by the statute defining the offense to

which the plea is offered”). Although the court did not elaborate on the distinction

between consecutive and concurrent sentencing, the meaning was clear: one

could only reach fifty years if the sentences on the respective counts were run in

succession.

       State v. White, 587 N.W.2d 240, 243 (Iowa 1998), cited by Tyson, does

not alter our conclusion. There, the defendant pled guilty without receiving any

advice about consecutive sentences from “any . . . source,” including “the judge

or defendant’s lawyer.” White, 587 N.W.2d at 241, 243. The supreme court

reversed the plea after emphasizing that “[n]o information from any source

indicated to the defendant in any way that his maximum possible punishment

was twenty years of imprisonment as a result of sentences imposed to be served

consecutively.” Id. at 243. Tyson, in contrast, was informed that he faced up to

fifty years in prison. See State v. Tiegen, No. 09-0465, 2009 WL 3380065, at *2
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(Iowa Ct. App. Oct. 21, 2009) (distinguishing White on the ground “the written

pleas of guilty show [the defendant] was aware that any terms of incarceration

might be imposed to run consecutively, and that his claim his pleas were not

knowing and voluntary is thus without merit”).       In light of the prosecutor’s

discussion of consecutive sentencing, we conclude Tyson’s attorney did not

breach an essential duty in failing to challenge the plea as unknowing and

involuntary.

         We also are persuaded Tyson was not prejudiced by the omission. See

Castro v. State, 795 N.W.2d 789, 793 (Iowa 2011) (“The component of the claim

involving the voluntariness of the plea is largely tied to the prejudice element of

all ineffective-assistance-of-counsel claims.     This element means criminal

defendants who seek postconviction relief after pleading guilty must establish the

guilty plea would not have been entered but for the breach of duty by counsel.”

(citation omitted)). Tyson’s plea attorney testified Tyson realized an advantage in

pleading guilty because three of the original charges were class “B” forcible

felonies requiring a prison sentence not exceeding twenty-five years each and

two of them also carried an eighty-five percent mandatory minimum term. The

attorney stated, if Tyson had proceeded to trial and been convicted, he “was very

much at risk of having at least one, if not more of the sentences ordered to be

served consecutively.” The plea removed the mandatory minimum sentence on

one count and reduced the mandatory minimum sentence on another count to

eighty-five percent of ten years rather than eighty-five percent of twenty-five

years.
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       Having found no breach and no prejudice, we affirm the district court’s

denial of this ineffective-assistance-of-counsel claim.

II.    Claimed Ineffectiveness of Postconviction Counsel

       Tyson contends his postconviction attorney was ineffective in failing to

develop a record on trial counsel’s claimed ineffectiveness in not (1) investigating

an alibi defense, (2) challenging DNA testing, and (3) looking into whether street

cameras would have rebutted certain damaging evidence.             On our de novo

review, we disagree.

       Postconviction counsel elicited testimony from Tyson on all these claimed

omissions. While Tyson now asserts counsel should have done more, counsel

reasonably could have determined less was more. Specifically, the minutes of

testimony disclosed that several members of Tyson’s family would refute his alibi

defense. Counsel would have been remiss in calling them as witnesses. As for

the DNA evidence, the minutes disclosed that known samples were compared

with a national database.       Although Tyson questioned the validity of the

information in the database, the minutes revealed that an officer also collected a

sample from Tyson when he was questioned about the crime. This sample was

sent to the department of criminal investigation for comparison purposes. Again,

postconviction counsel risked ratifying the State’s proposed evidence had he

called a DNA expert to opine on the State’s DNA evidence. Finally, with respect

to the camera surveillance, Tyson admitted he did not ask his attorney to check if

there was surveillance or to question the witness who identified him in a key

vehicle. His attorney testified he did not “recall [looking into] anything like that.”

We presume counsel performed competently and “avoid second-guessing and
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hindsight.”    State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011) (citation

omitted). On our de novo review, we are persuaded postconviction counsel did

not breach an essential duty in failing to develop a record on trial counsel’s

claimed failures.

       We affirm the district court’s denial of Tyson’s postconviction relief

application.

       AFFIRMED.
