                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0182
                               Filed April 17, 2019


THOMAS DUANE MORRIS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Henry County, Mark Kruse, Judge.



      An applicant convicted of second-degree theft appeals the denial of his

application for postconviction relief. AFFIRMED.



      Jeffrey L. Powell of Powell and McCullough, PLC, Coralville, for appellant.

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

General, for appellee State.



      Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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TABOR, Judge.

       The Henry County Attorney charged Thomas Morris with stealing three

cars, burglarizing two other cars, and taking a navigation system during the

summer of 2014. After his public defender negotiated a plea agreement, Morris

pleaded guilty to one count of theft in the second degree. Represented by retained

counsel at sentencing, Morris received an indeterminate five-year suspended

prison term. He did not file a direct appeal. But after the district court revoked his

probation in 2015, Morris filed an application for postconviction relief (PCR),

challenging counsel’s performance. The district court denied relief. Morris appeals

that denial, alleging he was prejudiced by “two separate attorneys’ failure to follow

his wishes regarding withdrawal of his guilty plea.”

       Because Morris fails to meet his burden to show a breach of duty by his

attorneys in the guilty-plea process, we affirm the PCR denial.

I.     Facts and Prior Proceedings

       At his plea hearing in November 2014, Morris admitted taking possession

of a 2000 Ford Contour, valued at more than $1000 but not more than $10,000,

with the intent to permanently deprive the owner of that vehicle. His plea to one

count of second-degree theft was part of a comprehensive bargain. In exchange

for his guilty plea, the parties agreed to a five-year prison sentence and the

dismissal of two additional second-degree theft counts, one fourth-degree theft

count, and two counts of third-degree burglary. The State also agreed to dismiss

an unrelated felony drug charge.

       Before sentencing, Morris retained attorney Frank Santiago, and his public

defender, Djalal Arbabha, withdrew. Notwithstanding terms of the plea agreement,
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at the January 2015 hearing, attorney Santiago urged the district court to grant

Morris a suspended sentence.          The court asked if Morris understood the

“ramifications” of not abiding by the plea deal. The defense confirmed the State

would go forward with prosecuting the felony drug charge but would still dismiss

the remaining counts. The district court imposed a prison term not to exceed five

years, suspended the sentence, and placed Morris on probation for five years.

Morris did not appeal the conviction or sentence.

       In June 2015, Morris’s probation officer filed a report alleging several

violations, including possession of contraband and commission of theft. Based on

that report, the district court revoked Morris’s probation and imposed the previously

suspended five-year sentence.

       In February 2016, Morris filed a PCR application, which alleged counsel

was ineffective for failing to file a motion in arrest of judgment challenging the

factual basis for Morris’s guilty plea to second-degree theft. During the district

court’s hearing on the application, Morris testified by deposition, and both attorney

Arbabha and attorney Santiago testified in person. Morris alleged he didn’t fully

understand the elements of the theft charge. Morris testified before he hired

attorney Santiago, he asked attorney Arbabha to move to withdraw the guilty plea.

Morris maintained Arbabha said he would draft a motion but failed to follow

through. Attorney Arbabha testified if Morris had insisted on filing a motion in arrest

of judgment to challenge the guilty plea, he would have done so. Attorney Santiago

likewise testified Morris did not express an interest in filing a motion in arrest of

judgment before sentencing.
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       In rejecting the PCR application, the district court found Morris’s testimony

to be unbelievable.    The court concluded Morris’s claim “two lawyers simply

ignored a request to file the motion or otherwise [was] unsupported by sufficient

evidence.” Morris now appeals the denial of his PCR application.

II.    Scope and Standards of Review

       We generally review PCR proceedings for correction of legal error.

Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). But when the application

alleges ineffective assistance of counsel, we review the issues de novo. Allison v.

State, 914 N.W.2d 866, 870 (Iowa 2018). We give weight to the district court’s

witness credibility findings. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

III.   Analysis

       As the PCR applicant, Morris must show, by a preponderance of the

evidence, trial counsel breached an essential duty and prejudice resulted. See

Strickland v. Washington, 466 U.S. 668, 687 (1984); Lamasters, 821 N.W.2d at

866. We will affirm the PCR denial if either prong is unsatisfied. Anfinson v. State,

758 N.W.2d 496, 499 (Iowa 2008).

       On appeal, Morris claims his trial attorneys were ineffective in not filing a

motion in arrest of judgment attacking his guilty plea. He alleges: “Had either

attorney for Morris filed a motion in arrest of judgment, the Court could have set

aside [his] guilty plea and allowed him to proceed to trial as Morris intended.”

       The rules of criminal procedure explain the role of motions in arrest of

judgment. Such motions allow a defendant to apply for a ruling that no judgment

be rendered on his or her plea of guilty. Iowa R. Crim. P. 2.24(3)(a). The court

must grant the motion “when upon the whole record no legal judgment can be
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pronounced.” Id. If a defendant fails to challenge the adequacy of a guilty-plea

proceeding by motion in arrest of judgment, he or she cannot assert such a

challenge on appeal. Id. But a defendant’s failure to file a motion in arrest of

judgment will not bar a challenge on appeal if the neglect resulted from ineffective

assistance of counsel. State v. Bearse, 748 N.W.2d 211, 218 (Iowa 2008).

       What’s missing from Morris’s appellate argument is any mention of a

deficiency in the guilty-plea hearing that would have justified either attorney in filing

a motion in arrest of judgment. See State v. Barbee, 370 N.W.2d 603, 605 (Iowa

Ct. App. 1985) (explaining motion in arrest of judgment “must point out wherein the

deficiency exists”).     By not pointing to any inadequacy in the guilty-plea

proceeding, Morris fails to prove a breach of duty by his trial counsel.

       Even if Morris could identify a deficiency in the plea proceeding, the record

does not support his claim he expressed his wish to withdraw his guilty plea to

either of his trial attorneys. We defer to the district court’s specific credibility finding

on that question. See Taylor v. State, 352 N.W.2d 683, 687 (Iowa 1984). Because

Morris cannot show counsel’s performance fell below an objective standard of

reasonable competence, we affirm the PCR denial.

       AFFIRMED.
