                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1024
                               Filed August 5, 2020


SHANE JACOBS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Hancock County, James M. Drew,

Judge.



      Shane Jacobs appeals the denial of his application for postconviction relief.

AFFIRMED.



      Benjamin D. Bergmann and Alexander Smith of Parrish Kruidenier Dunn

Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for appellant.

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

General, for appellee State.



      Considered by Bower, C.J., and Doyle and Schumacher, JJ.
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DOYLE, Judge.

       Shane Jacobs pled guilty to willful injury and domestic abuse assault by

impeding air flow.   The presentence investigation (PSI) report recommended

imposing consecutive sentences and suspending them. But the district court

instead followed the State’s recommendation and sentenced Jacobs to serve

concurrent prison sentences. We affirmed Jacobs’s sentence on direct appeal,

concluding the district court properly exercised its discretion in imposing it. See

State v. Jacobs, No. 18-0160, 2019 WL 156638, at *2-3 (Iowa Ct. App. Jan. 9,

2019). Jacobs now appeals the denial of his application for postconviction relief

(PCR), alleging his trial counsel rendered ineffective assistance by failing to

prepare him adequately for the sentencing hearing.

       We review ineffective-assistance claims de novo. See Lamasters v. State,

821 N.W.2d 856, 862 (Iowa 2012). To succeed on a claim of ineffective assistance

of counsel, an applicant must show counsel breached a duty and prejudice

resulted. See id. at 866. A breach of duty occurs when counsel’s performance

falls below the standard of a reasonably competent attorney. See id. Prejudice

occurs when the outcome of the proceeding would have been different had counsel

performed effectively.1 See id. We may affirm the denial of a PCR application if

either element is lacking. See id.



1 Jacobs argues that Iowa courts should adopt a higher standard by presuming
prejudice if an applicant establishes a breach of duty. We leave it to the Iowa
Supreme Court to resolve that issue should it choose to do so. See State v. Miller,
841 N.W.2d 583, 584 n.1 (Iowa 2014) (“Generally, it is the role of the supreme
court to decide if case precedent should no longer be followed.”); State v. Hastings,
466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at liberty to overturn Iowa
Supreme Court precedent.”).
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       Jacobs alleges his trial counsel breached an essential duty by failing to give

adequate advice about the PSI interview. Although his attorney’s strategy at

sentencing was to show that Jacobs accepted responsibility for his actions,

counsel approved of Jacobs submitting a written statement to the PSI investigator

that Jacobs now claims undermined that strategy.          In the statement, Jacobs

recounted his version of the events that led to his convictions. Jacobs testified at

the PCR hearing that with hindsight, he believes the statement makes him look

unremorseful by placing the blame on the complaining witness and not accepting

any blame of his own. He notes that at the sentencing hearing, the prosecutor

emphasized this view of the statement by arguing that Jacobs used language one

could describe as “minimizing, if not outright denial” and “blames this whole

incident on the victim.” And the sentencing court, after reviewing the PSI report,

“was struck to some extent with what [it] would call a lack of willingness to take full

responsibility for what happened” as one of several factors it considered in

imposing sentence. The court noted that the statement Jacobs gave in allocution

“was certainly an improvement” over the statement he gave the PSI investigator,

but it reiterated its belief that “to some extent” Jacobs lacked “a sense of

responsibility for what happened.”

       In determining that trial counsel was not ineffective by allowing Jacobs to

submit his statement to the PSI investigator, the PCR court noted that “there is a

fine line between trying to excuse one’s behavior as opposed to trying to explain

it.” It noted that judges “are independent individuals who may have different

opinions regarding the nature of [Jacobs’s] statement,” and a person could

arguably view what the sentencing court saw as failure to accept responsibility as
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a mitigating circumstance. The court found that choosing to submit the statement

written by Jacobs “was a strategy decision that should not be second-guessed in

hindsight.”

       We concur in the PCR court’s assessment. A PCR applicant is more likely

to prevail on a claim of ineffective assistance based on counsel’s lack of diligence

than counsel’s exercise of judgment. See State v. Polly, 657 N.W.2d 462, 465

(Iowa 2003). Usually, tactical decisions are immune from a claim of ineffective

assistance of counsel after the fact. See Osborn v. State, 573 N.W.2d 917, 924

(Iowa 1998). That is because “mere mistakes in judgment normally do not rise to

the level of ineffective assistance of counsel.” Ledezma v. State, 626 N.W.2d 134,

143 (Iowa 2001). Although “there can be a point when the tactical or strategic

decisions made by counsel from a host of competing options fall outside the broad

scope of a reasonably competent attorney,” id., that is not the case when counsel

makes a decision between “equally hazardous options,” State v. Newman, 326

N.W.2d 788, 795 (Iowa 1982) (stating its refusal “to assume the role of Monday

morning quarterback”); accord Sallis v. Rhoads, 325 N.W.2d 121, 123 (Iowa 1982)

(“We do not make the competency determination on the basis of hindsight.”). After

all, “[e]ffective assistance of counsel does not mean successful assistance.” State

v. Simpson, 349 N.W.2d 783, 786 (Iowa Ct. App. 1984).

       Jacobs has failed to show his trial counsel breached a duty by allowing him

to submit his statement to the PSI investigator. We affirm the denial of Jacobs’s

PCR application.

       AFFIRMED.
