                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1378
                             Filed October 15, 2014


ALVIN JOHN RICHARDSON III,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Rebecca Goodgame

Ebinger, Judge.



      Defendant appeals from the denial of his application for postconviction

relief. AFFIRMED.




      John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, John P. Sarcone, County Attorney, and Joseph D. Crisp, Assistant

County Attorney, for appellee State.




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

       Alvin Richardson III appeals from the district court’s denial of his

application for postconviction relief (PCR).   Because we find counsel did not

provide ineffective assistance, we affirm.

I. Background Facts and Proceedings.

       On January 13, 2011, Richardson was charged by trial information with

possession of a controlled substance (marijuana)-third offense, in violation of

Iowa Code section 124.401(5) (2009). The trial information also alleged that, due

to prior felony convictions, Richardson was subject to the habitual offender

enhancement, pursuant to section 902.8.

       Richardson subsequently tendered a plea to the drug offense as charged,

and his plea was accepted on April 11, 2011.       After Richardson’s plea was

accepted in the drug case, but before sentencing, Richardson was charged in an

unrelated trial information with domestic abuse assault enhanced, child

endangerment, and assault causing bodily injury. Richardson was appointed a

new attorney, who was to represent him in both the domestic violence charges

and for sentencing in his drug case.

       On May 17, 2011, pursuant to a plea agreement, Richardson pled guilty to

the domestic abuse enhanced charge, and the State dismissed the charges for

child endangerment and assault causing bodily injury.

       On May 23, 2011, the district court held a sentencing hearing in

Richardson’s drug case.        The State advocated for incarceration for an

indeterminate time period not to exceed fifteen years with the requirement

Richardson serve a minimum of three years, as an habitual offender.
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Richardson’s attorney advocated for a suspended sentence. Richardson was

sentenced to an indeterminate term of incarceration, not to exceed fifteen years.

      On May 31, 2011, Richardson was sentenced in the domestic violence

case. He was sentenced to an indeterminate term of incarceration not to exceed

two years. The sentence was ordered to run concurrently with the sentence from

the drug case.

      Richardson appealed both convictions and sentences. The Iowa Supreme

Court dismissed both appeals as frivolous with procedendo issuing on

October 25, 2011, and January 4, 2012.

      Richardson filed his application for PCR on June 12, 2012.         After an

evidentiary hearing, the district court denied Richardson’s application, and he

appeals.

II. Standard of Review.

      Generally, we review postconviction proceedings for errors at law. Castro

v. State, 795 N.W.2d 789, 792 (Iowa 2011). However, applications that raise an

ineffective-assistance-of-counsel claim present a constitutional challenge, which

we review de novo. Id.

III. Discussion.

      On appeal, as he did at his PCR hearing, Richardson contends trial

counsel was ineffective for wrongly advising him he would receive probation at

sentencing for his drug case if he pled guilty in his domestic violence case. He

maintains he received a longer sentence than he otherwise would have in his
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drug case because he took counsel’s advice.1 Although he filed the application

for relief in his drug case, Richardson alleges the “collateral consequence of a

guilty plea to an unrelated domestic abuse assault case” constituted ineffective

assistance of counsel in his drug case. Richardson relies upon the sentencing

court’s reference to Richardson having “messed up during the pendency of this

matter.” Richardson contends the court’s reference during sentencing related to

the domestic abuse charge and plea.

       To prevail on a claim of ineffective assistance of counsel, the applicant

must prove by a preponderance of the evidence (1) the attorney failed to perform

an essential duty and (2) prejudice resulted from the failure. State v. Rodriguez,

804 N.W.2d 844, 848 (Iowa 2011). To prove that counsel failed to perform an

essential duty, he must show “counsel’s representation fell below an objective

standard of reasonableness . . . under prevailing professional norms.”               See

Strickland v. Washington, 466 U.S. 668, 688 (1984).                The applicant must

overcome a strong presumption of counsel’s competence.                 Id. at 689.     To

establish prejudice, the applicant must show there is “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. The claim fails if either element is lacking. See

Everett v. State, 789 N.W.2d 151, 159 (Iowa 2010).

       Although the fact findings of the district court are not binding, we give

deference to those findings because the district court had the opportunity to

1
  The district court found, and the State maintains on appeal, that Richardson should
have filed an application for postconviction relief in the case in which the allegedly bad
advice was given, not in the case in which the collateral consequences were felt. For
the purpose of this appeal, we assume the case was properly brought, and we decide it
on the merits.
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assess the credibility of the witnesses. State v. Shanahan, 712 N.W.2d 121, 131

(Iowa 2006).    Here, the court explicitly found credible the trial attorney’s

testimony that he “did not tell [the Petitioner] that pleading to the domestic was

going to make his situation better for his felony case.” The court also noted that

Richardson had signed the petition to plead guilty in the domestic case, which

states, “There have been no promises or threats to get me to plead guilty,” and “I

am knowingly and intelligently pleading guilty to the above charge(s) because I

am guilty.” Our review supports the same conclusion. Accordingly, we need not

reach the issue of whether counsel would be ineffective for providing the advice

Richardson claims he received.

      Because there is credible evidence that trial counsel did not advise

Richardson pleading guilty in the domestic violence case would benefit him in his

sentencing for the drug case, counsel did not provide ineffective assistance, and

we affirm.

      AFFIRMED.
