                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1561
                               Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALEXANDER BARILLAS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clayton County, Richard D. Stochl,

Judge.



      A criminal defendant appeals his conviction and sentence following his

guilty plea to assault with intent to commit sexual abuse. AFFIRMED.




      Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee State.




      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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POTTERFIELD, Presiding Judge.

       Alexander Barillas appeals his conviction and sentence after pleading

guilty to assault with intent to commit sexual abuse. He argues the district court

abused its discretion in sentencing him to five years in prison, and his trial

counsel was ineffective for allowing him to enter a guilty plea without fully

understanding the terms of the agreement and thereafter failing to file a motion in

arrest of judgment to set aside the plea. We find no merit in Barillas’s claim of

ineffective assistance of counsel and no abuse of discretion in the sentence

imposed, and therefore affirm.

I. Background Facts and Proceedings

       On March 31, 2014, a woman alleged Barillas had forcibly engaged in

anal sexual intercourse with her after she repeatedly told him “no.”              Before

Barillas was charged or arrested, he was interviewed by law enforcement and

admitted to many specific facts regarding the crime.1            During the interview,

Barillas explained he and the woman had previously been in a relationship and

continued meeting for purposes of sexual intercourse after the relationship

ended. He also told the interviewer he had, on multiple occasions in the past,

asked the woman to consent to anal intercourse, but that she never agreed to do

so. Barillas initially denied he had done anything wrong and stated he and the




1
 Barillas filed a motion to suppress the statements he made during the taped interview.
The district court denied the motion after finding the interview was non-custodial in
nature and Barillas’s participation in it was voluntary. The district court noted Barillas
drove himself to the police station, agreed to take part in the interview, was never
handcuffed or restrained in any manner, sat next to an open door during the interview,
and was repeatedly told he was not under arrest and was free to leave.
                                         3


woman had engaged in consensual anal intercourse after the woman agreed to

try it for the first time.

        However, after the interviewer challenged various aspects of Barillas’s

account, Barillas admitted the woman told him “no” several times on the night in

question, and he forcibly engaged in anal intercourse with her anyway because

he figured he “could persuade her to like it” by starting without her permission

and showing her it was pleasurable. He also admitted the woman stopped the

encounter by pushing him away and leaving. Finally, Barillas admitted sending

the woman a text message the next day that read, “I’m sorry, you deserved it,”

although he insisted he sent the message as a joke. He ultimately conceded

what he did to the woman was a mistake.

        Barillas was charged by trial information with the crime of sexual abuse in

the third degree, a class “C” felony, in violation of Iowa Code section 709.4(1)

(2013). Pursuant to a plea agreement Barillas entered into with the State, the

charge was later amended to assault with intent to commit sexual abuse, a class

“D” felony, in violation of Iowa Code section 709.11. In addition to the charging

concession, the plea agreement provided that, in exchange for Barillas’s plea of

guilty, the State’s sentencing recommendation would reflect the findings and

recommendations of Barillas’s presentence investigation report (PSI). Barillas

was free to ask the district court for whatever sentence he wished.

        When Barillas formally entered his plea of guilty in court, his attorney

explained the State had “agreed that there would be a presentence investigation

and that they would be recommending to the court, or concurring with, the

recommendation of the presentence investigative report.        We’ll obviously be
                                           4


asking for whatever sentence we feel is appropriate in the applicable statute, up

to and including a deferred [sentence].” At the same hearing, the district court

asked Barillas if he understood that by pleading guilty, he faced a potential

sentence of five years in prison. Barillas told the court he understood.

       The PSI prepared in anticipation of Barillas’s sentencing hearing

recommended a five-year prison sentence. The PSI noted Barillas’s refusal to

accept responsibility for his actions, as evidenced by the way his account of the

incident vacillated. After having admitted his crime during the interview with law

enforcement, Barillas made contrary statements to a department of correctional

services psychologist. The PSI states, “[Barillas] reports that no one was hurt

from his actions, he made a mistake and the allegations were exaggerated.

[Barillas] also indicated the victim was a willing participant who was curious, liked

and wanted the sexual contact that occurred.” The PSI also states:

               According to [Barillas], the victim came to his house “every
       night” and they engaged in consensual intercourse. He asked her
       to try something different, she didn’t like it and went to the police.
       [Barillas] indicated that while at the police station things got
       confused and he said things happened that did not really occur.
               [Barillas] does not feel the charges are fair and that law
       enforcement did not complete the investigation correctly. He felt
       like he was ‘interrogated like a terrorist.’ [Barillas] stated he likes to
       help people, he hasn’t done anything wrong and was stabbed in the
       back.

Finally, the PSI notes Barillas’s belief he would receive a deferred judgment

without probation supervision, even though neither his attorney nor the county

attorney had agreed to such a disposition. According to the PSI, Barillas was

informed a deferred judgment was not a foregone conclusion but “could be an

option,” and not having probation supervision was unlikely.
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       At Barillas’s sentencing hearing,2 the district court heard victim impact

statements from the woman Barillas assaulted and her husband, testimony from

two department of correctional services employees—a staff psychologist and a

parole officer—and a brief statement from Barillas himself.                The State

recommended a five-year prison sentence, in line with the sentencing

recommendation contained in Barillas’s PSI report. Barillas requested a deferred

judgment. The district court ruled as follows from the bench:

               Mr. Barillas, . . . [after] being told no, you forcibly anally
       raped a woman. And after you left her—or after she left your home,
       you texted her [and] said, “Sorry, you deserved it.” I believe that
       was your attitude that day and I don’t believe your attitude has
       changed that much.
               It is the sentence of this court that you are sentenced to an
       indeterminate term of incarceration not exceed five years. . . . You
       are also sentenced to a special sentence of ten years of parole
       following your release from prison pursuant to the provisions of
       Iowa Code section 903B. You are also ordered to complete sex
       offender treatment and you’ll be required to register as a sex
       offender in the state of Iowa.
               ....
               The reason for my sentence is the defendant’s age, most
       specifically the nature of his acts, including the force and his
       attitude about that act afterwards. I have not put much weight in
       the . . . psychosexual evaluations. I’ve considered some parts of
       the PSI but not all of them.

       Barillas appeals.

II. Standard of Review

       When a district court’s sentence is within the statutory limits, we review its

sentencing decision for an abuse of discretion. State v. Seats, 865 N.W.2d 545,

552 (Iowa 2015). “An abuse of discretion will not be found unless we are able to


2
  The sentencing hearing took place on two separate days—June 30, 2015, and
September 15, 2015—to allow Barillas the opportunity to present evidence related to the
psychosexual evaluation completed as a part of the PSI process.
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discern that the decision was exercised on grounds or for reasons that were

clearly untenable or unreasonable.” State v. Formaro, 638 N.W.2d 720, 724

(Iowa 2002).

      We may decide ineffective-assistance-of-counsel claims on direct appeal if

we determine that the record is adequate. State v. Straw, 709 N.W.2d 128, 133

(Iowa 2006). We review claims of ineffective assistance of counsel de novo. Id.

This is our standard because such claims have their basis in the Sixth

Amendment to the United States Constitution. State v. Clay, 824 N.W.2d 488,

494 (Iowa 2012).

III. Analysis

      Barillas argues the district court abused its discretion by sentencing him to

prison instead of granting him either a suspended sentence or a deferred

judgment because those other options would have better served the dual

purposes of providing the maximum opportunity for rehabilitation while also

providing protection to the community from further offenses. See Iowa Code

§ 901.5. According to Barillas, the court’s sentence was overly punitive, given

the nature of the crime and his lack of prior criminal offenses. We disagree.

“[T]he decision of the district court to impose a particular sentence within the

statutory limits is cloaked with a strong presumption in its favor,” and the choice

of one sentencing option over another does not necessarily constitute error.

Formaro, 638 N.W.2d at 724–25. The very nature of the sentencing process

grants the district court discretion in choosing between sentencing options, and

the court in this case did not abuse its discretion by making a reasoned decision

to refuse Barillas the leniency for which he hoped.
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       Barillas also argues he did not fully understand the ramifications of the

plea agreement he entered into with the State—he believed the State would be

recommending a deferred judgment—and his counsel was therefore ineffective

for allowing him to enter into the plea agreement and for thereafter failing to file a

motion in arrest of judgment seeking to have his guilty plea set aside.

       In order to prevail on his claim of ineffective assistance of counsel, Barillas

must establish both that “(1) his trial counsel failed to perform an essential duty,

and (2) this failure resulted in prejudice.”    Straw, 709 N.W.2d at 133 (citing

Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). Both elements must be

proved by a preponderance of the evidence. Id. In order to prove prejudice,

Barillas “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. In the context of this appeal, Barillas “must show

that there is a reasonable probability, but for counsel’s errors, he . . . would not

have pleaded guilty and would have insisted on going to trial.”           Straw, 709

N.W.2d at 138. If we find that prejudice is lacking, we may decide his claim on

that ground alone without addressing his counsel’s performance. Ledezma v.

State, 626 N.W.2d 134, 142 (Iowa 2001).

       Assuming without deciding Barillas was, in fact, misled about the sentence

the State would be recommending to the district court—not just overconfident he

would receive a recommendation of a deferred judgment rather than the

maximum five-year prison sentence—we find he has failed to show that there is a

reasonable probability he would have made a different decision if he had not

been mistaken. Barillas avers he would not have accepted the plea deal and
                                        8


would instead have taken the case to trial had he known the State would not

recommend a deferred judgment.       In support of his contention, Barillas cites

several factors he believes would have been favorable to him at trial, including

the eight-day gap between the incident and the woman’s report to the police, the

lack of physical evidence, and the ongoing sexual relationship he had with the

woman.

      But Barillas cannot establish prejudice simply by asserting he would have

taken his case to trial; his assertions must be judged in the context of the

strength of the State’s case and the advantages gained by entering into the plea

agreement. See State v. Hallcok, 765 N.W.2d 598, 606 (Iowa Ct. App. 2009)

(discussing the advantages gained through the plea agreement); Boschert v.

State, No. 13-0009, 2013 WL 6405468, at *4 (Iowa Ct. App. Dec. 5, 2013)

(discussing the advantages gained through the plea agreement and the strength

of the State’s case).   While we recognize the difficulty of Barillas’s task in

meeting his burden of proof, we are left unconvinced by Barillas’s claim after

consideration of these additional factors. We cannot ignore the obvious benefit

he derived from his guilty plea—it resulted in his charge being downgraded from

a class “C” felony to a class “D” felony. The amended charge lessened Barillas’s

potential ten-year maximum prison sentence to a five-year maximum and a

lifetime special sentence to a ten-year special sentence.       See Iowa Code

§§ 902.9(4), (5), 903B.1, 903B.2. Given the benefit it provided him, we believe it

unlikely Barillas would have rejected the plea agreement.

      Our assessment of the strength of the State’s case against Barillas also

weighs against his statement he would have proceeded to trial. Barillas was
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recorded admitting to law enforcement he had forcibly engaged in anal

intercourse with a woman who had repeatedly told him “no” because he believed

he could make her like it. It was therefore highly probable Barillas would be

found guilty of sexual assault in the third degree. See id. § 709.4(1) (stating a

person commits the offense by performing a sex act “by force or against the will

of the other person”). The plea agreement he entered into allowed him to be

sentenced under a more forgiving statutory framework. Barillas’s claim he would

have gone to trial on the more serious charge is not convincing under the

circumstances, and as a result, we find he cannot establish the prejudice

necessary to prevail on his claim of ineffective assistance of counsel.

      AFFIRMED.
