                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1868
                                Filed May 6, 2015


JOHN EDWARD COWLES,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Davis County, Myron L. Gookin,

Judge.



       An applicant appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, Rick L. Lynch, County Attorney, and Ashley M. Leyda, Assistant County

Attorney, for appellee State.



       Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ. Tabor,

J. takes no part.
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VOGEL, P.J.

      John Cowles was originally charged with twenty counts of second-degree

sexual abuse, four counts of third-degree sexual abuse, and one count of incest

all arising out of his sexual abuse of his daughter over a number of years. See

State v. Cowles, 757 N.W.2d 614, 615 (Iowa 2008). He pled guilty to one count

of second-degree sexual abuse, four counts of third-degree sexual abuse, and

one count of incest.   Id.   The plea agreement called for a joint sentencing

recommendation of concurrent sentences for all the counts and a 70%

mandatory minimum sentence imposed on the class “B” felony, the second-

degree sexual abuse conviction.      Id. at 616.   The court accepted the plea

agreement and the joint sentencing recommendation, and sentenced Cowles

accordingly. Id.

      Cowles did not file a direct appeal, but instead, on July 7, 2006, he filed a

motion to correct an illegal sentence asserting the imposition of the mandatory

minimum violated the constitutional prohibitions against ex post facto laws. Id.

He stated the mandatory-minimum-sentence statute went into effect on July 1,

1996, but he was alleged to have committed the offense sometime between April

9, 1996, and February 3, 1997. Because the plea colloquy did not establish he

committed the crime after July 1, 1996, he claimed the imposition of the

mandatory minimum sentence was illegal. Id.

      The supreme court rejected Cowles’s claim, finding:

            Under the circumstances presented in this case, we
      conclude the mandatory minimum sentence did not violate the Ex
      Post Facto clauses. At his plea and sentencing hearing, Cowles
      expressly admitted he perpetrated a sex act on a victim under
      twelve years of age between April 9, 1996 and February 2, 1997.
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       Cowles also acknowledged he wished to plead guilty after he was
       advised he would be required to serve at least seventy percent of
       the maximum sentence for the offense. Although it is true Cowles
       did not expressly admit during the plea colloquy he committed the
       offense after July 1, 1996, we find an implicit admission of such
       conduct in the full context of the hearing.
              The record made by the parties on the occasion of the plea-
       taking and sentencing hearing evidences Cowles admitted guilt for
       an act of sexual abuse that occurred after July 1, 1996. The
       mandatory minimum sentence requirement of section 902.12
       applied only to acts of sexual abuse committed after that date. As
       we have already noted, the court informed Cowles an admission of
       guilt would expose him to a mandatory minimum sentence. With
       knowledge of that prospect, and after his counsel confirmed on the
       record he had advised his client of the maximum and minimum
       penalties that could result, Cowles entered and the court accepted
       the guilty plea. We conclude the guilty plea and the resulting
       sentence conformed completely with the parties’ plea agreement.
       This conclusion is supported by the fact Cowles did not challenge
       the legality of the sentence until he filed an application for
       postconviction relief more than two years later on August 4, 2005.
       Under the circumstances, we conclude no violation of the Ex Post
       Facto clauses occurred here.

Id. at 617.

       Cowles filed an application for postconviction relief (PCR), as amended,

making a number of claims all challenging the imposition of the mandatory

minimum sentence.1 The district court rejected the challenges, finding

              Although the Plaintiff has raised numerous issues in his
       application, amendments thereto, and numerous other filings, his
       complaints boil down to a rather narrow issue that can be readily
       resolved. All of Plaintiffs issues boil down to a determination of
       whether the twenty-five year sentence on his class B felony 2nd
       degree sexual abuse conviction is subject to a 70% mandatory
       minimum.
              Plaintiff claims he is not subject to the 70% mandatory
       minimum and, because he was advised by his counsel and the
       court that he was subject to such a mandatory minimum, such
       inaccurate advice infected his plea and sentencing hearing such
       that he did not make a knowing and voluntary guilty plea, his

1
 Multiple PCR filings were made part of this record, beginning in August 2005 and
continuing through July 2013.
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attorneys were ineffective, there was a lack of factual basis in
support of his guilty plea, he was denied full allocution at
sentencing, he did not make a fully informed, knowledgeable and
voluntary decision to waive use of a presentence investigation at
sentencing, the court failed to recite an adequate reason for the
sentence, and his attorney in a subsequent appeal on a motion for
reconsideration of sentence was ineffective because he failed to
respond to a “terrible, terrible prejudicial inaccuracy in a brief made
by the state.” All of Plaintiff’s claims in his postconviction relief
application depend on his assertion that he is not subject to the
70% mandatory minimum on his 2nd degree sexual abuse
conviction.
         ....
         This Court reaches the same conclusion [as the supreme
court] concerning Plaintiff’s guilty plea. Plaintiff knew exactly what
he was doing when he accepted a plea bargain that required him to
plead guilty to one out of twenty charges of 2nd degree sexual
abuse and receive a 70% mandatory minimum sentence thereon,
together with other charges of 3rd degree sexual abuse and incest,
with concurrent sentences. Any claim on his part that he did not
know what he was doing at his guilty plea, or that he would not
have accepted the plea bargain if he knew convictions to pre-July
1, 1996 acts did not carry a mandatory minimum sentence, are
simply not credible for the following reasons.
         The record reveals Plaintiff did not want to drag his family
through a trial and never intended to take any of the charges to
trial. It further reveals the Davis County attorney would not agree to
any kind of a plea bargain that did not require a 70% mandatory
minimum sentence under a 2nd degree sexual abuse guilty plea. It
is incomprehensible and unbelievable that Plaintiff would have
rejected the plea bargain he accepted, and instead take twenty
charges of 2nd degree sexual abuse to trial, together with the other
3rd degree sexual abuse and incest charges, if he would have
known about the July 1, 1996 mandatory minimum law change.
Even if all of the 2nd degree sexual abuse charges were based on
pre-July 1, 1996 acts, the potential sentence for convictions on all
such charges would be 500 years, if ordered to run consecutively.
And, such 500 years of potential incarceration does not include the
45 additional years of incarceration that could be imposed for
possible convictions on the other four Class C (3rd degree sexual
abuse) and one Class D (incest) felonies.
         Plaintiff’s claims are directly contradicted by his interaction
with the court at his guilty plea hearing and sentencing. See Arnold
v. State, 540 N.W.2d 243, 246 (Iowa 1995) (holding where such
direct contradiction occurs the applicant bears a special burden to
establish that the record is inaccurate). The transcript of his guilty
plea and sentencing hearing clearly establishes he fully understood
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       the plea bargain, including the nature of the crimes to which he was
       pleading and the 70% mandatory minimum sentence to which he
       would be subjected on the 2nd degree sexual abuse conviction,
       and that he understood what he was doing throughout the
       proceedings. Plaintiff has failed in his special burden of proof and
       the Court finds he was acting intelligently and voluntary at his guilty
       plea hearing and completely understood his plea agreement and
       the potential consequences. Consistent with the Iowa Supreme
       Court’s analysis, this Court finds Plaintiff knowingly, intelligently and
       voluntarily pled guilty to an act constituting 2nd degree sexual
       abuse that occurred on or after July 1, 1996, which provided a
       proper basis for the 70% mandatory minimum sentence imposed
       against him.
               With a determination that Plaintiff made a knowing and
       intelligent guilty plea and that he was subject to the 70% mandatory
       minimum sentence on his 2nd degree sexual abuse conviction, all
       other postconviction claims by Plaintiff must fail and the Court will
       not further address such claims.

       Cowles appeals the district court’s PCR ruling claiming (1) the district

court erred in concluding his guilty plea counsel was not ineffective in failing to

inform him of the crucial law change regarding the imposition of a mandatory

minimum sentence for crimes committed after July 1, 1996, making his plea

involuntary, unknowing, and unintelligent, and (2) PCR counsel was ineffective in

failing to get a ruling on the meritorious pro se issues, specifically (a) that his

guilty plea lacked a factual basis, (b) that the plea court erred in assuming it had

no discretion regarding the imposition of the 70% mandatory minimum, and (c)

that the prosecutor committed misconduct by not informing the court and Cowles

of the law change regarding the mandatory minimum. In addition, Cowles filed a

pro se brief in this PCR appeal alleging PCR counsel was ineffective in not

seeking a ruling from the district court addressing his claim that his allocution

was not fully informed and knowledgeable where he did not know he could ask
                                          6


for a sentence without the 70% mandatory minimum—a better sentence than he

bargained for under the plea agreement.

       We agree with the district court that all of Cowles’s claims boil down to his

claim that the 70% mandatory minimum should not be applied to him because he

did not plead guilty to an offense occurring after July 1, 1996. This claim was

resolved by the supreme court when it found an “implicit admission” to such

conduct as a result of pleading guilty to the offense with full knowledge the 70%

minimum would be applied to him under the parties’ plea agreement. Cowles,

757 N.W.2d at 617. Because the supreme court found this implicit admission,

the guilty plea was supported by a factual basis, the district court did not have

discretion to forgo imposing the mandatory minimum, and the prosecutor did not

commit misconduct in not informing Cowles or the court to the contrary. Thus, to

the extent Cowles asserts PCR counsel was ineffective in not getting an explicit

ruling from the PCR court on these pro se claims, his claim fails. See State v.

Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (“[W]e have held that counsel has no

duty to raise an issue that has no merit.”).

       Cowles’s pro se claim addressing his allocution likewise fails. Cowles

could not have asked for a sentence without the mandatory minimum as the

guilty plea included an implicit admission to committing the offense after July 1,

1996, the plea agreement called for a joint sentencing recommendation with the

mandatory minimum, which would make it a breach of the plea agreement if

Cowles requested a lighter sentence, and the district court had to impose the

minimum as it was mandatory.          Likewise, Cowles’s plea counsel was not

ineffective in failing to inform him of the law change where the prosecutor made
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clear there would be no plea bargain without the mandatory minimum on the

second-degree sexual abuse guilty plea.

      We agree with the district court’s rejection of Cowles’s PCR claims and

affirm its decision under Iowa Court Rule 21.26(1)(d) and (e).

      AFFIRMED.
