                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1140
                             Filed February 20, 2019


MATTHEW ALAN LEONARD,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,

Judge.



       Matthew Leonard appeals the denial of his application for postconviction

relief. AFFIRMED.




       Mathew D. Zinkula of Booth Law Firm, Osceola, for appellant.

       Thomas J. Miller, Attorney General, and Kevin Cmelik, Israel Kodiaga and

Kelli A. Huser (until withdrawal), Assistant Attorneys General, for appellee State.



       Considered by Vaitheswaran, P.J., Mullins, J., and Carr, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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CARR, Senior Judge.

       Matthew Leonard appeals the denial of his application for postconviction

relief (PCR). He asserts he did not understand the consequences of his guilty

plea. We find he has not shown ineffective assistance and affirm.

       “[W]e review claims of ineffective assistance of counsel de novo.” Ledezma

v. State, 626 N.W.2d 134, 141 (Iowa 2001). “In addition, we give weight to the

lower court’s findings concerning witness credibility.” Id. “In order to succeed on

a claim of ineffective assistance of counsel, a defendant must prove: (1) counsel

failed to perform an essential duty; and (2) prejudice resulted.” State v. Maxwell,

743 N.W.2d 185, 195 (Iowa 2008). The defendant must prove both prongs by a

preponderance of the evidence. Id. at 196; see also State v. Graves, 668 N.W.2d

860, 869 (Iowa 2003) (“A defendant’s inability to prove either element is fatal.”).

       Leonard was charged with two counts of robbery in the second degree and

one count of forgery. See Iowa Code §§ 711.1, 711.3, 715A.2(1), 715A.2(2)(a)(3)

(2013). On Friday, November 14, 2014, Leonard participated in a plea hearing on

the charges. The State had agreed to recommend concurrent sentences on all

charges in exchange for his guilty plea. In the hearing, he requested permission

to enter his guilty plea on Monday so he could put his affairs in order over the

weekend. The court agreed to accept his plea on Monday. However, the court

warned him the State would be free to recommend any sentence allowed by law—

including consecutive prison sentences—if he failed to return on Monday or if he

engaged in additional criminal activity or used illegal substances before his next

hearing.
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       Leonard failed to return on Monday. A warrant was issued, and he was

arrested about a week later. On December 17, he pled guilty to all three charges

at a hearing. Before accepting his plea, the court engaged him in a colloquy and

explained the State would be able to recommend any legal sentence including

consecutive sentences totaling twenty-five years in prison. On January 29, 2015,

the court sentenced him to terms of incarceration not to exceed ten years on each

count of robbery and five years on the count of forgery, with the two robbery

sentences run consecutively and the forgery sentence run concurrently for a total

period of incarceration not to exceed twenty years.1 On March 3, 2016, he filed

his application for PCR. On July 13, 2017, the district court denied his application.

He now appeals.

       Leonard argues his plea counsel was ineffective for failing to explain the

consequences of his guilty plea. At the PCR hearing, he testified he repeatedly

told his plea counsel he would not plead guilty if the State would not recommend

concurrent sentences. The PCR court did not find this testimony credible, and we

give weight to this determination. See Ledezma, 626 N.W.2d at 141. Furthermore,

the   court   informed   him   of—and     he    acknowledged      understanding—the

consequences of pleading guilty without a plea agreement in each hearing. The

following exchange occurred during the November 14, 2014 hearing:

       THE COURT: And Mr. Leonard, I want you to understand that if you
       do not appear in this courtroom at 9:00 on Monday morning, that a
       warrant will be issued for your arrest and if you fail to appear, I think
       that would take care of any plea agreement you have from the state
       to recommend concurrent sentences. Do you understand that? THE
       DEFENDANT: Yes, ma’am.

1
 We affirmed his sentence on direct appeal in State v. Leonard, No. 15-0381, 2015 WL
7686999, at *1 (Iowa Ct. App. Nov. 36, 2015).
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       Q: If . . . there was no plea agreement and you were convicted of all
       of these charges and they were run consecutive, you would be
       looking on the robbery charges of a total of twenty years with a
       mandatory minimum of fourteen. Do you understand that? A: Yes,
       ma’am.
       Q: And the forgery . . . . That would be another additional five years
       on the forgery charge. Do you understand that? A: Yes, ma’am.
       Q: So there is a fairly substantial benefit to you in having those run
       concurrent and reducing the amount of time you spend in prison
       probably by about half. Do you understand that? A: Yes.
       Q: . . . . [I]f you do get in any further trouble or if there is any indication
       or evidence that you have been using illegal substances or done
       things that you know you shouldn’t be doing over the weekend, [the
       prosecutor] has made a record that he will not be bound by the plea
       agreement to recommend concurrent sentences.                          Do you
       understand that? A: Yes, ma'am.

       The following exchange then occurred in the December 17, 2014 hearing

before Leonard entered his plea:

       Q: My understanding of the plea discussions in this matter are that
       the parties are each free to argue any legal sentence at the time of
       sentencing. Is that your understanding? A: Yes, Your Honor.
       Q: All right. And so you understand that at the time of the sentencing
       the court will then determine, first of all, whether the sentences run
       concurrent or consecutive to each other. Since two of them are
       forcible felonies, there will be a mandatory prison term. The court
       will then determine whether it’s ten years or twenty years. Do you
       understand that? A: Yes, Your Honor.
       Q: And the court could at that time run everything consecutive, as I
       explained to you earlier, for a total of twenty-five years. Do you
       understand that? A: Yes, Your Honor.
       Q: Knowing all of that, you still wish to plead guilty today? A: Yes,
       Your Honor.

       Considering Leonard’s credibility at the PCR hearing and his recorded

colloquies with the court prior to entering his plea, we affirm the district court’s

finding that he has not shown his plea counsel was ineffective for failing to explain

the consequences of his guilty plea.

       Leonard also argues his PCR counsel was ineffective for failing to assert

his plea counsel was ineffective for failing to file a motion in arrest of judgment
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challenging his plea. See Iowa R. Crim. P. 2.24(3) (requiring a defendant to file a

motion in arrest of judgment in order to challenge the adequacy of a guilty plea).

Essentially, he argues his plea counsel had a duty to file a motion in arrest of

judgment to argue his plea was not made voluntarily and intelligently on the same

grounds discussed above regarding his understanding of his plea. See Iowa R.

Crim. P. 2.8(2)(b) (requiring the court to determine a guilty “plea is made voluntarily

and intelligently and has a factual basis” before accepting the plea). As explained

above, Leonard has not shown his plea counsel was ineffective for failing to explain

the consequences of his guilty plea. For the same reasons, he has not shown his

PCR counsel was ineffective for failing to argue his plea counsel was ineffective

for failing to file a motion in arrest of judgment to challenge his plea on those same

grounds. Therefore, he has not shown ineffective assistance from either counsel,

and we affirm the district court’s denial of his PCR application.

       AFFIRMED.
