                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1590
                           Filed September 23, 2015


TEODORO BORREGO,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley

(PCR hearing) and Thomas A. Bitter (plea and sentencing), Judges.



      Teodoro Borrego appeals from the summary dismissal of his application

for postconviction relief. AFFIRMED.




      Mark C. Smith, State Public Defender, and Rachel C. Regenold,

Assisstant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, Ralph R. Potter, County Attorney, and Brigit M. Barnes,

Assistant County Attorney, for appellee State.




      Considered by Doyle, P.J., and Mullins and Bower, JJ.
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DOYLE, Presiding Judge.

       Teodoro Borrego appeals from the summary dismissal of his application

for postconviction relief, contending there is a genuine issue of material fact as to

whether his guilty plea to second-degree murder was knowing and voluntary.

We affirm.

I.     Background Facts and Proceedings

       In 2011, Borrego was charged with murder in the first degree. Consistent

with the terms of a plea agreement, Borrego pled guilty to second-degree

murder. The plea memorandum provided Borrego would be sentenced to an

indeterminate term not to exceed fifty years with a seventy percent mandatory

minimum. The memorandum, signed by Borrego, specifically states: “Pursuant

to Iowa Code section 902.12(1), the Defendant shall be denied parole or work

release unless he has served at least seven-tenths of the maximum term of his

sentence.”

       Borrego appeared with counsel for the plea and sentencing hearing,

where the following colloquy took place:

              COURT: Okay. Mr. Borrego, are you aware that the
       maximum and mandatory penalty for murder in the second degree
       is a period of incarceration not to exceed 50 years?
              DEFENDANT: Yes.
              COURT: And by statute, are you aware that you are required
       to serve at least 70 percent of that sentence?
              DEFENDANT: Yes.
              COURT: Do you understand that the plea negotiations that
       you’ve entered into through the attorneys are not binding on the
       Court at the time of sentencing?
              DEFENDANT: Yes.
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The district court proceeded to the factual basis for Borrego’s plea, asking

Borrego to explain in his own words the incident leading to his charge. The

following colloquy took place:

             DEFENDANT: Well, what happened that night just we’ve
      been—she just been—for the last two years she’s been seeing
      other guys and stealing my money and lying to me, and that night I
      come home and I was going to tell her just give me my $2300 that
      she owed me so I could move out, and when I walked in the room,
      she had a big grin on her face and there was a naked guy on her
      phone and I lost it.
             COURT: Okay. What happened then?
             DEFENDANT: I went a—I went across the hallway and I had
      a shotgun there and I just—out of rage, I just grabbed it and went in
      the room, shot her.

The court thereafter accepted Borrego’s guilty plea and sentenced him per the

plea memorandum.

      Borrego filed an application for postconviction relief (PCR) challenging the

voluntariness of his plea and contending he received ineffective assistance of

counsel. Borrego subsequently filed an amended application through counsel.

In an affidavit attached to the amended application, Borrego stated:

             When I entered my guilty plea in 2011, I was told by my
      lawyer to take the plea offer or else I would be sentenced to life in
      prison. I was not advised by my lawyer that I would have to serve
      35 years of a 50 year sentence before I was eligible for parole. I
      thought that I would be eligible for parole. I also thought that I
      would receive day for day credit against my sentence for the time I
      spent in jail. I did not realize that I would not until I was informed
      differently by my counselor at Oakdale.
             If I had known that I was not eligible for parole for 35 years, I
      would not have pled guilty. I would have gone to trial. I felt
      pressured to plead guilty.

      The State filed a motion for summary judgment of Borrego’s application,

claiming the grounds urged by Borrego in his application were in contradiction to

the record and the guilty plea colloquy. Specifically, the State alleged, “Contrary
                                          4


to Borrego’s claims, the transcript of the plea proceedings show that Borrego in

fact knew that he was required to serve at least 70 percent of his sentence at the

time he pleaded guilty to murder in the second degree.” Attached to the State’s

motion for summary judgment was an affidavit by defense counsel Thomas

Goodman, stating in part:

               5. I informed Mr. Borrego that he could go to trial on the
       charge of murder in the first degree but that the evidence was very
       strong in the State’s favor. I also informed Mr. Borrego that if he
       were convicted of murder in the first degree, the penalty for that
       charge was life in prison without parole. I also informed Mr.
       Borrego that if he were convicted of murder in the second degree,
       the penalty for that charge would be fifty years in prison. I also
       advised him that the law required him to serve seventy percent of
       that fifty year sentence before he would be eligible for parole. I
       shared all of this information with Mr. Borrego’s daughter and son
       as well.
               6. In light of the strong evidence in favor of the State in this
       case, I advised Mr. Borrego that a sentence of thirty-five years was
       more beneficial to him than that of life in prison, and that, given the
       facts in this case, this was probably the best outcome he could get.
       I advised Mr. Borrego to plead guilty to murder in the second
       degree.
               7. From the inception of the case, Mr. Borrego admitted his
       guilt. He was very remorseful and wanted to put the matter behind
       him. It was his decision to plead guilty to murder in the second
       degree.
               8. At his plea proceeding, the Court asked Mr. Borrego if he
       knew that he would have to serve thirty-five years of his sentence.
       Mr. Borrego affirmed he knew this fact.

According to the State, “Goodman acted properly in giving his advice to Borrego.”

       Following a hearing, the district court entered an order granting the State’s

motion for summary judgment and dismissing Borrego’s PCR application. The

court found Borrego “has not produced any credible evidence that there are

genuine issues of material fact for resolution at a trial” where “[t]he plea colloquy

clearly identifies the necessary elements to create an understanding by the Court
                                        5


that the defendant knowingly and voluntarily entered into the plea, understood

the rights and consequences associated with the plea, and that a factual basis

exists for the plea,” and where “it was said to [Borrego] on three separate

occasions during the plea colloquy and the sentencing that he would be required

to serve 70 percent of this sentence prior to any possible consideration for

parole.”

       Borrego filed a motion to reconsider,1 which the court denied. Borrego

appeals.

II.    Standard of Review

       We review postconviction proceedings for errors at law. See Perez v.

State, 816 N.W.2d 354, 356 (Iowa 2012). Everett v. State, 789 N.W.2d 151, 155

(Iowa 2010). This includes summary dismissals of applications for postconviction

relief. See Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002). However, we

conduct a de novo review of applications for postconviction relief raising

constitutional infirmities, including claims of ineffective assistance of counsel.

Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). “In determining whether

summary judgment is warranted, the moving party has the burden of proving the

material facts are undisputed. We examine the facts in the light most favorable

to the nonmoving party.” Id.

III.   Discussion

       Summary disposition of a postconviction application is authorized “when it

appears from the pleadings, depositions, answers to interrogatories, and


1
  Borrego’s motion was captioned a “motion to modify and substitute judgment”; the
court ruled on it as a motion to reconsider.
                                          6


admissions and agreements of fact, together with any affidavits submitted, that

there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law.” Iowa Code § 822.6 (2013). Disposition under this

provision is similar to the summary judgment procedure set forth in Iowa Rule of

Civil Procedure 1.981(3). See Manning, 654 N.W.2d at 559-60.

       Borrego contends his guilty plea “was not knowing, voluntary and

intelligent because plea counsel failed to advise him that he would have to serve

thirty-five years of his sentence before being paroled and that he would not

receive day-to-day credit for his jail time.” According to Borrego, these were

“genuine issues of material fact that precluded summary disposition in this case.”

The State counters an evidentiary hearing is not required where Borrego’s claim

is directly contradicted by the record.

       “A plea colloquy that covers the specific ground subsequently raised in a

postconviction relief application would normally support summary judgment on

those grounds.” Castro, 795 N.W.2d at 795; see Wise v. State, 708 N.W.2d 66,

71 (Iowa 2006) (indicating that statements made to court in plea colloquy

establish a presumption of the true facts on the record).       Where the record

directly contradicts the claim a guilty plea was unintelligent and involuntary, “the

applicant bears a special burden to establish the record is inaccurate.” See

Arnold v. State, 540 N.W.2d 243, 246 (Iowa 1995).

       In dismissing Borrego’s application for postconviction relief, the district

court detailed Borrego’s communications with the court and his attorney

regarding his plea. The court concluded:
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              The Applicant has not produced any credible evidence that
      there are genuine issues of material fact for resolution at a trial.
      The plea colloquy clearly identifies the necessary elements to
      create an understanding by the Court that the defendant knowingly
      and voluntarily entered into the plea, understood the rights and
      consequences associated with the plea, and that a factual basis
      exists for the plea based on the colloquy and the Court’s reading of
      the Minutes of Testimony. The Applicant was able to make inquiry
      during the plea. He asserted his own recitation of the facts. He
      acknowledged his responsibility associated with his conduct. And
      the Court made the finding consistent thereto that he understood
      what was occurring.
              The findings herein are further supported by the fact that
      defense counsel spoke with the Applicant pertaining to trial on the
      original charge of murder in the first degree, which would have
      resulted in life imprisonment in the event the jury found him guilty
      thereof. There is no credible evidence to support an allegation that
      the Applicant was not aware that he was poised to suffer further
      consequences more onerous in the event of trial.
              The Applicant further asserts that he was not made aware of
      the fact that he would not receive day-for-day credit against his
      sentence for the time spent in jail. He indicated that if he had
      known he was not eligible for parole for 35 years, he would not
      have pled guilty but instead would have gone to trial.
              That statement is not credible in light of the fact that he
      would have been facing life imprisonment in the event of a finding
      of guilt on the original offense. The Court further does not find it
      credible that he felt pressured to plead guilty as both he and his
      attorney indicated that on all occasions when questioned pertaining
      to the events, he acknowledged his responsibility and felt remorse.
      He spoke to law enforcement and acknowledged his responsibility.
      In fact, there was never a denial of the chain of events that lead to
      the death of the victim. Additionally, as previously stated, it was
      said to him on three separate occasions during the plea colloquy
      and the sentencing that he would be required to serve 70 percent of
      this sentence prior to any possible consideration for parole.

      Upon our review of the record, including the plea memorandum, the plea

and sentencing proceeding, and the affidavits of Borrego and his plea attorney,

we conclude Borrego was informed of and agreeable to the plea agreement he

reached with the State. Borrego signed a plea memorandum acknowledging that

the State would recommend a fifty-year sentence and that he would be denied
                                           8


parole or work release until he served seven-tenths of the maximum term of his

sentence.    Borrego’s attorney stated Borrego admitted his guilt and it was

Borrego’s decision to plead guilty to second-degree murder given the evidence

against him and the potential punishment he faced.           Borrego’s attorney also

stated the court addressed Borrego’s minimum punishment with him at the plea

hearing, and “Borrego affirmed he knew this fact.”           “Our rules of summary

judgment do not permit the nonmovant [Borrego] to rest on conclusory

allegations in the pleadings in the face of a properly supported motion for

summary judgment.” See Castro, 795 N.W.2d at 795.

       Specifically with regard to the day-to-day credit for time spent in jail, the

State agrees Borrego is entitled to credit against his sentence for each day he

spent in jail on this offense. See Iowa Code § 903A.5(1) (“An inmate shall be

deemed to be serving the sentence from the day on which the inmate is received

into the institution. If an inmate was confined to a county jail . . . at any time prior

to sentencing, or after sentencing but prior to the case having been decided on

appeal, . . . the inmate shall be given credit for the days already served upon the

term of the sentence.”); Kolzow v. State, 813 N.W.2d 731, 740 (Iowa 2012)

(applying the provision).

       Although we believe Borrego has or will receive appropriate credit for time

served (as will be discussed below), under these circumstances, we conclude

Borrego has failed to show, considering the evidence against him, he would have

elected to proceed to trial on the first-degree murder charge with the possibility of

receiving a sentence of life imprisonment. See Dempsey v. State, 860 N.W.2d

860, 868 (Iowa 2015) (noting applicant must prove both that (1) his counsel failed
                                         9


to perform an essential duty, and (2) he suffered prejudice as a result of his

counsel’s failure); State v. Straw, 709 N.W.2d 128, 136 (Iowa 2006) (noting that

to prove the prejudice prong of an ineffective-assistance-of-counsel claim in the

context of a guilty plea, the applicant must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial); see also Hill v. Lockhart, 474 U.S. 52, 60

(1985) (stating the applicant “alleged no special circumstances that might support

the conclusion that he placed particular emphasis on his parole eligibility in

deciding whether or not to plead guilty” and therefore concluding the applicant

did not satisfy the prejudice prong of his ineffective-assistance-of-counsel claim).

Accordingly, his claim of ineffective assistance on this ground fails. See State v.

Polly, 657 N.W.2d 462, 465 (Iowa 2003) (noting failure to prove either element by

a preponderance of the evidence is fatal to a claim of ineffective assistance of

counsel).

       In any event, it appears the underlying credit issue is not properly before

us.   Borrego’s challenge to day-to-day credit should first be raised in an

administrative proceeding. See Iowa Code § 822.2(f); see also State v. Millsap,

No. 08-1181, 2009 WL 2170246, at *1 n.1 (Iowa Ct. App. July 22, 2009) (“Millsap

is challenging the calculation of credit to be applied to his sentence, which may

be challenged in an administrative law action.”).      Moreover, according to the

State, “[T]he Department of Corrections record in this case shows that the

Dubuque County Sheriff has issued an affidavit of credit for time served and that

the   Department    of   Corrections   has   awarded    the   appropriate   credit.”
                                         10


Unfortunately, the affidavit was not made part of the record, but clearly it would

be fleshed out during an administrative proceeding on the issue.

       For these reasons, we affirm the district court’s ruling dismissing Borrego’s

application for postconviction relief.

       AFFIRMED.
