                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-2194
                               Filed June 3, 2020


ROGER JAMES CHESHIRE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.



      The applicant appeals the district court decision denying his application for

postconviction relief. AFFIRMED.




      Marc A. Elcock, Osceola, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee State.




      Considered by Bower, C.J., Schumacher, J., and Danilson, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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DANILSON, Senior Judge.

       Roger Cheshire appeals the district court decision denying his application

for postconviction relief. We conclude Cheshire has not shown he was prejudiced

by defense counsel’s performance. We find the district court properly rejected

Cheshire’s claim of ineffective assistance of defense counsel. We do not address

Cheshire’s claim of ineffective assistance of postconviction counsel.

       I.     Background Facts & Proceedings

       Cheshire was charged with sexual abuse in the second degree, assault with

intent to commit sexual abuse, and two counts of indecent contact with a child. He

entered into a plea agreement in which he agreed to plead guilty to lascivious

conduct with a minor, in violation of Iowa Code section 709.14 (2005), and indecent

exposure, in violation of section 709.9.

       Cheshire’s written guilty plea states:

       In order to establish a factual basis, I ask the court to accept as true
       the minutes of testimony, the date of the offense was: Nov. 1, 2003–
       Dec. 1, 2005 and I admit I did the following: I was over 18 years old
       and in a position of authority over J.B., a minor under the age of 12,
       and I persuaded J.B. to remove her clothes so that I could touch her
       genital area. I did this for the purposes of satisfying my sexual
       desires. On another occasion, I exposed my penis to J.B. for the
       purpose of satisfying my sexual desires and knowing that it would be
       offensive for J.B. to see.

Cheshire initialed this paragraph. The written guilty plea also states, “Unless I am

granted a deferred judgment, I will be subject to a special sentence of ten (10)

years beginning after I complete my probation, prison, or jail sentence.” Cheshire

signed the written guilty plea and the court accepted the plea.

       Cheshire was sentenced to a term of imprisonment not to exceed one year

on each charge, to be served consecutively. The sentences were suspended, and
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Cheshire was placed on probation for one year. In addition, he was given a special

sentence under section 903B.2 for a term of ten years and ordered to register as

a sex offender.

       Cheshire appealed his conviction, claiming the special sentence was

improperly imposed because he was convicted for conduct that occurred before

the effective date of section 903B.2 on July 1, 2005. See 2005 Iowa Acts ch. 158,

§ 40; see also Iowa Code § 3.7(1). We determined Cheshire pled guilty to conduct

occurring between November 1, 2003, and December 1, 2005, which meant he

pled guilty to conduct occurring after July 1, 2005. State v. Cheshire, No. 15-1763,

2016 WL 6396341, at *2 (Iowa Ct. App. Oct. 26, 2016). Furthermore, the written

guilty plea stated that unless Cheshire was granted a deferred judgment, he would

be subject to a special sentence for ten years. Id. We concluded “the imposition

of the ten-year special sentence of supervision under Iowa Code section 903B.2

was not illegal under the circumstances presented here.” Id. at *3. We affirmed

Cheshire’s convictions. Id. at *4.

       On September 22, 2017, Cheshire filed an application for postconviction

relief. He asked to have the special sentence overturned but requested to keep

the benefit of the remainder of his guilty plea. He asserted he was unaware the

special sentence did not apply to offenses committed before July 1, 2005. He

stated the offenses occurred in October 2004. Cheshire stated defense counsel

should have specified the date of the offenses was before July 1, 2005, so he

would not be subject to the special sentence. The district court denied Cheshire’s

request for postconviction relief. He now appeals.
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       II.    Standard of Review

       We conduct a de novo review of claims of ineffective assistance of counsel.

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of

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

perform an essential duty and (2) prejudice resulted. Id. A defendant’s failure to

prove either element by a preponderance of the evidence is fatal to a claim of

ineffective assistance. See State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

       III.   Ineffective Assistance

       A.     Cheshire asserts that he received ineffective assistance because

defense counsel did not adequately advise him concerning the penalties

associated with his guilty plea. Cheshire asserts that if he had known about the

applicability of the special sentence, “he would have made the necessary

corrections to the dates used in the plea.” He asks to have his special sentence

removed.

       In order to prevail, Cheshire would need to show “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.” State v. Straw, 709 N.W.2d 128, 138 (Iowa

2006). “[A] claimant must proffer more than his or her own subjective, self-serving

testimony” to establish prejudice. Dempsey v. State, 860 N.W.2d 860, 869 (Iowa

2015). “Rather, a claimant must offer objective, corroborating evidence” a decision

“was based on counsel’s unprofessional errors, as opposed to other

considerations.” Id.

       There is no evidence to show Cheshire would have insisted on going to trial

but for defense counsel’s advice. Cheshire never stated he would have preferred
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to go to trial if he had known of the correlation between the dates of the offense

and the imposition of a special sentence. To the contrary, at the postconviction

hearing, Cheshire testified he did not want the court to overturn the guilty plea. He

asked to have the guilty plea left intact except for the removal of the special

sentence. In essence, Cheshire desires to pick and choose the parts of the plea

agreement he now finds acceptable. However, Cheshire is not free to unilaterally

withdraw from a plea agreement or modify it. See State v. Beres, ___ N.W.2d ___,

___, 2020 WL 2502212, at *10 (Iowa 2020) (concluding a plea agreement is a

contract and it may not be unilaterally modified).

       Moreover, there is no evidence to show the State would have entered into

the same plea agreement, minus the special sentence. Cheshire had a previous

conviction for a sexually predatory offense and so would have been subject to a

sentencing enhancement if convicted of the original charges. Defense counsel

successfully negotiated a plea agreement in which he pled guilty to reduced

charges of lascivious conduct with a minor and indecent exposure, received no

prison time, and was placed on probation for one year, in addition to the ten-year

special sentence.

       Cheshire also initialed the paragraph that stated the offenses occurred

between November 1, 2003, and December 1, 2005, and signed the agreement

as a whole. If Cheshire did not consent to the terms of the agreement, such as the

possibility of the imposition of a special sentence, he could have tried to negotiate

a different plea agreement or decide to not sign the agreement. Cheshire accepted

the plea agreement knowing he could be subjected to a special sentence.
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       We also note Cheshire did not raise his claim that the offenses occurred in

October 2004 until the postconviction hearing.         He did not offer objective,

corroborating evidence of his claim. See Dempsey, 860 N.W.2d at 869. The victim

was unable to state precisely when the offenses occurred.

       Overall, we find Cheshire’s complaints arise more from “buyer’s remorse”

than with a problem in his plea agreement. See Hartnell v. State, No. 03-1873,

2005 WL 291538, at *6 (Iowa Ct. App. Feb. 9, 2005) (“We find Hartnell’s claim that

he would have insisted on going to trial is not based on any defect in the plea

colloquy or trial counsel’s failure to challenge it, but rather was provoked by

‘buyer’s remorse’ for the minimal leniency his waiver of trial produced.”).

       We conclude Cheshire has not shown he was prejudiced by defense

counsel’s performance. There is no reason to consider the question of whether

counsel failed to perform an essential duty where Cheshire only sought to modify

his plea agreement. There is no evidence he “would not have pleaded guilty and

would have insisted on going to trial.” See Straw, 709 N.W.2d at 138. We find the

district court properly rejected Cheshire’s claim of ineffective assistance of defense

counsel.

       B.     Cheshire also claims he received ineffective assistance of

postconviction counsel. He asks to have this issue preserved, as the present

record is not adequate to address his claim. This claim must be raised in a

separate application for postconviction relief. See Goode v. State, 920 N.W.2d

520, 527 (Iowa 2018).

       We affirm the decision of the district court.

       AFFIRMED.
