                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-0710
                                Filed May 25, 2016


JUSTIN JENTZ,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Dubuque County, Thomas A.

Bitter, Judge.



       Justin Jentz appeals the denial of his postconviction relief application,

alleging his trial counsel was ineffective for failing to inform him he faced a felony

charge and that, absent this failure, Jentz would have entertained the plea offers

extended by the State. AFFIRMED.



       John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant.

       Thomas J. Miller, Attorney General and, Kyle P. Hanson, Assistant

Attorney General, for appellee State.




       Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
                                           2


MULLINS, Judge.

         In February 2011, Justin Jentz was charged with operating while

intoxicated and possession of a controlled substance, the latter of which was

subject to an enhancement based on previous drug convictions.                Jentz was

found guilty of both charges in June 2012. The district court sentenced Jentz to

180 days for the operating-while-intoxicated charge and up to five years

imprisonment for the possession conviction to run concurrently. Jentz appealed

his conviction. This court affirmed his conviction but preserved an ineffective-

assistance claim Jentz raised on direct appeal. See State v. Jentz, No. 12-1619,

2013 WL 5949667, at *1 (Iowa Ct. App. Nov. 6, 2013).1 Jentz filed an application

for postconviction relief (PCR), which the PCR court denied in April 2015. In his

appeal of the PCR court’s ruling, Jentz contends his trial counsel was ineffective

for failing to inform him he faced a felony charge and that, absent this failure,

Jentz would have entertained the plea offers extended by the State.

         In order to prove an ineffective-assistance-of-counsel claim, an appellant

must show by a preponderance of the evidence that counsel (1) failed to perform

an essential duty and (2) prejudice resulted. Ennenga v. State, 812 N.W.2d 696,

701 (Iowa 2012). We can resolve ineffective-assistance-of-counsel claims under

either prong. State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015). We review

ineffective-assistance claims de novo. State v. Finney, 834 N.W.2d 46, 49 (Iowa

2013).



1
 The facts underlying the charges brought against Jentz and the procedural background
of Jentz’s conviction are set forth in this court’s prior order and are thus not restated
herein. See Jentz, 2013 WL 5949667, at *1-3.
                                          3


       It is undisputed, and the record reflects, Jentz’s trial counsel was unaware

the previous drug-conviction enhancement made the possession-of-a-controlled-

substance charge a class “D” felony rather than an aggravated misdemeanor. It

is further undisputed that Jentz’s trial counsel failed to advise Jentz he was

facing a felony and that, prior to trial, Jentz rejected offers to plead guilty to a

misdemeanor. Assuming, based on these facts, Jentz’s trial counsel failed in an

essential duty, Jentz still must prove this failure prejudiced him.

       “A defendant is entitled to the effective assistance of counsel in the plea-

bargaining process.”    Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).

Under the prejudice prong of an ineffective-assistance-of-counsel claim, Jentz

must prove “a reasonable probability that, but for the counsel’s unprofessional

errors, the result of the proceeding would have been different.”        Id. (citation

omitted). This must be shown by a preponderance of the evidence. Id. at 868-

69. “[T]o demonstrate prejudice in the plea-bargaining process ‘a [claimant] must

show the outcome of the plea process would have been different with competent

advice.’” Id. at 869 (second alteration in original) (citation omitted). Where, as

here, a defendant alleges his counsel’s ineffective assistance resulted in his

rejection of a plea offer to his detriment, the defendant must prove:

       (1) “a reasonable probability [he] would have accepted the earlier
       plea offer had [he] been afforded effective assistance of counsel”;
       (2) “a reasonable probability the plea would have been entered
       without the prosecution canceling it or the trial court refusing to
       accept it, if they had the authority to exercise that discretion under
       state law”; and (3) “a reasonable probability that the end result of
       the criminal process would have been more favorable by reason of
       a plea to a lesser charge or a sentence of less prison time.”
                                          4

Id. (alterations in original) (citation omitted).   “In establishing a reasonable

probability a claimant would have accepted the earlier plea offer had he or she

received effective assistance of counsel, a claimant must proffer more than his or

her own subjective, self-serving testimony.” Id. “Rather, a claimant must proffer

objective, corroborating evidence that his or her rejection of the plea offer was

based on counsel’s unprofessional errors, as opposed to other considerations.”

Id.

       Jentz argues he has met the first element because (1) he testified at the

PCR hearing it was likely he would have accepted the plea offer had his trial

counsel informed him he had been charged with a felony and was facing up to

five years in prison and (2) the disparity in his punishment corroborates his

statement.    See id. (“For example, the disparity between the sentence a

defendant faced and a significantly shorter sentence in the plea offer can support

a defendant’s claim of prejudice.”).

       At the PCR hearing, Jentz’s PCR counsel asked him, “Did you reject plea

offers that you would have accepted if you’d known you were facing a felony?”

Jentz responded, “Yes.” When asked again whether he would have accepted

the plea had he known he was facing a felony charge, Jentz responded, “Had I

known, I can’t say whether I would have or would not have accepted it, but I’d

have definitely took [sic] it into more consideration.    I probably would have

accepted it knowing that I was facing more time than two years.” Jentz then later

stated, “I didn’t know I was looking at the felony or the five-year sentence,

otherwise I would not have went [sic] to trial.”
                                         5


       When asked why he would have accepted the plea, Jentz reasoned a

felony “takes away my gun rights, that takes away everything.”                Jentz

subsequently admitted he had multiple prior felony convictions but argued, “I was

almost past the point where I could start applying for those things back.”

Ultimately, he concluded, “I did more prison time because of it being a felony. I

thought I was looking at two years instead of five.”

       Jentz’s PCR hearing testimony is indecisive at best. Even if his testimony

could support a “reasonable probability” he would have accepted the plea, Jentz

must provide more than his own self-serving statements. See Kirchner v. State,

756 N.W.2d 202, 206 (Iowa 2008) (finding no prejudice where the defendant

“offered no evidence to support his self-serving statement that he would have

accepted the plea deal had he known” information his trial counsel failed to

disclose). His rationale for acceptance was his desire to maintain his gun rights

and other unspecified rights—rights he had already forfeited through prior felony

convictions.

       Further, as noted by the PCR court, the requisite “reasonable probability”

is undermined by Jentz’s willingness to proceed with his PCR application even

though the State has threatened to charge Jentz as a habitual offender if the

original conviction were vacated. Prior to trial, Jentz was offered a plea deal of a

180-day jail sentence for the operating-while-intoxicated charge and a 365-day

jail sentence on the possession-of-marijuana charge, both to run concurrently. At

the time Jentz rejected this plea offer, Jentz understood he faced a maximum

two-year sentence for the possession-of-a-controlled-substance charge and six
                                          6


months for the operating-while-intoxicated charge.2 Thus, his argument is he

was willing to risk a potential two-and-a-half-year sentence but not a five-year

sentence. Yet he is now willing to risk a potential fifteen-year sentence with a

three-year mandatory minimum when he has already served his time under the

original sentence and been discharged.

       As to the second element, there is no evidence supporting “a reasonable

probability the plea would have been entered without the prosecution canceling

it.” See Dempsey, 860 N.W.2d at 869. At trial, the State admitted the plea offers

were made with the assumption that both charges Jentz faced were aggravated

misdemeanors. There is no indication in the record that the State would have

made the same offer once the possession-of-a-controlled-substance charge was

elevated to a class “D” felony by virtue of the the previous drug-conviction

enhancement.

       Jentz has failed to provide evidence beyond his own self-serving,

indecisive statements that he “probably would have” taken the plea or that the

plea would have been entered without the prosecution cancelling it. On our de

novo review, we affirm the PCR court’s denial of Jentz’s PCR application.

       AFFIRMED.

       McDonald, J., concurs; Potterfield, P.J., dissents.




2
  The record suggests he expected to earn credits and be released from incarceration in
less than a year.
                                         7


POTTERFIELD, Presiding Judge. (dissenting)

       I respectfully dissent. I would grant Jentz’s application for postconviction

relief. Jentz has shown his counsel did not inform him that he was facing a class

“D” felony drug charge rather than the aggravated misdemeanor charge he

believed he faced. Counsel breached an essential duty to Jentz in failing to

advise him of the seriousness of the charge and the prison time he faced.

       Jentz’s burden under Dempsey, then, is to show a “reasonable probability”

that (1) he would have accepted the plea offer, (2) the prosecution would not

have withdrawn the offer and the trial court would not have refused to accept it,

(3) and the end result would have been more favorable. See Dempsey v. State,

860 N.W.2d 860, 869 (Iowa 2015).

       Jentz’s testimony met the first factor to a reasonable probability when he

said he would have accepted the offer to plead guilty to a misdemeanor had he

known he was facing a felony, and he would not have gone to trial if he had

known he faced a felony. Jentz also testified under questioning that he could not

say whether he would have accepted the plea offer but he would have given it

more consideration and probably would have accepted it.

       Jentz’s burden of proof required him to testify about his thought process in

refusing the plea offer. Of course, his testimony, like that of most witnesses, is

“self-serving.” He was not indecisive, despite his one detour from his otherwise

unequivocal statements he would have accepted the plea offer, saying he

certainly would have given the offer greater consideration and probably would

have accepted it. Nor do his statements about the collateral effects of a felony

conviction disqualify his testimony—the disparity in time to be served is sufficient
                                            8


and is the point to which Jentz returns in his testimony. His testimony as a whole

is rational and sufficient for a reasonable probability.

       The disparity between the five years he unknowingly faced and the two

years he was offered is a “significantly shorter” sentence, which corroborated his

testimony. See id. at 869 (“[T]he disparity between the sentence a defendant

faced and a significantly shorter sentence in the plea offer can support a

defendant’s claim of prejudice.”).      Jentz thought the plea offer contained no

charging concession, since he and his counsel (and apparently the prosecutor)

believed the State had charged him with an aggravated misdemeanor. Jentz met

his burden on the third factor, a better outcome.

       The State did not suggest the court or the prosecutor would have

withdrawn the offer or refused the plea, a factor about which Jentz ordinarily

would not have personal knowledge.

       Finally, the majority relies on Jentz’s apparent willingness to risk an

enhanced habitual offender enhancement threatened by the State if the court

vacated his original conviction. Jentz is not required to prove he always makes

good decisions, nor that he does not have any experience with the criminal

justice system. His burden was to show misinformation about the one critical

decision—the plea offer—affected his decision in that one instance. He met his

burden to a reasonable probability.

       I would find Jentz carried his burden under Dempsey, see id., and reverse

the district court’s denial of the application for postconviction relief.
