                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0139
                             Filed October 26, 2016


ERNEST CHRISTENSEN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Osceola County, Patrick M. Carr,

Judge.



      Applicant appeals from the order denying his application for postconviction

relief. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee State.




      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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MCDONALD, Judge.

       Ernest Christensen pleaded guilty to third-degree sexual abuse, a class

“C” felony, in violation of Iowa Code section 709.4(1)(b)(2), 709.4(2) (2013).

Christensen filed an application for postconviction relief, contending his plea

counsel provided constitutionally ineffective assistance of counsel by misadvising

Christensen regarding the amount of time Christensen would be incarcerated.

The district court denied the application for postconviction relief, and Christensen

timely filed this appeal.

       Generally, we review postconviction-relief proceedings for correction of

errors at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). “However,

when the applicant asserts claims of a constitutional nature, our review is de

novo. Thus, we review claims of ineffective assistance of counsel de novo.” Id.

(citation omitted). To establish a claim of ineffective assistance of counsel, an

applicant must show (1) the attorney failed to perform an essential duty and (2)

prejudice resulted. See State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2008). In

the context of a guilty plea, an applicant must prove a reasonable probability that,

but for the alleged error, he would not have pleaded guilty and would have

insisted on going to trial. See State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006).

       On de novo review, we conclude Christensen failed to establish his plea

counsel breached an essential duty. Christensen contends that he asked his

attorney, prior to accepting the plea deal, the length of time he would be

incarcerated and that the attorney answered Christensen would serve only

eighteen months. Christensen has now served more than two years. He will not

be released until he completes a sex offender treatment program, possibly in
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2017, well past the eighteen-month period. Christensen’s plea counsel credibly

testified it was “not likely” he would have told Christensen he would serve only

eighteen months on a ten-year sentence.          Christensen’s plea counsel also

credibly testified that he generally told his clients the amount of time they would

actually serve is left to the discretion of the parole board. He also recalled having

that conversation with Christensen. The district court also explicitly informed

Christensen during the plea colloquy that the sentence was an indeterminate

term not to exceed ten years but the amount of time Christensen would actually

serve was left to the discretion of the board of parole. Christensen never raised

the issue during the plea colloquy or sentencing. Under the circumstances, we

find Christensen’s testimony not credible.

       We also conclude Christensen has not established prejudice—i.e., that he

would have proceeded to trial but for counsel’s error.          The record shows

Christensen performed a sex act (mouth to genitalia) with his thirteen-year-old

granddaughter. There was overwhelming evidence of his guilt. In addition to the

victim’s testimony, Christensen admitted his conduct to his daughter, the victim’s

mother.   He turned himself in to authorities and confessed to two sheriff’s

deputies, and the confession was digitally recorded. Christensen confessed to a

child protective investigator.   He also profanely described his conduct on a

recorded jail phone call.    He most certainly would have been convicted as

charged if the matter had gone to trial. Instead, Christensen received substantial

concessions to reduce his total criminal exposure by pleading guilty. Finally, it

appears the primary motivation for Christensen in accepting the guilty plea was

to avoid putting his family through the trauma of trial. He instructed his counsel
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to press for the best deal possible, and his counsel did so.      We conclude

Christensen failed to prove he would have proceeded to trial absent the alleged

statement by his lawyer. See State v. Weaver, No. 15-0040, 2015 WL 6509024,

at *3 (Iowa Ct. App. Oct. 28, 2015) (finding there was no reasonable probability

the defendant would have insisted on going to trial where the defendant received

substantial concessions by pleading guilty and the evidence was strong,

including the defendant’s admissions).

      AFFIRMED.
