                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0216
                             Filed October 28, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KRISTINA SHINDELAR,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Winneshiek County, Margaret L.

Lingreen, Judge.



      Defendant appeals the district court order revoking her probation and

sentencing her. AFFIRMED.



      Mark C. Smith, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Jean C. Pettinger,

Assistant Attorneys General, and Andrew F. Vandermaaten, County Attorney, for

appellee.



      Considered by Doyle, P.J., Mullins, J., and Sackett, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SACKETT, Senior Judge.

      Defendant Kristina Shindelar, also known as Kristina Grotegut, appeals

the district court order revoking her probation and sentencing her. Shindelar has

not shown she received ineffective assistance because her defense counsel

permitted her to admit to violating the terms of the probation agreement when

there was not a factual or legal basis to show she had violated the agreement.

Also, she has not shown she was denied her right to allocution during

sentencing.

I.    Background Facts and Proceedings

      Shindelar was charged with sexual abuse in the third degree, a class “C”

felony, in violation of Iowa Code section 709.4(2)(c)(4) (2011). She pled guilty to

the charge.   The court granted her a deferred judgment and placed her on

probation for one to two years.

      On March 26, 2013, the court scheduled a probation-violation hearing

based on a report Shindelar violated her probation as follows: (1) violating her

curfew three times in May 2012; (2) violating her curfew on June 17, July 23,

September 16, and September 17, 2012; (3) being unavailable for telephone

contact by her probation officer on September 18, 2012; and (4) failing to attend

the Moving-On Women Offender Program on October 5, 2012,.

      On June 24, 2013, the State claimed Shindelar had violated her probation

by: (1) failing to attend the Moving-On Women Offender Program on May 17 and

June 7, 2013; (2) not staying current in paying her court-ordered fines; and (3)

not cooperating with a scheduled maintenance polygraph.
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      On December 23, 2013, the State also claimed Shindelar had violated her

probation by: (1) failing to attend scheduled maintenance polygraphs on August

28 and November 27, 2013; (2) not returning from a trip to a neighboring county

in a timely manner; and (3) renting a home from Terry Grotegut, who was on

probation.   Moreover, on January 6, 2014, the State claimed Shindelar had

violated her probation when she was terminated from her employment due to

excessive absenteeism.

      The probation-revocation hearing was held on January 14, 2014. The

court asked Shindelar about each of these incidents and questioned whether she

had violated the terms of the probation agreement. Shindelar acknowledged

each of the incidents and stated they constituted a violation of the rules of the

probation agreement. The court found she was in violation of the terms and

conditions of her probation.

      Shindelar’s deferred judgment and probation were revoked.        She was

sentenced to a term of imprisonment not to exceed ten years.          The court,

however, suspended her sentence and placed her on probation for three to five

years. She was also given a special sentence pursuant to Iowa Code section

903B.1. Shindelar now appeals.

II.   Ineffective Assistance

      Shindelar claims she received ineffective assistance because her defense

counsel permitted her to admit to violating the terms of the probation agreement

when there was not a factual or legal basis to show she had violated the

agreement.    She asserts the incidents raised by the State did not constitute
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actual violations of the probation agreement. While she admits to the conduct

alleged in the reports, she claims her conduct was not a violation of the probation

agreement. She contends that if she had admitted to fewer violations, the court

may not have revoked her deferred judgment.

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) the attorney failed to perform

an essential duty, and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A defendant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

       Generally, claims of ineffective assistance of counsel are considered in

postconviction-relief proceedings.    State v. Gaskins, 866 N.W.2d 1, 5 (Iowa

2015). We resolve such claims on direct appeal only if the record is adequate to

address the claim. Id. We conclude the record is adequate to address the

claims raised by Shindelar in this direct appeal.

       “Probation revocation is a civil proceeding and not a stage of criminal

prosecution.” State v. Lillibridge, 519 N.W.2d 82, 83 (Iowa 1994). Therefore, the

rules of criminal procedure do not apply. Id. In order to revoke a defendant’s

probation, the court “must make findings which show the factual basis for the

revocation.” Rheuport v. State, 238 N.W.2d 770, 775 (Iowa 1976). The State

must establish a violation of the probation agreement by a preponderance of the

evidence. State v. Dolan, 496 N.W.2d 278, 280 (Iowa Ct. App. 1992). “Proof
                                          5



beyond a reasonable doubt is not required.” State v. Kirby, 622 N.W.2d 506, 511

(Iowa 2001).       A defendant’s probation may not be revoked “arbitrarily,

capriciously, or without any information.” State v. Hughes, 200 N.W.2d 559, 562

(Iowa 1972). A defendant’s admission of guilt is sufficient to establish a factual

basis. Dolan, 496 N.W.2d at 280.

       Rule 7 of the probation agreement required that Shindelar:

       7.      Will initiate and maintain specific contact with the probation
       officer and will submit a written report as required; will notify the
       probation officer in advance if an appointment cannot be kept.
       Contacts include home visits. Will not lie to, mislead, or misinform
       the probation officer either by statement or omission of information.

The reports state Shindelar’s telephone was unable to take calls on September

18, 2012, so she was unable to maintain contact with her probation officer.

Shindelar misled or misinformed her probation officer when she stated she was

renting a home from the State, when in fact she was renting from Terry Grotegut.

Both of these incidents constitute a violation of rule 7.

       Rule 8 of the probation agreement required that Shindelar, “Will actively

cooperate with and participate in any referral programs as directed by the

probation officer.”   Shindelar missed her scheduled group meetings with the

Moving-On Women Offender Group on October 5, 2012, May 17, 2013, and June

7, 2013. Shindelar was not cooperative with a scheduled maintenance polygraph

on June 19, 2013, and missed her appointments for scheduled maintenance

polygraphs on August 28 and November 27, 2013.              All of these incidents

constitute a violation of rule 8.
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       Shindelar’s probation agreement also contained the condition, “Will avoid

associations with those individuals whom the probation officer deems to be

detrimental to the probation.”    The reports state Shindelar was informed in

October 2013 she was not to have contact with Terry Grotegut because he was

on probation. In December 2013, however, Shindelar’s probation officer learned

she was renting a home from Terry Grotegut. Her conduct constitutes a violation

of this special condition of the probation agreement.

       The record shows Shindelar violated rule 7, rule 8, and the provision that

she not associate with individuals who would be detrimental to her probation.

We determine Shindelar has failed to show defense counsel breached an

essential duty by permitting her to admit to these violations, as they are

supported by the record.

       Based on our findings on these grounds, we do not address the issue of

whether Shindelar’s conduct violated any additional rules of the probation

agreement. Even without consideration of the other rules, the record shows she

had multiple violations of the probation agreement. She has not shown the result

of the proceeding would have been different if she had admitted to a fewer

number of violations. We conclude she has not shown she received ineffective

assistance of counsel.

III.   Allocution

       Shindelar contends the district court abused its discretion by failing to

allow her to exercise her right to allocution.     Under Iowa Rule of Criminal

Procedure 2.23(3)(d), before a defendant is sentenced, “counsel for the
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defendant, and the defendant personally, shall be allowed to address the court

where either wishes to make a statement in mitigation of punishment.” The right

of allocution is personal to the defendant. State v. Nosa, 738 N.W.2d 658, 660

(Iowa Ct. App. 2007).

       After the parties agreed to go forward with sentencing at the probation

revocation hearing, the court stated, “And I’ll also certainly give you a chance, I

guess, to tell me Ms. Shindelar, if there’s anything you have to say.” Some

further discussion ensued, then the court stated, “Again, do either counsel have

further recommendation for disposition beyond the recommendation jointly made

to this Court?” Defense counsel and the prosecution responded in the negative.

The court asked, “Ms. Shindelar, is there anything you want to—to tell me or

state?” She replied, “No, Your Honor.” We conclude Shindelar was not denied

her right to allocution.

       We affirm the decision of the district court.

       AFFIRMED.
