                    IN THE COURT OF APPEALS OF IOWA

                                     No. 15-0739
                               Filed February 24, 2016


BRETT ALAN MAPLE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Jasper County, Richard B. Clogg,

Judge.




      Brett Maple appeals the district court’s dismissal of his application for

postconviction relief, asserting a claim of ineffective assistance of counsel.

AFFIRMED.




      Colin McCormack of Van Cleaf & McCormack Law Firm, LLP, Des

Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee State.




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

       Brett Maple appeals the district court’s dismissal of his application for

postconviction relief (PCR), asserting a claim of ineffective assistance of counsel.

Maple contends his trial counsel failed to advise him that, unless the sentencing

judge ordered otherwise, Iowa law required the sentence he received to run

consecutively to the sentence imposed for his parole violation. Maple claims that

had he been properly advised by counsel, he would have asked for concurrent

sentences during the plea bargaining and would never have agreed to the plea

agreement he received. We affirm.

       I. Background Facts and Proceedings.

       In November 2013, the State filed a trial information charging Maple

with: (1) possession of methamphetamine, third or subsequent offense, a class

“D” felony; (2) felon in possession of firearm or offensive weapon, a class “D”

felony; and (3) three counts of possession of prescription drug without

prescription, serious misdemeanors. The trial information additionally alleged

Maple was subject to the sentencing enhancements under Iowa Code sections

902.8 (2013) (habitual offender) and 124.411 (second or subsequent offender). 1

In December 2013, pursuant to a plea agreement, Maple pled guilty to

possession of methamphetamine and admitted it was a third or subsequent

offense. In exchange for his plea, the State agreed to dismiss the remaining

counts and enhancements.          Both parties recommended a sentence of

incarceration for a term not to exceed five years. The district court accepted the

       1
         The sentencing enhancement charges were based upon Maple’s felony
convictions in 1995, 2001, and 2006 for possession of methamphetamine with intent to
deliver.
                                          3


plea, and Maple requested the court to immediately proceed to sentencing.

Maple was sentenced to a term of incarceration not to exceed five years.

       At the time of the guilty plea and sentencing hearing, Maple was on parole

for a prior offense. At the hearing, he acknowledged he understood that a plea of

guilty could affect the status of his parole. Iowa Code section 908.10 provides, in

part: “The new sentence of imprisonment for conviction of a felony shall be

served consecutively with the term imposed for the parole violation, unless a

concurrent term of imprisonment is ordered by the court.”          But, whether the

sentence would run concurrent with or consecutive to his parole violation

sentence was not addressed at the hearing, and the written judgment entry is

silent on the matter. As a result of this new felony conviction, Maple’s parole for

his previous conviction was revoked,2 and the term imposed for the parole

violation was ordered to run consecutive to his sentence for the new felony

conviction.3

       In June 2014, Maple filed his pro se PCR application.             He alleged

ineffective assistance of counsel because he was not informed by his attorney

that his sentence would run consecutively to the sentence imposed for the parole

violation.     Maple asserted had he known his sentence would be run

consecutively to his parole violation sentence, he “never would have agreed to


       2
          Iowa Code section 908.10 also provides, in part: “When a person is convicted
and sentenced to incarceration in this state for a felony committed while on
parole, . . . the person’s parole shall be deemed revoked as of the date of the
commission of the new felony offense.”
        3
          In the “Course of Proceedings” section of his brief, Maple states he, “in
accordance with Iowa Code [section] 908.10, was later sentenced to a consecutive term
of incarceration by the parole board.” The record of Maple’s parole revocation and
imposition of a consecutive term of incarceration is not before us. The State accepts
Maple’s statement “as adequate and essentially correct.”
                                         4


the plea bargain.” He also stated had he known his sentences would be run

consecutively, he would have asked for concurrent sentences “during plea

bargaining.” The relief he sought was either vacation of the sentence and an

order for new trial, or amendment of the sentencing order to provide for

concurrent sentences.

       Maple testified in person at the March 2015 PCR hearing. He said his trial

counsel did not inform him that “when you’re on parole and . . . you catch another

felony, that it’s automatically boxcarred or run consecutive.” He said his attorney

did not inform him that his sentence “could be run either consecutive or

concurrent.” Had he known that, he would have asked for a concurrent sentence

in his plea agreement.

       Maple’s trial counsel testified by way of deposition. She knew Maple was

on parole and had told him

       that a new conviction would be grounds for a parole revocation, that
       whether his parole revocation would run concurrently or
       consecutively to any new time would be up to the parole board, that
       that was a decision for the Department of Corrections, not a
       decision for the district court to decide.

Further, she “specifically researched [the issue] to see if we could get the district

court judge to order [the sentence] concurrent, and I found through my research

that he could order it, but it wouldn’t make a difference, that the parole board

could do what they wanted.”

       In its ruling, the PCR court concluded:

       Maple’s claim fails because he cannot establish that his counsel’s
       performance was outside the normal range of competency. Maple
       failed to present any evidence that what occurred in his case fell
       outside the standard of care. Indeed, Maple’s trial counsel
                                        5


       successfully negotiated a plea agreement that substantially cut
       Maple’s exposure to a much longer term of incarceration.
                Additionally, Maple cannot establish prejudice. To establish
       prejudice, Maple must establish “a reasonable probability that, but
       for counsel’s unprofessional errors, the result of the proceeding
       would have been different.” Maple’s counsel negotiated a plea
       agreement that allowed Maple to avoid a fifteen year indeterminate
       sentence as a habitual offender with a mandatory minimum
       sentence of three years. In addition, he avoided the possibility of
       being convicted of the offenses charged in the other counts of the
       trial information which were all dismissed.
                Therefore, Maple’s claim for ineffective assistance of
       counsel fails, and his [PCR] application . . . is dismissed.

(Internal citations omitted.)

       Maple now appeals, claiming he received ineffective assistance of

counsel. He asks that his plea be revoked and the case be remanded for new

proceedings.

       II. Discussion.

       Ineffective-assistance-of-counsel claims are analyzed under the familiar

two-prong test set out in Strickland v. Washington, 466 U.S. 668, 687 (1984).

See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). To succeed on his

ineffective-assistance-of-counsel claims, Maple must prove both that (1) his

counsel failed to perform an essential duty, and (2) he suffered prejudice as a

result of his counsel’s failure. See id. “Prejudice exists where a claimant proves

‘a reasonable probability that, but for the counsel’s unprofessional errors, the

result of the proceeding would have been different.’”       Id. (citation omitted).

Because reversal is only warranted if both prongs of this test are proven by a

preponderance of the evidence, we can affirm the PCR court’s rejection of

Maple’s claims if we determine either prong is absent. See id. Our review is de

novo. Id.
                                               6


        Breach of Duty. Section 908.10 empowers a district court judge with the

choice to either order the new felony sentence to be served consecutively or

concurrently with the term imposed for the parole violation. This choice between

two alternatives implicates the court’s discretion. On appeal, Maple asserts his

trial   counsel     failed   to   perform    an    essential   duty   by   “unambiguously

misinform[ing]” him “as to the possibility of his sentences running concurrent,

and, in fact, in such advice, effectively deprived him of any ability to even request

that such sentences be run concurrent.”4             Maple was misinformed regarding

section 908.10. He was not told the sentencing court had authority to order a

concurrent term of imprisonment. Instead, his counsel told him that whether the

sentence was to run concurrent or consecutive was a decision for the parole

board, not the sentencing court.            In analyzing Maple’s ineffective-assistance

claim, we need not first determine whether his trial counsel’s performance was

deficient before examining the prejudice component of his claim. We elect to

focus our analysis on the prejudice prong of the ineffective-assistance-of-counsel

test.

        Prejudice.      On appeal Maple argues he “was clearly prejudiced by

waiving his right to a trial based on the misstatement of law provided to him by

his trial counsel.” “[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.’” Dempsey, 860 N.W.2d at 869 (quoting Lafler v. Cooper,




        4
            The State makes no response to Maple’s breach-of-duty argument.
                                           7


566 U.S. ___, ___, 132 S. Ct. 1376, 1384 (2012)).5 Specifically, to meet the

prejudice prong in this context, Maple must establish that but for his counsel’s

breach of duty, he would not have pled guilty and would have instead elected to

stand trial. See State v. Utter, 803 N.W.2d 647, 654 (Iowa 2011). Furthermore,

“‘conclusory claims of prejudice’ are not sufficient to satisfy the prejudice

element.” State v. Tate, 710 N.W.2d 237, 241 (Iowa 2006) (citation omitted).

       Maple claims had he been properly advised, his decision making on the

plea would have been different. He “would have asked for concurrent sentences

at plea bargaining” and would have argued for concurrent sentences to the court.

He says he “never would have agreed to the plea bargain.” These assertions do

not satisfy the prejudice prong, for nowhere—not in his PCR application, not in

his testimony at the PCR hearing, and not in his appellate brief—does Maple

assert that had he been properly advised, he would have not pled guilty and

would instead have insisted on standing trial. Without such an assertion, Maple

does not establish the prejudice prong of the ineffective-assistance-of-counsel

test. See Utter, 803 N.W.2d at 654.

       Even if such an assertion could be teased out of Maple’s filings and

testimony, he has not established a reasonable probability that, but for his

counsel’s misinformation, he would not have pled guilty. Maple faced two class

“D” felony charges, with a potential five-year sentence for each charge; three

serious misdemeanor charges, with a potential one-year sentence for each

charge; a habitual offender sentencing enhancement, requiring service of a

       5
        Prejudice is presumed in cases of a breach of plea agreement by the State and
where there is no factual basis for the plea. See, e.g., State v. Lopez, 872 N.W.2d 159,
170 (Iowa 2015); Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014).
                                         8


minimum of three years confinement before becoming eligible for parole; and a

fifteen-year second or subsequent offender sentencing enhancement. As a part

of the plea agreement, the State agreed to dismiss one felony charge, as well as

the serious misdemeanor charges and the sentencing enhancements; thus, by

pleading, Maple avoided the potential imposition many additional years of

incarceration.   Under all the circumstances presented to us, we find no

reasonable probability that had Maple been informed the sentencing court had

discretion to order a concurrent sentence, he would have rejected the favorable

plea agreement and would instead have insisted on going to trial. Again, Maple

has failed to establish the prejudice prong of the ineffective-assistance-of-

counsel test. See, e.g., State v. Hallock, 765 N.W.2d 598, 606 (Iowa Ct. App.

2009) (finding no prejudice where defendant accepted favorable plea agreement

that avoided mandatory minimum and lifetime supervision).

      Because we find Maple has not established the prejudice prong of his

ineffective-assistance-of-counsel claim, we affirm the district court’s dismissal of

Maple’s PCR application.

      AFFIRMED.
