                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0492
                            Filed December 24, 2014

RANDY L. BLANCHARD,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

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

Lingreen, Judge.



      Blanchard appeals the denial of his application for postconviction relief.

AFFIRMED.



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

      Randy L. Blanchard, Anamosa, appellant pro se.

      Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant Attorney

General, W. Patrick Wegman, County Attorney, and Denise Timmons, Assistant

County Attorney, for appellee.



      Considered by Danilson, C.J., McDonald, J., and Sackett, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
                                        2



SACKETT, S.J.

      Randy Lee Blanchard was convicted of first-degree murder, in violation of

Iowa Code section 707.2(5) (2007), and child endangerment resulting in death, in

violation of Iowa Code section 726.6(4), following the death of his infant

daughter. He filed an application for postconviction relief contending his trial

attorney was ineffective in a number of ways. He appeals, contending the district

court erred in denying his application. We affirm.

      BACKGROUND EVIDENCE. Aliya, the victim, was born on January 30,

2008, by Caesarian section at the Waverly Municipal Hospital to Annette Eilderts.

Blanchard is the child’s biological father. He and Eilderts were not married and

were living together at the time in Nashua, Iowa. Eilderts’s five-year-old son also

lived in the home. Aliya left the hospital for the Blanchard-Eilderts home on

Saturday, February 2, 2008. Her mother had been released two days earlier.

      The day after the child came home was Super Bowl Sunday. A friend of

Blanchard’s, Rod Swartz, and Blanchard’s mother and stepfather were visitors in

the home that Sunday.      During the course of the afternoon Eilderts had a

problem that caused her to seek medical advice at a nearby hospital. Swartz

stayed with the children while Blanchard took Eilderts to a nearby hospital. They

returned later that day.    Swartz slept in the Eliderts-Blanchard home that

evening.

      Blanchard started a new job the following Monday, February 4.           The

couple had only one car, so Eilderts drove Blanchard to his job, Swartz to a

requested destination, and her son to school. Eilderts picked Blanchard up from
                                         3



work that afternoon. In the evening the couple and the infant fell asleep in the

same bed. They both admitted they had been drinking, and Eilderts was also

taking strong pain pills to relieve the discomfort of her Caesarian section delivery.

       Aliya was still sleeping in a bed with Blanchard and Eilderts when at 3:00

a.m. on Tuesday, February 5, 2008, the child woke. She had awakened earlier,

and Eilderts had taken care of her needs then. This time Blanchard got up to

feed her, ultimately bringing the infant back to the couple’s bed. At the time, he

had changed her clothing. He was to contend that while giving her a bottle the

child seemed to be chocking and he put a finger in her throat, which caused her

to bleed. Eilderts testified Blanchard told her that the child had vomited and that

was the reason for the change of clothes. Eilderts testified that while Blanchard

was up with the child she heard Blanchard tell the child to “shut up” and then she

heard a sound like something hitting a glass coffee table. Blanchard contends

that he believed the child to be chocking and he put his hand down her throat in

an attempt to remove any obstruction and she bled a bit.

       Eilderts woke Tuesday morning between five and five-thirty as Blanchard

was getting ready for work. He left for work apparently before six o'clock taking

the couple’s only car. He called that morning to check on Aliya at about 7:30 as

Eilderts was getting her son ready for school. Blanchard contends while he was

on the telephone with Eilderts he heard Aliya crying loudly. Eilderts testified Aliya

was unresponsive that morning and would not take a bottle but acknowledged

that she did cry when Blanchard called home.
                                          4



       After the call from Blanchard, Eilderts walked with her son to his school a

block or a block and a half from her residence and then returned home. She took

Aliya with her.   Blanchard returned home mid-morning.          Aliya had a seizure

shortly thereafter, and the couple took her first to the hospital in Charles City and

then to Covenant Clinic in Waterloo. She subsequently was taken to Mayo Clinic

in Rochester, Minnesota, where after an initial examination a doctor diagnosed

her as having had suffered blunt force trauma to her head and vigorous shaking.

The doctor found no evidence of external injury. Aliya was declared brain dead

on Saturday, February 9, and died after being taken off life support on Monday,

February 11. Numerous doctors saw the child and a number of possible reasons

for her condition were ruled out.

       Both parents were questioned and gave statements after Aliya was

hospitalized in Rochester. Jack Lioa and Scott Reger, agents with the Iowa

Division of Criminal Investigation, came to the hospital.       Blanchard was first

interviewed at the hospital. He was given no Miranda warning, and he did not

ask to speak with an attorney. Blanchard testified he had little sleep at the time

and was of the belief that if he told investigators he would not talk to them or tried

to leave, he would be arrested.

       Blanchard had a second interview at Olmstead County jail in Rochester,

Minnesota, and again received no Miranda warnings beforehand.                He also

testified he believed that if he had tried to leave, he would have been arrested.

Blanchard made some incriminating statements during the interviews.               He
                                        5



admitted he had shaken the baby and possibly dropped her on a sofa. He was

allowed to leave after each session.

      An autopsy was done by Eric Pfeifer, M.D., and the doctor determined the

child’s cause of death was blunt force trauma to the head with blunt force injury

to the brain. The doctor confirmed she had bleeding in the brain, multiple bruises

along the base of her spine, and a fractured skull. He also confirmed the optic

nerve had incurred a sheath hemorrhage that is consistent with inflicted head

trauma. The doctor ruled out a list of other possible causes of death.

      Blanchard was charged by trial information on February 21, 2008, with

first-degree murder, a Class “A” felony, in violation of Iowa Code sections

707.2(4) and 726.6(4).     On April 1, 2008, attorney David F. Staudt of the

Waterloo Public Defender’s Office filed a waiver of the right to a speedy trial on

Blanchard’s behalf, and on November 10, 2008, he asked for additional time to

file pretrial motions and defenses. The motions were granted and a trial date

was continued to May 18, 2009.

      On February 17, 2009, Blanchard signed and filed a waiver of right to jury

trial. The waiver by Blanchard acknowledged he knew he had statutory and

constitutional rights to trial by jury and he had been advised of the ramifications

of waiving the right. He was advised that in assessing the waiver the court would

inform him that twelve members of the community compose a jury, he could take

part in jury selection, jury verdicts must be unanimous, the court alone decides

guilt or innocence if he waives a jury trial, and that the court will determine
                                           6



whether he is under the erroneous impression he will be rewarded by either the

court or the prosecution for waiving a jury trial.

        On the same day the waiver was filed, Blanchard appeared in district

court. Staudt indicated Blanchard was waiving a jury trial, and the district court

reviewed with Blanchard the rights he was giving up. The court then addressed

Staudt, indicating that under State v. Stallings, 658 N.W.2d 106, 108 (Iowa

2003), overruled on other grounds by Feregrino, 756 N.W.2d at 708, some

record needed to be made as to the benefits Blanchard would receive by waving

a jury trial.

        Staudt responded, telling the court that there were a number of things he

could discuss that he thought would involve attorney-client privilege but there

were additional factors relating to five medical doctors who would testify about

complicated issues concerning the death of a baby and the causes and timing

and medical conditions.      Staudt indicated he believed the court may have a

better understanding of the issues and facts than would a jury. After making

certain findings, the court granted Blanchard’s request that the jury be waived

and ordered that the case would proceed to a bench trial.

        Also on February 17, 2009, the State filed an extensive motion in limine

and a request for ruling on the admissibility of Blanchard’s prior bad acts. The

hearing was held on March 3, 2009. The district court filed a written ruling on

March 9, 2009, addressing the matters it had considered at the hearing. Among

other things, the court addressed the State’s claim that evidence of Blanchard’s

1997 conviction for child endangerment was admissible. That charge was the
                                         7



result of a January 14, 1997 incident where Blanchard admitted to twisting and

grabbing a three-month-old infant’s legs, breaking one leg. In its ruling on the

question of admission of Blanchard’s guilty plea, the court noted the guilty plea

may be relevant to any claim the alleged victim’s injuries were accidental. The

court held the probative value of the evidence was outweighed by the danger of

unfair prejudice and the evidence should not be introduced at trial. It went on to

say that it would not consider the conviction in determining Blanchard’s guilt.

       Apparently Blanchard filed no pretrial motions; if he did, they are not at

issue. The bench trial began on March 18, 2009. It was suspended because of

court furloughs on March 20, 2008, and reconvened on March 23, 2009. The

evidence was concluded on March 25, 2008. Blanchard did not testify at trial. In

its ruling, the court made extensive findings of fact and found Blanchard guilty of

murder in the first degree, in violation of lowa Code section 707.2(5), and of child

endangerment resulting in death, in violation of section 726.6.

       On March 8, 2009, Blanchard filed a motion for new trial raising a number

of issues, and on May 26, 2009, the district court denied the motion. Blanchard

appealed, contending there was insufficient evidence to support his conviction

and that based upon principles set forth in State v. Heemstra, 721 N.W.2d 549

(Iowa 2006), the murder conviction could not stand. The matter was transferred

to this court, which denied his claims on both issues and affirmed his convictions.

State v. Blanchard, No. 09-0871, 2010 WL 2089222, at *6 (May 26, 2010).

       Blanchard subsequently filed the petition for postconviction relief that

leads to this appeal. He alleged his trial attorney was ineffective in a number of
                                          8



ways including: (1) not requesting a jury trial, (2) advising him not to testify, (3)

failing to request an alibi instruction, (4) failing to call his mother, Sherry Hanson,

to testify to admissions Eilderts made to her, (5) failing to obtain a copy of a

statement given by Eilderts to the police, (6) failing to make a record of judicial

bias at trial, (7) failing to request a new trial, (8) failing to claim double jeopardy

based on a conviction of child endangerment and murder in the first degree, (9)

failing to require a new trial because the verdict was contrary to the evidence,

and (10) failing to seek suppression of statements he made to law enforcement

officers. The district court denied Blanchard’s petition in all respects except to

file a separate order setting aside the sentence on the charge of child

endangerment resulting in death.

       ISSUES ON APPEAL. In appealing the denial of postconviction relief,

Blanchard contends his trial counsel was ineffective in failing to: (1) file a motion

for a new trial, (2) advise him to request a jury trial, (3) call his mother as a

witness, (4) challenge the district court’s finding he voluntarily waived his right to

a jury trial, and (5) file a motion to suppress statements he made to law

enforcement prior to his arrest.

       INEFFECTIVE ASSISTANCE OF COUNSEL.                      Claims of ineffective

assistance of trial counsel are judged using a two-pronged test. See Ledezma v.

State, 626 N.W.2d 134, 141 (Iowa 2001); Osborn v. State, 573 N.W.2d 917, 922

(Iowa 1998).     To establish deficient performance, the applicant must prove

counsel failed to raise an issue a reasonably competent counsel would have

raised. Ledezma, 626 N.W.2d at 141. However, “[s]electing assignments to
                                         9



assert as grounds for reversal is a professional judgment call [courts] are

reluctant to second-guess.” Osborn, 573 N.W.2d at 922. To prove an attorney’s

deficient performance resulted in prejudice, the applicant must show the

underlying claim would have prevailed if it had been raised. See Ledezma, 626

N.W.2d at 141. Consequently, we review the merits of the underlying claim to

determine whether Blanchard’s trial counsel was ineffective. See id. at 141-42.

We recognize counsel has no duty to raise an issue that has no merit. See State

v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009). We review ineffective-assistance-

of-counsel claims de novo. See Ledezma, 626 N.W.2d at 141.

      1. FAILURE TO FILE A MOTION FOR NEW TRIAL. Blanchard contends

that his trial counsel had a duty to file a motion for new trial based on the

argument that the verdict was contrary to the evidence. The postconviction court

found that Blanchard’s trial counsel had no basis to file such a motion. The State

argues that the record shows Blanchard’s attorney filed such a motion and it was

denied. The State further argues that Blanchard’s attorney had no obligation to

file such a motion because the verdict was not contrary to the weight of the

evidence.

      The record reflects that a motion for new trial was filed seeking relief on

the basis that the evidence was insufficient to support the court’s verdict, and on

May 26, 2009, the district court denied the motion. Furthermore, this court on

direct appeal found on review of the evidence and the district court’s finding

determined that “there is substantial evidence to support Blanchard’s

convictions.” We affirm on this issue.
                                          10



         2. WAVIER OF JURY TRIAL.           Blanchard contends the postconviction

court erred on February 17, 2009, when it made a finding he had knowingly and

intelligently waived his right to a jury trial, entered a written waiver, and

addressed the court on the record. It is clear that Blanchard signed a waiver that

gave him the information as to the effect of the waiver. Furthermore, the State

claims, and we agree, that the district court also verbally gave the necessary

information to Blanchard. However, even if the court failed to do so, Blanchard

must show prejudice in order to succeed on a claim of ineffective assistance of

counsel based on a lack of a knowing and voluntary waiver of the right. See

Feregrino, 756 N.W.2d at 708; State v. Straw, 709 N.W.2d 128, 137-38 (Iowa

2006).

         Blanchard’s attorney testified in the postconviction proceedings that he felt

Blanchard had a better chance for an acquittal if the case were tried to the court.

He further said he felt the court’s knowledge of Blanchard’s prior conviction

would not make a difference, alluding to the court’s assertion that it would not

take the prior conviction into consideration.       He also testified that he was

concerned that if there were a jury trial and Blanchard testified, the jury may have

become aware of the prior conviction.

         Blanchard points out that only after he waived the jury trial did the court

rule the evidence was not admissible because its probative value outweighed its

prejudicial effect. He argues that had there been a jury trial, the jury would not

have known of the prior offense but that the court did know all the facts of it and

found it prejudicial. Blanchard contends that while his attorney accepted the fact
                                          11



that the court would not consider the prior offense, it is a “legal fiction” to believe

his earlier conviction for child endangerment “would not work upon or influence”

the court. He also argues that the court may have taken this conviction into

consideration because of a remark the court made at the time of sentencing.

               THE COURT: At the conclusion of the last hearing Mr.
       Blanchard, you told me that I’m a biased judge.
               THE DEFENDANT: You are.
               THE COURT: I am biased against people who take the lives
       of children.

       The State argues that Staudt was not ineffective because its request to

admit evidence of Blanchard’s prior convection was not made until after the ruling

providing for trial to the court because at the time of the waiver, the court did not

know of the prior incident where Blanchard pled guilty to a charge of child

endangerment on January 30,1998.1 On February 17, 2009, the State filed a

motion seeking, among other things, a pretrial ruling of admissibility of certain

evidence.    On March 10, 2009, the court ruled on the motion, finding that

Blanchard had pled guilty to assault of a small child and this evidence may be

relevant to an argument Blanchard made that the injuries to the child here were a

result of an accident. The court then went on to rule that even if relevant, the

evidence was not admissible as the probative value was far outweighed by its

prejudicial effect, finding any evidence of Blanchard’s prior bad acts—including

the conviction of child endangerment in 1997—inadmissible.

       The State further contends that Staudt could not be deemed ineffective for

not later invoking Blanchard’s right to a jury trial because the trial court had


1
  The motion was filed the same day as the waiver was made and accepted by the
court.
                                           12



agreed not to take the prior conviction into consideration.      The State further

points out that nothing in the district court’s ruling shows the court took that

evidence into consideration.

       The adequacy of a jury-trial waiver is a mixed question of law and fact,

which we review de novo.           Feregrino, 756 N.W.2d at 703.        We review

Blanchard’s claim with regard to a jury trial in view of the great solicitude of

courts for jury trials. Stallings, 658 N.W.2d at 106. We are mindful that the

district court’s ruling on a jury waiver is a matter vested in the courts sound

discretion. Feregrino, 756 N.W.2d at 703

       The State argues that the court made it clear it would not take the

information into consideration.      Blanchard argues that the facts of the 1997

conviction would work upon the court’s mind. He further argues that the record

shows that the court may have taken his prior conviction into consideration

because it said in sentencing Blanchard said that it was biased against parents

that harm their children in response to Blanchard’s charge that the court was

biased.    He also contends that once the court ruled to prohibit the prior

conviction, trial counsel was within its ability to reassert the jury trial right on

Blanchard’s behalf and should have reasserted it.

       The court said it would not consider the conviction, and a careful reading

of the decision convicting Blanchard makes it clear it based its determination on

the facts elicited at trial and not on the prior conviction.

       As to Blanchard’s charge the court showed its prejudice when it made the

statement regarding people who injure children, we find it may have been ill-
                                         13



advised, but it is not sufficient to show the court considered the earlier conviction

in making a finding of guilt for the statement was not made until the sentencing

hearing, and having been convicted for first-degree murder, Blanchard’s

sentence was set by statute. We affirm on this issue.

       3. STATEMENTS TO LAW ENFORCEMENT. Blanchard was charged

with the child’s murder after he gave two statements regarding his action to the

police. He did not to testify. No objections were made at trial to the admission of

his two statements. Blanchard contends his trial counsel was ineffective in failing

to file a motion to suppress these statements.           The State contends the

statements were voluntary. Blanchard contends neither waiver was voluntary, he

was in custody at both times, and he was not informed of his Miranda rights.

       The Miranda warnings protect a suspect’s Fifth Amendment right against

self-incrimination “ensuring that a suspect knows that he may choose not to talk

to law enforcement officers, to talk only with counsel present, or to discontinue

talking at any time.” Colorado v. Spring, 479 U.S. 564, 574 (1987). Because the

defendant’s appeal of a motion to suppress implicates constitutional issues, our

review is de novo.    State v. Morgan, 559 N.W.2d 603, 606 (Iowa 1997).            If

Blanchard’s trial attorney had challenged the admission of Blanchard’s

statements, the State would have been required to prove Blanchard was

adequately informed of his Miranda rights, understood them, and knowingly and

intelligently waived them.   See Moran v. Burbine, 475 U.S. 412, 421 (1986)

(“[T]he waiver must have been made with a full awareness of both the nature of

the right being abandoned and the consequences of the decision to abandon it.”);
                                       14



Morgan, 559 N.W.2d at 606.        The State would also be required to prove

Blanchard gave his statement voluntarily. See Morgan, 559 N.W.2d at 606. The

State would have had to prove by a preponderance of the evidence that

Blanchard knowingly, intelligently, and voluntarily waived his Miranda rights. See

State v. Ortiz, 766 N.W.2d 244, 249 (Iowa 2009)

      Blanchard contends that at both times he was questioned he was in

custody. He contends that he believed that if he did not talk to the officers they

would arrest him. He argues that while he was free to leave, it is apparent their

purpose was to obtain incriminating admissions from Blanchard as to his contact

with his daughter and he had understood his situation to be one of custody.

      In Ortiz, 766 N.W.2d at 251, the court noted Miranda provides that a

suspect is in custody under formal arrest or under any other circumstances

where he is deprived of his freedom of action in any significant way. Whether the

facts surrounding the first interview would support a finding that Blanchard’s

freedom was impacted in a significant way, we need not decide. In the second

interview, Blanchard was transported by the officers to the police station where

the interview took place. He was confronted with his actions concerning the

child’s death and the facts would indicate he could well assume, as he testified,

that he was not free to leave. He was not given Miranda warnings. Therefore

the question is whether his trial counsel’s failure to file a motion to suppress

prejudiced him.

      Blanchard argues that the failure to file the motion to suppress prejudiced

him and affected the outcome of the case because it was likely the State would
                                           15



not have had enough evidence to convict him without he statements.              We

disagree. In its fact-findings, the trial court noted Dr. Carey’s impressions of

Blanchard’s behavior during Aliya’s stay at Mayo Clinic. It noted Dr. Carey was

“taken aback” by the fact Blanchard “showed little or no emotion and did not

seem overwhelmed by the situation,” as well as the fact that he “appeared more

concerned with the doctor’s opinion as to how this may have happened rather

than the likelihood of his daughter’s survival.” Although Blanchard initially denied

knowing how Aliya’s injuries could have occurred, he later told Dr. Blanchard that

“he may have struck her head on a microwave door while preparing her bottle.”

Blanchard told Dr. Billings he admitted to law enforcement that he had become

frustrated with Aliyah and shook her while on the couch. At that point, Blanchard

appeared to be “very distraught” and stated he could not live with himself if Aliyah

died. Another doctor who observed Blanchard at the hospital found it strange

that Blanchard appeared to be laughing and joking and talking about video

games with his mother rather than expressing concern for his child’s welfare.

Coupled with Eilderts’s testimony about what she heard during Blanchard’s 3

a.m. feeding of Aliyah and Blanchard’s behavior on the morning of February 5,

2008, there is not a reasonable likelihood the outcome of trial would have been

different had the statements been suppressed. Because Blanchard is unable to

show prejudice, we affirm on this issue.

       4. FAILURE TO CALL BLANCHARD’S MOTHER AS A WITNESS.

Blanchard contends that his attorney should have called his mother, Sherry

Hanson, to testify as to statements Eilderts made regarding what Eilderts may
                                          16



have done to Aliya. At the postconviction hearing, Hanson testified that Eilderts

had called her one day seeking Blanchard’s last paycheck and said,

             “Aliya got—got hit,” or she swung Aliya against a board, is
       what she told me.
             I go, “What the hell did you do that for?” “I don't know,” and
       then she said she did it twice on the couch. She hit—she swung
       the baby down and hit—

       Hanson testified she had this phone call with Eilderts before the trial and

she told Staudt about Eilderts’s statements by phone twice but Staudt was not

interested in this information.

       Hanson also testified she had an opportunity to discuss the facts of the

case with Staudt. On cross-examination she admitted her aunt told her to tell

Blanchard not to hurt the child and she told him prior to the child’s birth that she

would kick him if he hurt the child. She also indicated she was aware Blanchard

had gone to prison for hurting an infant.

       Staudt responded to this complaint, indicating that he realized Eilderts had

sole care of the child between the time Blanchard left for work and returned

home so he deposed her and she was calm, sweet, and did not appear to be

someone you would believe would have harmed a young child.

       Staudt further testified:

       [T]here were some factors that went into that. Her behavior
       beforehand, her remorse, a number of other things that went into
       that. And so it just made more sense and I felt that Randy stood a
       better chance, that it would be more difficult for a district court judge
       to say beyond a reasonable doubt that the only person that had the
       capabilities or the opportunity or the ability to harm this child was
       Randy.
              . . . I talked to Randy about this—and given the fact a judge
       would have to issue a written verdict and establish proof beyond a
       reasonable doubt in the judge’s mind as to what—whatever
                                           17



          reasoning he or she felt that proved Randy guilty beyond a
          reasonable doubt stood a much better chance on appeal, if he were
          to lose, than the simple jury verdict of guilty or not guilty.
                 . . . [T]here were things that we could poke at Annie[2] to
          discredit some of her testimony and to discredit some of her
          believability.
                 But I did not believe it would be enough to overcome what a
          jury—I just felt that a jury was going to look at his case and they
          were going to say this young child was perfectly healthy until point
          X. Between that point and the next time we know, there was a
          doctor involved and something horrible happened to this child; and
          at that point, there were only two people that were in charge, and
          Annie just did not—I—I didn't believe a jury would believe that she
          was the one who did it. So it made more sense to us from a
          strategy scenario to try it to a judge.

          The postconviction court found there was no credible support in the record

that Eilderts confessed to Hanson that Eilderts struck the child twice while on the

couch, noting it appeared this account was given for the first time at the

postconviction hearing.

          A review of the record shows that either parent was in a position to inflict

the injuries that led to the child’s death. The doctors were unable to fix an exact

time of injury. Both parents were drinking on Monday evening, and in addition,

Eilderts was on pain medication.         It is conceded that the child cried while

Blanchard talked to Eilderts on the telephone. While Eilderts contends that the

child was not taking a bottle after Blanchard left home in early morning, the

seizure did not occur until after he returned, and she was in total control of the

child for several hours.

          Staudt acknowledged that Hanson had told him about Eilderts’s

statements. However, Staudt viewed the statements as Eilderts “blaming herself


2
    Annie is a nickname for Eildert.
                                         18



for her child’s death because she felt guilty about leaving the child alone with

[Blanchard],” not an admission of wrongdoing. Staudt was also concerned that if

Hanson testified, damaging statements she made to the police about Blanchard

might be introduced.

         The postconviction court resolved this issue finding calling Hanson as a

witness would not have changed the outcome. We agree and affirm on this

basis.

         5. WAIVER OF RIGHT TO TESTIFY.                  Blanchard contends the

postconviction court erred when it concluded he knowingly and voluntarily waived

his right to testify. He claims counsel was ineffective in advising him against

testifying.

         Counsel has a duty to advise a defendant on the consequences of

testifying to allow the defendant to make an informed decision as to whether to

testify. Ledezma, 626 N.W.2d at 146-47. “Generally, the advice provided by

counsel is a matter of trial strategy and will not support a claim of ineffective

assistance absent exceptional circumstances.         However, when a defendant

follows the misinformed advice of counsel concerning the consequences of

testifying, ineffective assistance of counsel may occur.” Id. at 147.

         Staudt testified he provided Blanchard with different options and explained

what could happen if Blanchard decided to testify and what could happen if he

decided not to testify.    Those scenarios included being confronted with prior

felony convictions, as well as a prior conviction for child endangerment.

Blanchard argues that counsel’s advice was hindered by his failure to adequately
                                         19



prepare. Specifically, Blanchard argues that most if not all of his prior felony

convictions were more than ten years old and therefore counsel could have

obtained a ruling on their admissibility before advising him.

       We find Blanchard has failed to prove he was prejudiced by not testifying.

He makes the blanket statement that by not testifying, he was unable to “provide

more details regarding the facts of the matter and his defense to the charge.” He

does not state what these facts would have been or how they would have likely

changed the outcome of trial. Accordingly, we affirm on this issue.

       AFFIRMED.
