                IN THE SUPREME COURT OF IOWA
                            No. 85 / 07–0566

                        Filed September 19, 2008


GARY KIRCHNER,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Ida County, James D.

Scott, Judge.



      On further review of a decision of the court of appeals, a post-

conviction relief applicant challenges the denial of his ineffective-

assistance-of-counsel claim. AFFIRMED.



      Martha M. McMinn, Sioux City, for appellant.



      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson and

Robert P. Ewald, Assistant Attorneys General, and Kristal L. Phillips,

County Attorney, for appellee.
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HECHT, Justice.

      This case presents a question of whether an attorney provided

ineffective assistance to a client who rejected the State’s offer of a plea

bargain in a class “A” felony case. We conclude the district court and the

court of appeals correctly concluded the client failed to prove he suffered

prejudice as a consequence of his attorney’s advice, and therefore affirm

the denial of the request for post-conviction relief.
      I.     Factual and Procedural Background.

      In late 1996 Gary Kirchner was charged with two counts of first-

degree burglary, criminal mischief, domestic abuse assault, and first-

degree kidnapping.     The charges resulted from an incident in which

Kirchner transported his estranged wife to remote areas, beat her with a

tire iron, and otherwise physically and sexually abused her. The first-

degree kidnapping charge carried a mandatory life sentence without

parole. Iowa Code §§ 710.2, 902.1 (1995).

      Prior to trial, the county attorney sent a letter to Kirchner’s defense

attorney, Gregory Jones, detailing an offer for Kirchner to plead guilty to

one count of second-degree kidnapping, one count of second-degree

burglary, and one count of third-degree sexual abuse.         The plea offer
provided for a twenty-five year prison sentence.        The county attorney

acknowledged in the letter that his “prior experience with Mr. Kirchner

suggests that he will not reasonably consider any plea proposal short of a

dismissal.” Jones forwarded the offer to Kirchner, who was out on bail,

and asked Kirchner to meet him at the Ida County courthouse to discuss

the offer. Kirchner did not show up for the meeting.

      Jones’s investigator later located Kirchner at Kirchner’s parents’

home in Correctionville. When the investigator communicated the offer

to him, Kirchner replied, “[F]uck that anyway, I am not taking any plea
                                            3

offer.”    When Jones later discussed the possibility of a plea deal with

Kirchner prior to trial, Jones encouraged Kirchner to accept the twenty-

five-year offer. Kirchner flatly rejected the offer and the case proceeded

to trial in October 1997.

          During the early stages of the trial, Kirchner exhibited bizarre

behavior. He threatened his wife upon the completion of her testimony,

became very agitated, and intermittently fell asleep.                  This conduct led
Jones to request a mistrial on the ground Kirchner was mentally unfit to

continue. A mistrial was ordered after Kirchner was found incompetent

to stand trial as a consequence of psychosis related to chronic

methamphetamine          use.       Kirchner     was     found    to    have    regained

competency, however, approximately one month later.

          Prior to the commencement of Kirchner’s trial in January 1998,

the State informally offered to allow Kirchner to plead to “just about

anything” that would result in a prison term, including a class “D” felony.

Kirchner again rejected the offer and the case proceeded to trial.1 Before

the trial began the district court held an ex parte hearing regarding

Kirchner’s request for a new attorney.               During the hearing, Kirchner

repeatedly accused Jones of working with the prosecutor and others
against him and professed his innocence of the charges.                        The court

ultimately denied Kirchner’s request for a new attorney. The jury found

Kirchner guilty on all counts. Because he was found guilty of the first-

degree kidnapping charge, Kirchner was sentenced to life in prison

without the possibility of parole.            The court of appeals affirmed the

convictions on direct appeal. State v. Kirchner, 600 N.W.2d 330 (Iowa Ct.

App. 1999).


        1Kirchner’s ineffective-assistance-of-counsel claim relates only to trial counsel’s

advice in connection with the twenty-five-year plea offer.
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      Kirchner filed a post-conviction-relief action, contending trial

counsel rendered ineffective assistance by erroneously advising him as to

the strength of the State’s case on the kidnapping charge, and asserting

counsel’s erroneous advice caused him to reject the twenty-five-year plea

offer. Kirchner testified Jones informed him the case was circumstantial

and that Jones believed they could prevail. Kirchner also presented the

deposition testimony of his sisters, Michelle Kline and Debra Sundene,
and his mother, Thelma Kirchner.            Michelle, Debra, and Thelma were

present on some occasions when Kirchner met with Jones before trial.

Each of these witnesses testified Jones stated the State’s case was not

very strong because there were no fingerprints linking Kirchner to the

crime scenes and the case was otherwise based on circumstantial

evidence.

      Jones offered the following recollection of his advice to Kirchner

regarding the relative strength of the State’s evidence on the charges:

      The kidnapping was what I believed before both trials was
      the weakest of the State’s claims, and that was largely
      because of the facts that I thought might support the fact
      that this woman was voluntarily with her husband, but –
      and I may have suggested that to them, that that might be
      the weaker part of it.

Despite his assessment that the State’s case on the kidnapping charge

was perhaps less strong than the evidence supporting the other charges,

Jones believed Kirchner’s wife was a good and credible witness, and he

advised Kirchner to accept the plea offer calling for a prison sentence of

twenty-five years. Kirchner does not deny he was advised by counsel to

accept the State’s plea offer.

      The district court denied Kirchner’s claim for post-conviction relief,

finding   “Jones   clearly   informed       Kirchner   of   the   strengths   and
                                         5

weaknesses of the State’s case.” The district court also found Kirchner

failed    to   demonstrate   prejudice       resulting   from    Jones’s   allegedly

erroneous advice.      Kirchner appealed from the district court’s adverse

post-conviction ruling, and we transferred the matter to the court of

appeals for decision.

         The court of appeals did not address whether Jones breached a

duty owed to Kirchner, but it affirmed the district court’s conclusion
Kirchner failed to demonstrate prejudice resulting from any claimed

breach of duty owed by Jones to Kirchner. Kirchner v. State, 2007 WL

4197129 at *2–3 (Iowa Ct. App. Nov. 29, 2007).                  We granted further

review.

         II.   Scope of Review.

         We review ineffective-assistance-of-counsel claims de novo. State

v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008). To establish an ineffective-

assistance-of-counsel claim, an applicant must demonstrate by a

preponderance of the evidence “(1) his trial counsel failed to perform an

essential duty, and (2) this failure resulted in prejudice.” State v. Straw,

709 N.W.2d 128, 133 (Iowa 2006).             “The court need not address both

components if the [applicant] makes an insufficient showing on one of
the prongs.” Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995);

State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999) (noting we may affirm the

rejection of an ineffective-assistance-of-counsel claim if either element is

lacking).      The two-pronged analysis applies to ineffective-assistance

claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57,

106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 209 (1985) (quoting Strickland v.

Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2065, 2068, 80

L. Ed. 2d 674, 694, 698 (1984)); Straw, 709 N.W.2d at 135–36.
                                      6

       III.   Discussion.

       A.     Applicable Legal Standard. The district court and the court

of appeals applied a subjective standard in the determination of whether

Kirchner met his burden to prove by a preponderance of the evidence

that he would have accepted the plea deal if he had been properly

advised by his counsel. Kirchner urges us to conclude prejudice must

instead be measured by an objective standard—whether a reasonable
person would have accepted or rejected the plea offer if correctly advised

by defense counsel.

       The Supreme Court first held the two-part Strickland test applied

to claims of ineffective assistance arising out of the plea process in Hill v.

Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203. In Hill, the

Court stated the prejudice inquiry “focuses on whether counsel’s

constitutionally ineffective performance affected the outcome of the plea

process.” Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d. at 210. Strickland

requires an ineffective-assistance-of-counsel claimant to demonstrate

actual prejudice.   Strickland, 466 U.S. at 693, 104 S. Ct. at 2067, 80

L. Ed. 2d at 696.     This actual prejudice requirement has led courts to

hold that in order to prove prejudice, an applicant who previously
rejected a plea offer in favor of going to trial “must show that, but for

counsel’s advice, he would have accepted the plea.” Engelen, 68 F.3d at

241.     The applicant “must present some credible, non-conclusory

evidence that he would have pled guilty had he been properly advised.”

Id.

       We conclude the objective standard proposed by Kirchner for the

measurement of prejudice would undermine Strickland’s requirement

that the applicant demonstrate counsel’s unprofessional errors “actually

had an adverse effect on the defense.” Strickland, 466 U.S. at 693, 104
                                     7

S. Ct. at 2067, 80 L. Ed. 2d at 696 (emphasis added). It would allow a

defendant who claimed innocence and flatly rejected all advice of his

counsel to accept a reasonable plea bargain to nonetheless claim the

benefit of what a reasonable person would have done under the

circumstances.    Our rejection of the proposed objective standard is

consistent with the court’s analysis in Hill.      In that case the Court

rejected the habeas petitioner’s claim because he failed to allege that had
counsel’s advice on the plea offer been accurate, his decision regarding

whether to accept the plea offer would have been different. Hill, 474 U.S.

at 60, 106 S. Ct. at 371, 88 L. Ed. 2d at 210. The Court did not consider

whether,   assuming     accurate   advice   from   counsel,   a   “reasonable

defendant” would have accepted the plea offer.        Instead, it looked to

whether the petitioner had alleged “special circumstances that might

support the conclusion that he placed particular emphasis” on the

erroneous advice.   Id.   Our reading of Hill and the decisions of other

courts who have addressed this issue finds no support for the

application of an objective standard. See, e.g., Wanatee v. Ault, 259 F.3d

700, 704 (8th Cir. 2001) (“Wanatee II”); Engelen, 68 F.3d at 241 (stating a

petitioner must present some “credible, non-conclusory evidence that he
would have pled guilty had he been properly advised” to command an

evidentiary hearing).

      Kirchner cites only one judicial decision adopting an objective

standard such as he proposes, Wanatee v. Ault, 101 F. Supp. 2d 1189

(N.D. Iowa 2000) (“Wanatee I”). On direct appeal in that case, however,

the Eighth Circuit Court of Appeals expressly disavowed the district

court’s purported application of an objective prejudice standard.

      We recognize that the district court purported to apply an
      “objective” standard in analyzing whether Wanatee would
      have accepted the plea offer had he been properly advised.
                                     8
      Although we think that the inquiry into what Wanatee would
      have done under different circumstances is necessarily
      subjective, we believe it is clear from the district court’s
      opinion that the court actually applied a subjective analysis.

Wanatee II, 259 F.3d at 704. The court’s conclusion in Wanatee II the

proper standard was a subjective one was consistent with its earlier

statement in Engelen that the claimant “must show that, but for

counsel’s advice, he would have accepted the plea.” Engelen, 68 F.3d at

241 (emphasis added). Accordingly, we hold a subjective standard for

the measurement of prejudice shall be applied in the determination of

whether a defendant would have accepted a plea offer and received a

lesser sentence but for the ineffective assistance of counsel.

      B.    Analysis. We now turn to the question of whether Kirchner

is entitled to relief under the applicable subjective standard. The thrust

of Kirchner’s ineffective-assistance argument is that counsel’s allegedly

erroneous advice made the twenty-five-year plea offer appear far less

advantageous than it actually was, and induced Kirchner to reject it. On

de novo review, we reject Kirchner’s claim that Jones misrepresented the

strength of the State’s case on the kidnapping charge by characterizing it

as “weak.” We find the assessment of the State’s case provided by Jones

to Kirchner merely communicated Jones’s professional opinion that the

evidence supporting the kidnapping charge was less compelling than the

evidence supporting the other charges. Jones did not believe the State’s

kidnapping case was weak, and he did not advise Kirchner to go to trial

on that or any other charge. Our finding on this point is supported by

the uncontroverted evidence that Jones advised Kirchner to accept

(1) the plea offer that would have resulted in a prison sentence of twenty-

five years, and (2) the prosecutor’s subsequent informal proposal

contemplating a plea to a class “D” felony.        Jones gave this advice
                                      9

because he believed the evidence supported Kirchner’s conviction on the

serious charges including first-degree kidnapping.

         Kirchner offered no evidence to support his self-serving statement

that he would have accepted the plea deal had he known the great

likelihood of his conviction of first-degree kidnapping. Wanatee I, 101

F. Supp. 2d at 1204 (stating ineffective-assistance claimant must make

prejudice showing with something more than self-serving statements).
Indeed, the only evidence in the record speaking to the likelihood of

Kirchner accepting the twenty-five-year plea offer overwhelmingly

establishes Kirchner would not have accepted it regardless of counsel’s

advice.

         In making the plea offer, the assistant county attorney noted his

prior dealings with Kirchner led him to believe Kirchner was not likely to

reasonably consider or accept any plea offer.      The response made by

Kirchner to the proposal conformed to the prosecutor’s expectations.

After failing to show up at a scheduled meeting with Jones to discuss the

plea deal, Kirchner was located by Jones’s investigator.          Kirchner

immediately and summarily rejected the notion of taking any plea offer.

Kirchner again rebuffed the proposed plea bargain immediately prior to
trial when he rejected Jones’s advice to accept the twenty-five-year plea

offer.

         Kirchner’s mother and sister testified Kirchner professed his

innocence of the charges when the plea deal was offered, and

unequivocally rejected the offer.    Kirchner’s own testimony establishes

that when he rejected the twenty-five-year plea offer, he believed Jones,

the judge, and the prosecutor were all “in cahoots” with one another.

Even after the first trial ended in a mistrial and Kirchner was found to

have regained competency to stand trial, he rejected Jones’s advice to
                                     10

accept an offer of an even more advantageous plea bargain. The evidence

clearly establishes Kirchner was unwilling to plead guilty to any offense.

Each time he was approached with the prospect of a guilty plea, Kirchner

abruptly and boisterously rejected it, claiming he had committed no

crime.    Even when Jones advised him to take a plea offer that would

eliminate all risk of a life sentence and result in a prison term of up to

five years, Kirchner summarily rejected it on the ground that he was
guilty of no crime.      Our rejection of the objective standard for the

measurement of prejudice appropriately denies defendants like Kirchner,

who unreasonably deny guilt of any criminal offense, flatly reject all plea

offers, and take their chances on the outcome of a trial, the retroactive

conferral of the status of “reasonable defendants” and the opportunity for

a “do-over.” The record in this case provides no credible factual basis to

support a finding that Kirchner would have accepted the State’s plea

offer if Jones had characterized differently the likelihood of a conviction

on the first-degree kidnapping charge.

      Accordingly, Kirchner has failed to demonstrate prejudice.

      IV.      Conclusion.

      The district court and the court of appeals correctly found Kirchner
failed to establish prejudice resulting from counsel’s allegedly erroneous

advice.     We therefore affirm the denial of Kirchner’s petition for post-

conviction relief.

      AFFIRMED.

      All justices concur except Streit and Baker, JJ., who take no part.
