                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0967
                           Filed September 14, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JENNIFER MARY BEADER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Steven P. Van

Marel, District Associate Judge.



      Jennifer   Beader    appeals   revocation   of   her    deferred   judgment.

AFFIRMED.




      John L. Dirks of Dirks Law Firm, Ames, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.




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

         Jennifer Beader appeals revocation of her deferred judgment and

imposition of judgment and sentence on her conviction for theft in the third

degree. She claims her admissions that she violated probation by failing to pay

restitution and being out of contact with her probation officer violated her due

process rights because the admissions should have been subject to the same

constitutional protections and rules of procedure as a guilty plea. She argues the

court was required to assure her admissions were made knowingly and

intelligently in compliance with Brainard v. State, 222 N.W.2d 711 (Iowa 1974),

and State v. Sisco, 169 N.W.2d 542 (Iowa 1969). She also argues the law

requires proof she willfully failed to pay the restitution as ordered, her admissions

were not adequate to satisfy that requirement, and her attorney was ineffective in

failing to present evidence of mitigating factors. We affirm.

         We review appeals from probation-violation proceedings for correction of

errors at law. Iowa R. App. P. 6.907. We review constitutional claims de novo.

State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013). We review ineffective-

assistance-of-counsel claims de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa

2012).

         The State argues Beader has not preserved error because she did not

object to the proceedings or raise a due process claim at the district court. We

determine she has adequately raised her appeal issues under the ineffective-

assistance-of-counsel rubric and therefore address them. See State v. Fountain,

786 N.W.2d 260, 263 (Iowa 2010) (“Ineffective-assistance-of-counsel claims are

an exception to the traditional error-preservation rules.”). To succeed on a claim
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of ineffective assistance of counsel, Beader must show by a preponderance of

the evidence: “(1) [her] trial counsel failed to perform an essential duty, and (2)

this failure resulted in prejudice.” State v. Thorndike, 860 N.W.2d 316, 320 (Iowa

2015) (citation omitted). Failure to prove either prong is fatal to the claim. State

v. Shanahan, 712 N.W.2d 121, 142 (Iowa 2006).

      “[T]he requisite degree of proof in a revocation proceeding is a

preponderance of the evidence.” Rheuport v. State, 238 N.W.2d 770, 772 (Iowa

1976). Competent evidence is sufficient. Id. The rules of evidence do not apply

to proceedings for granting or revoking probation. Iowa R. Evid. 5.1101(c)(4).

Beader has cited no authority in support of a requirement that during a probation-

violation-complaint hearing she is entitled to the same constitutional protections

afforded a criminal defendant in a guilty plea proceeding, and we find none. We

decline to extend the protections she requests.

      Beader does not challenge the sufficiency of the evidence to revoke her

probation, but argues the court was not presented with evidence in mitigation.

She has blurred the lines between the two phases of a probation-violation

proceeding. See Rheuport, 238 N.W.2d at 773 (noting due process requires

probation revocation proceedings to consist of two separate stages, although the

stages may be combined into one hearing). First, there must be an adjudication

as to whether there was a violation. Id. If there is an adjudicatory finding that

there was a violation, then there is a dispositional phase during which the court

will consider any mitigating circumstances. Id. Here, Beader admitted to the

alleged violations. She did not put the State to their proof, as she had reached

an agreement that the State would not request revocation of her deferred
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judgment or probation and would not request she be sent to prison, but would

request extension of her probation, a finding of contempt, a suspended jail

sentence for the contempt, and a payment plan for the restitution.

      A deferred judgment may be withdrawn “[u]pon a showing that the

defendant is not cooperating with the program of probation or is not responding

to it.” Iowa Code § 907.3(1)(b) (2015). “Before taking such action, the court shall

give the defendant an opportunity to be heard on any matter relevant to the

proposed action.” Id. At the adjudicatory phase of the proceeding, Beader was

asked whether she wanted to admit she violated probation, whether she violated

probation by failing to maintain contact with her probation officer, and whether

she failed to pay her restitution. She answered each question in the affirmative.

In this appeal, she argues the court was required to find she willfully violated

probation.   She has cited not authority for a willfulness requirement.        The

evidence was competent and sufficient to support the district court’s adjudication

that Beader had not complied with all the requirements of her probation.

Mitigating evidence is appropriately considered in the analysis of the dispositional

phase.

      Having adjudicated her violations, the court proceeded to the dispositional

phase. During this phase, Beader’s counsel explained Beader’s father had died,

Beader had incurred expenses because of her father’s death, and the death “was

very emotionally jarring” for Beader. Counsel also reviewed Beader’s restitution

payment history, her employment status, and her acceptance of responsibility for

her failures. The court gave Beader an opportunity to make a statement, during

which she apologized to the court and others. The court then reviewed the
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history of the conduct that led to Beader’s conviction, her grant of a deferred

judgment, and a previous probation-revocation hearing that resulted in a

suspended jail sentence for contempt. The court concluded street probation had

not been successful and revoked her deferred judgment, imposed judgment,

sentenced her to prison, suspended the prison sentence, and placed her on

probation with a condition she reside at a residential facility.

       On our de novo review, we find counsel adequately argued facts in

mitigation and Beader had an adequate opportunity to be heard at the

dispositional phase. Accordingly, we affirm.

       AFFIRMED.
