                    IN THE COURT OF APPEALS OF IOWA

                                      No. 17-1821
                               Filed December 19, 2018


LARRY DEAN BELL SR.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.



      Larry Bell Sr., appeals the denial of his application for postconviction relief.

AFFIRMED.




      Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

      Larry Bell Sr., Fort Madison, pro se.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                          2


MULLINS, Judge.

       Larry Bell Sr., appeals the denial of his application for postconviction relief,

filed after our court affirmed his conviction and sentence for failure to comply with

the sex-offender registry, as a habitual offender. See generally State v. Bell, No.

16-1681, 2017 WL 2684356 (Iowa Ct. App. June 21, 2017).

       In the underlying criminal case, a memorandum of plea agreement was

signed by the parties and filed with the clerk of court. A plea hearing was set for

ten days later. Just prior to the plea hearing, Bell’s counsel talked with an assistant

county attorney, who agreed that at the conclusion of the plea hearing, when Bell

would ask to be released from jail pending sentencing, the State would be silent—

neither resisting nor consenting. During the plea hearing, the court recited the

terms of the memorandum of plea agreement on file and accepted the guilty plea.

Neither the State, Bell, nor his counsel mentioned release conditions as an oral

amendment to the agreement. At the conclusion of the plea hearing, Bell’s counsel

requested he be released from jail pending the sentencing hearing. The State,

represented by a different assistant county attorney than the one who had agreed

to remain silent, resisted the request for release. Neither Bell nor his counsel

objected to the State’s resistance. The court denied a change in bail conditions.

Five days later, Bell posted bond and was released from jail. At about the same

time, he filed a motion in arrest of judgment seeking to withdraw his guilty plea,

alleging the State breached the plea agreement.

       After our ruling in his direct appeal, Bell filed his application for

postconviction relief. After a hearing, the district court denied his application. Bell

appeals. He raises one issue on appeal: he argues his trial counsel was ineffective
                                            3


in allowing him to plead guilty despite the State’s contradiction of the release-

recommendation terms of the plea agreement.1 Our review is de novo. Diaz v.

State, 896 N.W.2d 723, 727 (Iowa 2017).             “Ineffective-assistance-of-counsel

claims require a showing by a preponderance of the evidence both that counsel

failed an essential duty and that the failure resulted in prejudice.” Id. (quoting State

v. Schlitter, 881 N.W.2d 380, 388 (Iowa 2016)).

       Because the district court’s ruling identified and fully considered the breach-

of-duty prong of Bell’s claim and we approve of the findings and ruling on this issue,

we affirm the denial of his application on that ground pursuant to Iowa Court Rule

21.26(1)(d). See State v. Delacy, 907 N.W.2d 154, 159 (Iowa Ct. App. 2017)

(“[F]ailure to prove either element is fatal to the claim.”).

       In the alternative, however, we choose to address the prejudice prong of

Bell’s claim. The district court resolved the ineffective-assistance-of-counsel issue

by concluding counsel did not fail to perform an essential duty. It made factual

findings relating to lack of prejudice but did not alternatively address the prejudice

prong in its conclusions. Even assuming counsel breached a duty, Bell has not

established that he was prejudiced. He claims he would not have pled guilty when

he did if the State had not agreed to his release pending sentencing. Thus, when

the State allegedly breached its agreement, his counsel should not have allowed

him to plead guilty. His claims ring hollow. He bonded out of jail five days later. If




1
  Bell raised this argument on the merits in his direct appeal. We declined to consider it
as a result of Bell’s failure to preserve error. See Bell, 2017 WL 2684356, at *2. He now
raises the claim under an ineffective-assistance-of-counsel rubric, claims of which are
excepted from the traditional error-preservation requirements. See State v. Fountain, 786
N.W.2d 260, 262–63 (Iowa 2010).
                                         4


he had not pled guilty, he would have remained in jail until he bonded out—i.e., he

would not have been released earlier. A review of the minutes of evidence shows

no question that he was guilty of all offenses of which he had been charged.2 The

felony charge in this case was for failing to register as a sex offender, an offense

easily provable by the State and for which Bell had no defense. He has not claimed

actual innocence or any likelihood that he would not have been found guilty as

charged. The only legal authorities Bell cites are cases in which the State has

failed at the sentencing hearing to comply with the plea agreement. None of those

cases are persuasive on the issue before us. Bell has failed to prove any prejudice

as a result of any alleged breach of duty by counsel.

       AFFIRMED.




2
   He was also charged with six misdemeanor indecent-exposure offenses. The plea
agreement included the State dismissing five of those charges which would have most
likely resulted in convictions.
