                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0999
                           Filed September 23, 2015


DECARLOS MATLOCK,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica L.

Ackley, Judge.



      A defendant filed a request for postconviction relief contending his counsel

was ineffective in advising him of the number of days he could be incarcerated

on his admission of a probation violation. AFFIRMED.



      Mark C. Smith, State Appellate Defender, Robert P. Ranschau, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, Ralph Potter, County Attorney, and Alisha Stach-Lorang, Assistant

County Attorney, for appellee State.



      Considered by Potterfield, P.J., McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.

      DeCarlos Matlock filed a request for postconviction relief contending his

counsel was ineffective in advising him of the number of days he could be

incarcerated on his admission of a probation violation. Matlock was denied relief,

and he has appealed.

   I. Background Facts

      Matlock pled guilty on November 25, 2012, to two counts of credit card

fraud and one count of second offense domestic abuse assault. The sentences

on the fraud charges were concurrent with each other but the sentence on the

domestic abuse assault charge was ordered to run consecutive to the fraud

charges, making a total sentence of four years. Matlock was granted probation.

On September 26, 2013, Matlock stipulated to a report of violations.           The

stipulation indicated that he would receive credit for time on probation as

provided by Anderson v. State, 801 N.W.2d 1 (Iowa 2011). As an alternative to

revocation of his probation, Matlock’s probation officer communicated through his

attorney that she would recommend a finding of contempt with a 120-day jail

sentence.

      Matlock, through counsel, endeavored to determine how much time he

would be required to spend in prison if his probation was revoked. His counsel

tried to obtain the answer from the classification center but was told that it does

not make Anderson credit calculations before a party arrives at the center.

Counsel attempted to get the information from the sheriff’s office but was

unsuccessful. Counsel then had Matlock’s probation officer make a calculation.

The probation officer provided worksheets indicating Matlock would be required
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to serve approximately thirty days. Based on that information Matlock asked the

probation officer to recommend that his probation be revoked.

        Upon arrival at the classification center, Matlock was informed that he had

334 days left to serve. He arrived in prison on October 3, 2013, was released on

parole on April 21, 2014, and discharged his probation on July 23, 2014.

        Matlock filed a request for postconviction relief, claiming counsel was

ineffective in failing to determine the number of days he would be required to

serve after receiving the Anderson credit. He further alleges that if he had been

correctly informed, he would have agreed to the contempt and 120-day

incarceration option. The postconviction relief hearing was held on March 12,

2014.

        At the hearing, Matlock stated he received worksheets prepared by the

probation officer showing he would serve approximately thirty days if his

probation was revoked. He also admitted that he relied on the worksheets in

making his decision. He testified he relied on his attorney in making the decision,

but admitted she told him the worksheets might not be exactly right. He testified

that but for the worksheet calculations, he would have taken the contempt option

and remained on probation.

        Matlock’s counsel at the revocation hearing testified at the postconviction

relief hearing that in her experience, the final computation of the credit due is

prepared by the department of corrections after the party arrives at the

classification center and that Matlock was so advised. She further stated the

worksheets prepared by the probation officer did not appear accurate and she

discussed her concern with Matlock.
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       Matlock requests that his probation revocation be set aside so he can take

the contempt-sentence option. The district court denied his request in its ruling

dated April 22, 2014. The court stated that the calculation of the credit was a

function of the department of corrections and not a court function at the time of

sentencing or at the time of the revocation and did not raise an ineffective-

assistance-of-counsel issue.     The court further found that the testimony of

Matlock’s counsel was credible. Matlock filed a motion to enlarge, but the district

court reaffirmed its ruling without directly addressing the ineffective-assistance-

of-counsel issue.

       The State filed a motion to dismiss, contending since Matlock was

released from probation while the matter was pending the issue was moot. The

supreme court refused to dismiss, indicating the mootness issue could be

addressed by the appellee’s brief and an appellant’s reply brief.

   II. Error Preservation

       For error to be preserved, ordinarily the issue must be raised and ruled

upon by the trial court. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).

The State contends error has not been preserved since the trial court did not rule

on the ineffective-assistance-of-counsel issue. Matlock raised the issue both in

his petition and in his motion to enlarge. The court recognized the issue but

disposed of it by stating that the probation officer’s erroneous calculation of the

Anderson credit did not raise an issue of ineffective assistance of counsel. It is

fair to say that the court considered the claim of ineffective assistance counsel

and denied it as not being the real issue. In addition, there is at least dicta to the

effect that if a court refuses to rule on a claim, error has been preserved. Linge
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v. Ralston Purina Co., 293 N.W.2d 191, 195 (Iowa 1980).           Error has been

preserved.

   III. Standard of Review

      Appeals from denials of postconviction-relief cases are ordinarily reviewed

for correction of errors at law, but when a constitutional issue such as a claim of

ineffective assistance of counsel is involved the matter is reviewed de novo.

Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012).

   IV. Discussion

      Under Iowa’s statutory scheme, when an indeterminate criminal sentence

is ordered to be served, the actual time a defendant is required to serve is

determined by the department of corrections. See generally Iowa Code ch. 903A

(2013). The department of corrections representative completed the worksheets

that indicated the time Matlock might be required to serve. Counsel advised

Matlock that the actual period of confinement would only be finally determined

after his arrival at the classification center.   She also advised him that the

computation prepared by the probation officer did not appear to be correct.

      Ineffective-assistance-of-counsel claims require a finding of failure of

counsel to perform an essential duty. State v. Clay, 824 N.W.2d 488, 495 (Iowa

2012). Counsel did not erroneously advise Matlock of the time he would have to

serve. Instead, she advised him that the remaining time would not be computed

by the department until he arrived at the classification center. It was a matter of

interest for Matlock to know exactly how much time he would spend in prison, but

that calculation is made by the department of corrections.              When an
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indeterminate sentence is involved counsel can only advise as to the parameters

of the sentence.

      Counsel is presumed to have performed in a competent manner. State v.

Dalton, 674 N.W.2d 111, 119 (Iowa 2004). Counsel’s performance is measured

against that of a reasonably competent attorney. Id. The determination of the

time remaining on a sentence is a matter within the responsibility of the

department of corrections. Counsel advised Matlock accordingly.

      Furthermore, Matlock’s complaint is based on what the probation officer

agreed to recommend. It is the court’s prerogative to revoke the probation or

make a finding of contempt and set the jail time to be served.       Iowa Code

§ 908.11. The “agreement” worked out with the probation officer is only as to her

recommendation and was not by any means conclusive as to a final disposition.

      The second requirement of a successful ineffective-assistance-of-counsel

claim is prejudice. Clay, 824 N.W.2d at 496. Matlock’s assumption he “could

choose” was based on conjecture and affords no consideration to the court’s final

authority in the process. Matlock’s “agreement” with the probation officer may

not have been meaningless, but it was not determinative of the outcome of the

proceeding regardless of Matlock’s choice of punishment.       Matlock has not

established prejudice since there is no indication the court was involved in

allowing him to select his punishment or would give serious consideration to the

probation officer’s recommendation.

      The State contends this matter is moot because Matlock was released

from prison over a year ago. Since Matlock’s claim of ineffective assistance of
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counsel is meritless and without substance, we do not address the mootness

issue.

         AFFIRMED.
