                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0325
                               Filed April 29, 2020


DUSTIN WILLIAM SNOWBIRD,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, Chris Foy,

Judge.



      An incarcerated person appeals the denial of his application for

postconviction relief. AFFIRMED.



      R. Ben Stone of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann LLP, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.



      Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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TABOR, Presiding Judge.

       Dustin Snowbird appeals the denial of his application for postconviction

relief (PCR). He claims the PCR court should have found his trial and appellate

counsel were ineffective for not challenging the felony-plea-taking court’s failure to

mention his right to confront and cross examine the State’s witnesses. Because

Snowbird fails to show he was prejudiced by counsel’s performance, we affirm.

       In 2014, Snowbird pleaded guilty to seven offenses in six separate district

court cases: possession of methamphetamine, a class “D” felony (FECR022729);

third-offense public intoxication, an aggravated misdemeanor (AGCR022942);

possession of methamphetamine, a class “D” felony (FECR023018)1; second-

degree criminal mischief, a class “D” felony (FECR023112); third-offense public

intoxication, an aggravated misdemeanor (SMSM034070); and assault on a peace

officer and second-degree harassment, serious misdemeanors (AGCR023164).

Running some terms concurrent and some consecutive, the district court

sentenced Snowbird to incarceration not to exceed eleven years for these crimes.

Before his plea agreement with the State, Snowbird faced a maximum penalty of

thirty-one years in prison. Snowbird filed a direct appeal but voluntarily dismissed

that case before it was heard.

       Instead, he applied for PCR in 2016.         In an amended version of his

application, he noted the judge who accepted his felony guilty pleas did not inform

him that he was waiving his right to confront and cross examine witnesses at a



1Snowbird told the PCR court the evidence was “sufficient to prove” he was guilty
of this drug felony and he was not arguing “constitutional grounds or process of
error” on that conviction.
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trial. His written pleas to the misdemeanor offenses did include that information:

“I have been advised and know that I may plead not guilty to said charge and if

so: . . . [t]hat I may confront my accusers and cross-examine the witnesses against

me.” At the postconviction hearing, Snowbird told the court: “[I]f . . . I had known

the right to confront these people, I would have stopped the plea proceedings, I

would not have pled guilty to these charges, and I would have went to trial.”

       The PCR court was not convinced, reasoning: “It strains belief to suggest

that someone having as much experience with and exposure to the criminal justice

system as Snowbird would be ignorant of any of his trial rights, including his right

to confront and cross-examine witnesses for the State at trial.” The court also

noted: “The guilty pleas signed by Snowbird and filed in each of the misdemeanor

cases expressly describe his right to confront and cross-examine any witnesses

that the State presented at trial.” The court also underscored the favorable plea

deal before concluding even if Snowbird had been explicitly advised he was giving

up his confrontation rights, he “still would have tendered his guilty pleas in the

felony cases.”

       We generally review the denial of PCR for legal error. Sauser v. State, 928

N.W.2d 816, 818 (Iowa 2019). But we assess ineffective-assistance-of-counsel

claims de novo. Kane v. State, 436 N.W.2d 624, 626 (Iowa 1989). To prevail on

his claim, Snowbird must prove (1) counsel failed to perform an essential duty and

(2) that failure resulted in prejudice. See State v. Straw, 709 N.W.2d 128, 133

(Iowa 2006).     In the guilty plea context, prejudice requires Snowbird show a

reasonable probability that but for counsel’s error, he would not have pleaded guilty

and would have insisted on going to trial. See State v. Myers, 653 N.W.2d 574,
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578 (Iowa 2002) (finding no prejudice when plea-taking court failed to inform

defendant of her right to compulsory process).

      Like the district court, we find no credibility in Snowbird’s claim that had his

attorneys challenged the plea-taking court’s omission of information on

confrontation (either at the plea stage or on appeal), he would have insisted on

going to trial. See Swalley v. State, No. 09-0855, 2011 WL 3480954, at *3 (Iowa

Ct. App. Aug. 10, 2011) (finding applicant’s assertion he would have proceeded to

trial had his attorney not made the claimed mistakes “rings hollow” given the

maximum prison terms he would have faced without the plea agreement).

      After reviewing the criminal and PCR records and Snowbird’s claims, we

affirm the PCR court’s decision by this memorandum opinion under Iowa Court

Rule 21.26(1)(d) and (e).

      AFFIRMED.
