Ernest Christensen, Applicant-Appellant v. State of Iowa ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0139
Filed October 26, 2016
ERNEST CHRISTENSEN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Osceola County, Patrick M. Carr,
Judge.
Applicant appeals from the order denying his application for postconviction
relief. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
2
MCDONALD, Judge.
Ernest Christensen pleaded guilty to third-degree sexual abuse, a class
“C” felony, in violation of Iowa Code section 709.4(1)(b)(2), 709.4(2) (2013).
Christensen filed an application for postconviction relief, contending his plea
counsel provided constitutionally ineffective assistance of counsel by misadvising
Christensen regarding the amount of time Christensen would be incarcerated.
The district court denied the application for postconviction relief, and Christensen
timely filed this appeal.
Generally, we review postconviction-relief proceedings for correction of
errors at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). “However,
when the applicant asserts claims of a constitutional nature, our review is de
novo. Thus, we review claims of ineffective assistance of counsel de novo.” Id.(citation omitted). To establish a claim of ineffective assistance of counsel, an
applicant must show (1) the attorney failed to perform an essential duty and (2)
prejudice resulted. See State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2008). In
the context of a guilty plea, an applicant must prove a reasonable probability that,
but for the alleged error, he would not have pleaded guilty and would have
insisted on going to trial. See State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006).
On de novo review, we conclude Christensen failed to establish his plea
counsel breached an essential duty. Christensen contends that he asked his
attorney, prior to accepting the plea deal, the length of time he would be
incarcerated and that the attorney answered Christensen would serve only
eighteen months. Christensen has now served more than two years. He will not
be released until he completes a sex offender treatment program, possibly in
3
2017, well past the eighteen-month period. Christensen’s plea counsel credibly
testified it was “not likely” he would have told Christensen he would serve only
eighteen months on a ten-year sentence. Christensen’s plea counsel also
credibly testified that he generally told his clients the amount of time they would
actually serve is left to the discretion of the parole board. He also recalled having
that conversation with Christensen. The district court also explicitly informed
Christensen during the plea colloquy that the sentence was an indeterminate
term not to exceed ten years but the amount of time Christensen would actually
serve was left to the discretion of the board of parole. Christensen never raised
the issue during the plea colloquy or sentencing. Under the circumstances, we
find Christensen’s testimony not credible.
We also conclude Christensen has not established prejudice—i.e., that he
would have proceeded to trial but for counsel’s error. The record shows
Christensen performed a sex act (mouth to genitalia) with his thirteen-year-old
granddaughter. There was overwhelming evidence of his guilt. In addition to the
victim’s testimony, Christensen admitted his conduct to his daughter, the victim’s
mother. He turned himself in to authorities and confessed to two sheriff’s
deputies, and the confession was digitally recorded. Christensen confessed to a
child protective investigator. He also profanely described his conduct on a
recorded jail phone call. He most certainly would have been convicted as
charged if the matter had gone to trial. Instead, Christensen received substantial
concessions to reduce his total criminal exposure by pleading guilty. Finally, it
appears the primary motivation for Christensen in accepting the guilty plea was
to avoid putting his family through the trauma of trial. He instructed his counsel
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to press for the best deal possible, and his counsel did so. We conclude
Christensen failed to prove he would have proceeded to trial absent the alleged
statement by his lawyer. See State v. Weaver, No. 15-0040, 2015 WL 6509024,
at *3 (Iowa Ct. App. Oct. 28, 2015) (finding there was no reasonable probability
the defendant would have insisted on going to trial where the defendant received
substantial concessions by pleading guilty and the evidence was strong,
including the defendant’s admissions).
AFFIRMED.