IN THE COURT OF APPEALS OF IOWA
No. 17-0856
Filed July 5, 2018
JAMIE LEE COLE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Buchanan County, Andrea J. Dryer,
Judge.
James Lee Cole appeals the denial of his application for postconviction
relief. AFFIRMED.
John J. Sullivan of Sullivan Law Office, Oelwein, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., Mullins, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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MAHAN, Senior Judge.
James Lee Cole appeals the denial of his application for postconviction
relief (PCR), contending his Buchanan County plea counsel was ineffective for
failing to continue sentencing until “Cole’s eligibility to participate in the 321J
program”1 on a plea to a charge in Delaware County was determined.
Because an ineffectiveness claim has as its basis the Sixth Amendment,
our review is de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).
The claim raised on appeal was not raised below and, therefore, is not
properly before us. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)
(“[I]ssues must normally be both raised and decided by the district court before we
will decide them on appeal.”); State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999)
(“Nothing is more basic in the law of appeal and error than the axiom that a party
cannot sing a song to us that was not first sung in trial court.”).
In his PCR application, Cole asserted his plea counsel “fail[ed] to properly
advise Cole during the plea negotiation process and sentencing.” He also alleged
he pled guilty in Buchanan County based on a “promise” that he would complete
the 321J program in a work-release facility. The district court rejected the
allegations. On our de novo review, we conclude the record belies Cole’s claim
that such a promise existed or that counsel failed to properly advise him.
Cole entered an Alford plea to operating while intoxicated (OWI), third
offense, in Buchanan County, and the State agreed it would recommend that the
1
The “321J program” to which Cole refers is an OWI residential treatment program
available to certain offenders upon the department of corrections’ determination that such
a program is appropriate. See Iowa Code §§ 321J.2(5)(a)(1), 904.513(1)(a), .513(1)(b)(1)
(2015).
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sentence imposed would run concurrently to the sentence imposed upon Cole in
Delaware County. While the record shows Cole believed his Delaware County
plea would result in his going to a 321J program, his Buchanan County plea
counsel made it clear that sentencing result was not guaranteed. The prosecutor
agreed only that the State would recommend the sentence in Buchanan County
would run concurrent with the Delaware County sentence. Moreover, the district
court was not bound by the parties’ recommendations, but the court did impose a
sentence in Buchanan County that was to run concurrent to the sentence imposed
in Delaware County.
To establish an ineffective-assistance-of-counsel claim, an applicant must
show both that (1) his trial counsel failed to perform an essential duty, and (2) this
failure resulted in prejudice. Clay, 824 N.W.2d at 495. Because Cole has failed
to show plea counsel breached an essential duty, his ineffectiveness claim fails.
See id. at 494. We affirm the denial of postconviction relief.
AFFIRMED.