Anna Sothman v. State of Iowa

IN THE SUPREME COURT OF IOWA

No. 19–1837

Submitted October 21, 2021—Filed December 10, 2021

ANNA SOTHMAN,

Appellant,

vs.

STATE OF IOWA,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Marion County, Michael K.

Jacobsen, Judge.

Applicant seeks further review of the court of appeals decision affirming

the district court’s denial of her application for postconviction relief. DECISION

OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT AFFIRMED.

Waterman, J., delivered the opinion of the court, in which Christensen,

C.J., and Mansfield, McDonald, and Oxley, JJ., joined. McDermott, J., filed a

dissent, in which Appel, J., joined.
 2

Martha J. Lucey, State Appellant Defender, and Shellie L. Knipfer (argued),

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller (argued), Assistant

Attorney General, for appellee.
 3

WATERMAN, Justice.

In this appeal, we must decide whether a defense attorney’s advice about

his client’s future prospects for release on parole and his failure to object to an

in-chambers proceeding constituted ineffective assistance of counsel that

entitles the defendant to vacate her guilty plea. The defendant left her

thirteen-month-old daughter in the bathtub unattended for about thirty

minutes, and during that time, the child drowned. The defendant pleaded guilty

to child endangerment resulting in death, and the court imposed an

indeterminate sentence of up to fifty years with immediate parole eligibility. She

filed no direct appeal. Several years later, she filed this application for

postconviction relief, alleging her plea counsel provided ineffective assistance in

his parole advice and by failing to object to an in-chambers proceeding. Her plea

counsel told her that defendants served an average of 4.6 years for child

endangerment resulting in death. Other evidence developed later indicated that

her parole was unlikely before she served seven years, or longer.

The district court denied her application, finding she failed to prove breach

of an essential duty or prejudice. We transferred the case to the court of appeals,

which affirmed the district court, determining the defendant was correctly

advised there were no guarantees, parole was up to the parole board, the

in-chambers proceeding was not fundamentally unfair, and she failed to

establish prejudice. We granted the defendant’s application for further review.

On our de novo review, we affirm. The defendant failed to meet her burden

to prove that her plea counsel breached an essential duty in his parole advice or
 4

that but for his alleged errors, she would not have pleaded guilty and would have

insisted on going to trial. We hold the defendant had a right to conduct the

proceeding in open court and her counsel breached his duty by failing to object

to his client being placed under oath in the in-chambers proceeding or elicit her

waiver. But in this postconviction action, a showing of prejudice is required, and

the defendant failed to show she was prejudiced by the in-chambers proceeding.

We decline to find a structural error or presume prejudice. Accordingly, we affirm

the decision of the court of appeals and the district court’s judgment.

I. Background Facts and Proceedings.

On June 20, 2016, thirteen-month-old E.S. drowned while under the care

of her mother, Anna Sothman, at their home in Pella, Iowa. Sothman, age

twenty-eight, had fed her three young children breakfast after her husband left

for work. No one else was home with the children. Sothman put E.S. in the

bathtub by 8:45 a.m. because of a dirty diaper. Sothman then left the child alone

in the bathtub for roughly thirty minutes without checking on her. During that

time, Sothman talked by phone twice with her mother, texted, received another

phone call, broke up a fight between her two year old and four year old, and used

Pinterest.1

Sothman’s phone records showed her first six-minute phone call with her

mother began at 8:44 a.m. and her second six-minute call with her mother lasted

from 9:11 a.m. to 9:16 a.m. Sothman did not stay in the bathroom for those

1Pinterestis a social media site where users share and save interesting images. Users pin
an image from a webpage, such as an image of a recipe, and save it to their collection, known as
a board. Each board can be public or private.
 5

phone calls because she was charging her phone’s battery in another room. Her

social media records show she was logged into Pinterest from 8:28 a.m. to

9:16 a.m. and actively using Pinterest from 9:15 a.m. to 9:16 a.m. This evidence

undermined Sothman’s claim she received a phone call from a student loan

company, realized it was 9:12 a.m., and checked on E.S. at that time.

When she did return to the bathroom, Sothman found E.S. floating face

down motionless in the bathwater. She immediately called 911 at 9:22 a.m. First

responders arrived and transported the unresponsive child to the hospital. E.S.

was placed on life support and later pronounced dead. Police interviewed

Sothman at the hospital without giving her a Miranda warning. There, and in

subsequent interviews, she gave varying time frames and reasons for her failure

to check on her daughter. At one point, she claimed she left her daughter in the

bathtub unattended for no more than two or three minutes. But she ultimately

admitted in her guilty plea colloquy that the child was in the bathwater

unobserved from approximately 8:45 to 8:50 a.m. until about 9:15 to 9:20 a.m.

The medical examiner determined the child’s manner of death was

accidental drowning. The Iowa Department of Human Services (DHS) removed

the older children from the family home. Sothman retained an attorney to

represent her who has been practicing law in Iowa since 1998 and has experience

defending serious felony charges. He advised Sothman that she was unlikely to

win at trial and unlikely to win a motion to suppress. Sothman was motivated to

plead guilty because she wanted to avoid putting herself and her family through

the trauma of a public trial where autopsy photos of E.S. would be viewed and
 6

because DHS would not return her two children to their father’s care while she

remained home before her incarceration.

Her attorney negotiated a prearraignment plea agreement on her behalf

with the Marion County Attorney. Sothman’s attorney advised her that after she

served a few months in prison, she could file a motion to reconsider requesting

a suspended sentence and informed her that as part of the plea bargain, the

State agreed not to resist that motion. Sothman’s attorney was wrong. Sothman

was ineligible for a suspended sentence because she pleaded guilty to a forcible

felony.

On August 6, Sothman pleaded guilty in open court to one count of child

endangerment resulting in death, a class “B” felony, in violation of Iowa Code

sections 726.6(1)(a), 726.6(3), and 726.6(4) (2016). The parties informed the

district court of the plea agreement under which the State agreed not to charge

Sothman with murder in the first degree under a theory of indifference to human

life, in violation of section 707.2(1)(e), or other child endangerment crimes. But

the proposed motion to reconsider her sentence was not disclosed to the court.

The court informed Sothman she would be sentenced to an indeterminate

fifty-year prison term with no mandatory minimum. Although Sothman’s

attorney had told her she would be immediately eligible for parole, the court

informed her that “[i]t is up to the parole board to determine when and if you will

be eligible for parole. They make those decisions, the Court does not.”

The court found that her plea was made voluntarily and intelligently and

that Sothman had provided a sufficient factual basis for the crime charged. The
 7

court accepted her guilty plea, ordered a presentencing investigation, and set a

date for sentencing. The court advised Sothman that she could file a motion in

arrest of judgment if she wanted to challenge the plea. Sothman was incarcerated

in the Marion County Jail and her surviving children were allowed to return to

the family’s home under their father’s care.

The prosecutor and Sothman’s attorney realized within a few days that she

was ineligible for a suspended sentence because she pleaded guilty to a forcible

felony. On August 9, her attorney met with her in jail to explain that a motion to

reconsider could not result in her release from prison. They discussed setting

aside her guilty plea through a motion in arrest of judgment, which the State

would not resist. Alternatively, they discussed maintaining her guilty plea and

seeking her release through parole. The State promised to write a letter on her

behalf to the Iowa Board of Parole (BOP) recommending parole if she maintained

her guilty plea.

Meanwhile, Sothman’s attorney located a fiscal note from Iowa’s Fiscal

Services Division of the Legislative Services Agency (LSA) that stated that “[t]he

average length of stay for a person convicted of child endangerment resulting in

the death of a child or minor under current law is 55.4 months, or 4.6 years.”

H.F. 2064, 86th G.A., 1st Sess., fiscal note (Iowa Mar. 17, 2016),

https://www.legis.iowa.gov/docs/publications/FN/770356.pdf

[https://perma.cc/44WG-U9LD]. He shared that information with Sothman and

identified his source. On August 16, Sothman’s attorney wrote her a letter

documenting his advice. The letter stated in full,
 8

I’ve had some more conversations with [the] Marion County
Attorney, regarding sentencing in this case. As we’ve discussed
previously, Child Endangerment Resulting in Death of a Child is a
Forcible Felony under Iowa Code Section 702.11. As a result, the
State’s position is that you are not eligible to have your sentence
reconsidered, since the Judge cannot impose a suspended sentence
on a Forcible Felony. With a Forcible Felony, you must be committed
to the custody of the Director of the Department of Corrections, and
then paroled. The County Attorney has indicated that if you agree
not to file a Motion in Arrest of Judgment, seeking to have your guilty
plea set aside in this case, he will write a letter of recommendation
in support of your parole after 6 months in prison. As we’ve
discussed, having a letter from the County Attorney would definitely
be of assistance to us in trying to secure your early release on parole.

The purpose of this letter is to confirm the discussions that
I’ve had with the County Attorney in this regard, so that you are
aware of what has been going on, and further to explain your legal
rights in this case. As you know, you plead guilty to Child
Endangerment Resulting in Death, which is punishable by a penalty
of up to 50 years of incarceration in prison. We’ve also discussed
that typical individuals, pursuant to a Legislative Services Study,
serve on average 4.6 years on this type of sentence. There is no
minimum sentence and you are eligible for parole immediately upon
your sentencing.

If we file a Motion in Arrest of Judgment, we could argue that
your guilty plea should be set aside, on the grounds that the State
had made promises that they would not resist reconsideration when
reconsideration is not possible. The Court would likely set aside your
guilty plea and then we’d have the opportunity to try and negotiate
a new plea or defend you on these charges, if possible.

If you agree to not file a Motion in Arrest of Judgment then
we’ll proceed with sentencing and completion of the PSI report. Once
you are sentenced, you will have the opportunity to seek parole while
in prison and the State will file a letter on your behalf,
recommending parole. As we’ve discussed, I believe you would be an
excellent candidate for parole but you must understand that there
are no guarantees on either a Motion to Reconsider or parole
request. The ultimate decision is out of your hands.

If you still want to proceed with your guilty plea, and seek
early parole as opposed to filing a Motion in Arrest of Judgment and
trying to have your guilty plea set aside, I would ask you to sign this
letter and then return it to me. That way, I will know what your
 9

decision is and will have documentation of that in my file if
necessary at a later point. If you have any questions about these
matters, please let me know.

(Emphasis added.) Sothman signed the letter on August 18 over printed

language that stated:

I understand my legal rights and have had the opportunity to
discuss the same with my attorney and I am satisfied with the advice
and legal counsel I have been given. I desire to seek parole in this
matter and not file a Motion to Reconsider, and do not wish to
challenge my guilty plea on the basis of the information contained
within this correspondence.

On September 23, Sothman appeared for her sentencing hearing. The

proceedings began in chambers with the judge, the lawyers, a court reporter,

and Sothman present. Her attorney and the prosecutor informed the court that

they wanted to “clarify the record” because they had mistakenly believed during

the prior negotiations leading to Sothman’s guilty plea that she could file a

motion to reconsider her sentence to seek her release from prison on probation.

They explained to the judge that after the court accepted her guilty plea, they

realized probation was not allowed for this forcible felony. They asked to make a

record, and the court placed Sothman under oath. Sothman was not asked to

waive any right to conduct her examination in open court and was not told that

was an option.

In chambers, Sothman, examined first by her attorney, testified that her

questions about the change in circumstances had been answered in their prior

discussions, that she understood that she will be sentenced to an indeterminate

term for up to fifty years of incarceration with no mandatory minimum and will

be eligible for parole, and that the district court would not be granting parole
 10

and she would have to go through the BOP. The judge then engaged Sothman in

a brief colloquy:

[THE COURT:] Well, let me bottom line the question: You
understand that the Court has no choice but to sentence you to
prison?

SOTHMAN: I do understand that.

THE COURT: And you’re accepting of that sentence, based on
the circumstances of your case?

SOTHMAN: I do understand that, yes ma’am.

Next, under cross-examination by the prosecutor, Sothman testified that she

understood she could file a motion in arrest of judgment to withdraw her guilty

plea but has chosen not to do so because she believes it is in her best interest to

go forward with her guilty plea.

The court then conducted the sentencing hearing in open court. There

were about fifteen to twenty people in the audience, including friends, family,

church members, and the press. The district court sentenced her to an

indeterminate term of incarceration not to exceed fifty years. Sothman was

transported to the Iowa Correctional Institution for Women in Mitchellville. She

did not appeal her conviction.

Sothman’s attorney advised her to begin exploring the parole process upon

her arrival in prison and to let him know when she was ready to proceed with a

parole application. Sothman’s counselor at the prison recommended Sothman

look at reconsideration because it would be ten months before Sothman could

apply for parole and the prison would not initially support her for parole due to
 11

the seriousness of her offense. Sothman was told she would probably be in prison

for at least seven to eight years.

As promised in the plea agreement, on August 4, 2017, the county attorney

wrote a letter to the BOP urging the release of Sothman. He relied on the BOP’s

2016 Annual Report, which showed “the average length of incarceration of other

violent class B sentences is 86 months.” The county attorney suggested that

Sothman and society would “be better off with [Sothman] being released sooner”

than the average seven or eight years sentence for other violent class “B” felonies.

The Iowa Department of Corrections (DOC) has not yet supported

Sothman’s annual review for probation. Sothman has been a model inmate.

According to Sothman, the DOC did not support her in 2017 because she had

not been at the prison long enough, in 2018 because she had not taken the

necessary classes, and in 2019 because the DOC failed to complete her home

check. According to her counselor, the prison did not support Sothman’s parole

applications because of the seriousness of the offense.

Sothman retained new counsel and on April 26, 2019, filed her application

for postconviction relief (PCR) alleging that she received ineffective assistance of

counsel because her plea counsel misinformed her about the parole process and

that her right to a public proceeding was violated. The district court

characterized Sothman’s application as two ineffective-assistance-of-counsel

claims.2 On October 2, at her PCR trial, Sothman testified that her

2Thejudge who presided over the postconviction hearing is not the judge who accepted
Sothman’s plea and sentenced her.
 12

understanding was that after pleading guilty, she would “then be immediately

transported to the prison and be eligible for parole and be home within a year.”

She had no previous interactions with the criminal justice system to inform her

differently. She testified that she did not understand the difference between

probation through reconsideration of a sentence and parole. If she had known

that she was “not actually eligible for that quick release, either through

reconsideration or parole” she would not have pleaded guilty to child

endangerment resulting in death. She also noted that her father came to court

for her sentencing and missed the opportunity to hear the in-chambers

proceeding.

Sothman wanted to get her kids back to their father and to join them as

soon as possible. She testified that the State’s promise not to charge her with

other offenses and the evidence of when she accessed Pinterest did not affect her

decision to plead guilty. Rather, she chose to plead guilty to avoid delaying her

prison sentence and her ultimate return home, stating,

I don’t remember that so much as it being -- what I remember --
what I remember was that if we were to set the plea aside, we would
have to go through all of this all over again and come back to --
basically if we were to set it aside, it would be delaying what was
coming, so I should just go ahead and do it now and be able to move
on and go through the steps for parole to be able to get things set in
motion so that the family could, again, come back together.

She acknowledged there was a real good chance that she was going to be

convicted of child endangerment and avoiding trial would be better for her family

by ensuring they did not have to relive the traumatic event.
 13

Her counselor testified that the DOC’s decision to support an inmate for

parole and the BOP’s decision to grant parole are individualized determinations,

that there is no legal reason why the BOP could not parole Sothman the next

day, and that it would be possible—but not probable—for someone with the same

sentence to be paroled earlier than her.

Sothman’s counsel at her PCR trial offered into evidence a letter to him he

obtained from an administrative law judge (ALJ) dated September 18, 2019, that

addressed earned-time credits and parole. The letter stated in full:

Child Endangerment Resulting in Death 726.6(4) is classified
as a violent assault. Once they enter [the Iowa Medical Classification
Center Correctional Facility], the sentence is given 1.2 day[s] credit
for every day served. Fifty years comes out to be roughly 22.7 years.
They are eligible for annual reviews and as long as they participate
and complete institutional programs, the Department of Corrections
can make a recommendation to the Board for release. If any
discipline actions occur while incarcerated, they can lose time which
would extend the 22.7 years.

Without knowing how much jail credit, the rough calculation
on earned time on a 50-year sentence is approximately 22.7 years.
If discipline action is taken while in prison, earned time can be
taken, extending the 22.7 years. If they lose all earned time, or dead
time (while on supervision) the length of sentence would be 50 years.

The Board likes to see a period of supervision. They like to see
progress by the offender while they are incarcerated.

A release is discretionary, therefore, the exact percentage
served is unknown. However, based on releases granted, an average
is calculated. Depending on behavior in prison, one could serve as
little as 30% or as much as 100% of their sentence. The board looks
at factors set out in our Administrative Rules, IAC- 205—8.10.

The ALJ did not testify. Thirty percent of 22.7 years is 6.81 years.

Sothman’s plea counsel testified that the plea deal was a good resolution

because the facts and the law were not on her side, the State made a huge
 14

charging concession, and it helped minimize public attention. He said apart from

reviewing the LSA fiscal note, he did no additional research into the average

length of incarceration for child endangerment resulting in death. No witness

testified that plea counsel estimating a defendant’s likely release on parole

should contact an ALJ in the prison system rather than rely on an LSA report

compiling average release times.

Sothman’s plea counsel also testified he told Sothman that the judge

wanted to meet with the parties and ask her a few questions on the record but

he did not believe he discussed with Sothman that the judge could ask questions

either “in the courtroom or back in chambers.” He did not object because

reporters were in the courtroom, the proceedings in chambers confirmed “for the

judge that this decision had been made by Ms. Sothman knowingly, intelligently,

and voluntarily,” and she was sentenced in open court.

On October 22, the district court denied Sothman’s application for PCR

after determining that she did not receive incorrect advice regarding her eligibility

for parole and, assuming her right to a public trial was violated, she was unable

to show prejudice for either claim of ineffective assistance of counsel. The district

court determined Sothman failed to prove prejudice, stating:

Ms. Sothman testified at [the postconviction] trial that she
would not have pled guilty if she knew that her sentence couldn’t be
reconsidered or that she wouldn’t be paroled quickly. What
Ms. Sothman never testified to at trial was that she would have
insisted on taking the [criminal] case to trial. Ms. Sothman’s focus
at the time leading up to the guilty plea revolved around avoiding
publicity, quick resolution to the case, and return of her children to
their home with their father. Even at the time of her decision not to
file a motion in arrest of judgment, Ms. Sothman was focused on the
DHS case and continuing with sentencing was the quickest way to
 15

get home with the kids. Ms. Sothman further testified that she
remembered that if she set aside her plea she would have to go
through it all over again and that would delay what was coming. She
wanted to set in motion parole to get her family back together.

The evidence against Ms. Sothman was strong. She was the
only adult at home with the children. She placed the young child in
the bathtub. She acted in a manner that created a substantial risk
to the child’s physical safety resulting in the child drowning.
Ms. Sothman left a [thirteen] month old child in a bathtub
containing water, for approximately 25–35 minutes without any
supervision. During that time Ms. Sothman spoke on the phone with
her mother, sent and received text messages, answered a phone call
and was on the social application Pinterest. During the trial of this
case Ms. Sothman admitted that a jury wouldn’t have viewed the
facts in a positive light and agreed that there was a really good
chance she would have been found guilty at a trial. With the facts
against her Ms. Sothman took the benefit of pleading guilty to avoid
the publicity of trial, of putting her children and family through a
trial and saving herself from having to hear and view the evidence
against her at trial. By pleading guilty Ms. Sothman also avoid[ed]
other potential charges and facilitated her children returning to their
home and care of their father. Ms. Sothman has failed to prove that
she would have insisted on going to trial in this case and therefore
did not suffer prejudice.

Sothman appealed, and we transferred the case to the court of appeals.

The court of appeals affirmed, finding “Sothman’s misunderstanding of the

potential parole timeline is not sufficient to provide a basis for a claim of

ineffective assistance.” The court of appeals further determined that Sothman

failed to prove she was prejudiced by the in-chambers proceedings or that the

process was fundamentally unfair to warrant structural error review. Sothman

applied for further review and we granted her application.

II. Standard of Review.

“We generally review a district court’s denial of an application for

postconviction relief for errors at law.” Doss v. State, 961 N.W.2d 701, 709 (Iowa
 16

2021). “However, a PCR application alleging ineffective assistance of counsel

raises a constitutional claim, and ‘[w]e review postconviction proceedings that

raise constitutional infirmities de novo.’ ” Krogmann v. State, 914 N.W.2d 293,

306 (Iowa 2018) (alteration in original) (quoting Castro v. State, 795 N.W.2d 789,

792 (Iowa 2011)).

On de novo review, “we give weight to the lower court’s findings concerning

witness credibility.” King v. State, 797 N.W.2d 565, 571 (Iowa 2011) (quoting

Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001) (en banc)). But we are not

bound by the lower court’s determination. State v. McCoy, 692 N.W.2d 6, 21

(Iowa 2005).

III. Analysis.

We must decide whether Sothman proved her plea counsel provided

ineffective assistance of counsel in his advice regarding her likely release on

parole or by allowing her second plea hearing to be conducted in chambers rather

than in open court. We begin our analysis with the applicable law and then

address each claim in turn.

“To establish ineffective assistance of counsel, [Sothman] must

demonstrate [her] plea counsel ‘failed to perform an essential duty’ that resulted

in prejudice.” Doss, 961 N.W.2d at 709 (quoting State v. Straw, 709 N.W.2d 128,

133 (Iowa 2006), superseded in part by statute on other grounds, 2019 Iowa Acts

ch. 140, §§ 28, 31 (codified at Iowa Code §§ 814.6(1)(a), .7 (2020)), as recognized

in State v. Tucker, 959 N.W.2d 140, 153–54 (Iowa 2021)). “Counsel breaches an

essential duty when counsel makes such serious errors that counsel is not
 17

functioning as the advocate the Sixth Amendment guarantees.” Id. (quoting State

v. Ross, 845 N.W.2d 692, 698 (Iowa 2014)). “We presume counsel acted

competently but that presumption is overcome ‘if we find [Sothman] has proved

[her] counsel’s performance fell below the normal range of competency.’ ”

Krogmann, 914 N.W.2d at 306 (quoting State v. Harris, 891 N.W.2d 182, 186

(Iowa 2017)). “If the claim lacks prejudice, it can be decided on that ground alone

without deciding whether the attorney performed deficiently.” Ledezma,

626 N.W.2d at 142.

In Hill v. Lockhart, the United States Supreme Court adopted the Strickland

prejudice standard for challenges to guilty pleas based on ineffective assistance

of counsel. 474 U.S. 52, 58 (1985).

Representation is an art, and an act or omission that is
unprofessional in one case may be sound or even brilliant in
another. Even if a defendant shows that particular errors of counsel
were unreasonable, therefore, the defendant must show that they
actually had an adverse effect on the defense.

Id. (quoting Strickland v. Washington, 466 U.S. 668, 693 (1984)). Importantly,

the Court noted that requiring a showing of prejudice served “the fundamental

interest in the finality of guilty pleas.” Id.

Every inroad on the concept of finality undermines confidence
in the integrity of our procedures; and, by increasing the volume of
judicial work, inevitably delays and impairs the orderly
administration of justice. The impact is greatest when new grounds
for setting aside guilty pleas are approved because the vast majority
of criminal convictions result from such pleas. Moreover, the
concern that unfair procedures may have resulted in the conviction
of an innocent defendant is only rarely raised by a petition to set
aside a guilty plea.

Id. (quoting United States v. Timmreck, 441 U.S. 780, 784 (1979)).
 18

In Irving v. State, we adopted Hill’s prejudice standard in the context of a

guilty plea. 533 N.W.2d 538, 541 (Iowa 1995). “[T]o satisfy the prejudice

requirement, [Sothman] must show that there is a reasonable probability that,

but for counsel’s errors, []she would not have pleaded guilty and would have

insisted on going to trial.” Doss, 961 N.W.2d at 709 (first alteration in original)

(quoting Straw, 709 N.W.2d at 138); see also Irving, 533 N.W.2d at 541.

A. Parole Advice. Sothman alleges she received ineffective assistance of

counsel because her plea counsel incorrectly advised her on the consequences

of her plea agreement. “This claim of ineffective assistance does not involve trial

tactics, strategies, or other judgment calls that we do not ordinarily

second-guess.” Meier v. State, 337 N.W.2d 204, 206 (Iowa 1983) (en banc).

Rather, her claim alleges her plea counsel breached an essential duty by failing

to correctly advise her on when she would realistically be considered by the BOP

for parole.

A guilty plea must be made “voluntarily and intelligently.” Iowa R. Crim.

P. 2.8(2)(b). A district court is required to ensure that “the defendant

understands the direct consequences of the plea” and “is not required to inform

the defendant of all indirect and collateral consequences of a guilty plea.” State

v. Carney, 584 N.W.2d 907, 908 (Iowa 1998) (en banc) (per curiam). Even though

a criminal “defendant need not be informed of all indirect and collateral

consequences of his [or her] plea[,] . . . that does not leave a court, or an attorney,

free to misinform a defendant regarding collateral consequences of his [or her]

plea.” Meier, 337 N.W.2d at 207; see also Stevens v. State, 513 N.W.2d 727, 728
 19

(Iowa 1994) (per curiam) (“The rule is well established that defense counsel does

not have a duty to inform a defendant about the collateral consequences of a

guilty plea, but commits reversible error if counsel misinforms the defendant as

to these consequences.”). “Parole eligibility is a collateral consequence of a plea.”

Stevens, 513 N.W.2d at 728. So too is the BOP’s exercise of its discretion whether

to grant parole.

Inaccurate advice on collateral consequences can support an

ineffective-assistance claim. In Meier v. State, an attorney breached an essential

duty because he advised his client that the State would pursue a charge with a

five-year mandatory minimum sentence if he did not accept the plea deal and

failed to advise that credit for good time served could reduce the mandatory

minimum. 337 N.W.2d at 206–07 (relying on recent changes to Iowa Code

section 246.38 and section 246.43 regarding credit for good time served). But see

Stevens, 513 N.W.2d at 728 (concluding an attorney did not breach an essential

duty because he “explained how good time credits work to reduce sentences” and

“did not have a duty to explain specifically that a mandatory minimum sentence,

like any other sentence, was subject to reduction for good time”). Sothman’s plea

counsel correctly advised her that she would be immediately eligible for parole.

Sothman argues her plea counsel gave her bad advice about the timing of her

likely release on parole and that the 4.6-year average time served was wrong.

In Doss v. State, the criminal defendant alleged in his application for PCR

that he received ineffective assistance of counsel because he was not

“adequately” informed of the terms and conditions of his lifetime special parole
 20

sentence. 961 N.W.2d at 706–07. He claimed that his counsel told him “[a]s long

as [he] followed the actual law, [he] would be okay” and stated that he was

unaware that he would have to abide by additional rules. Id. at 708 (first

alteration in original). The defendant’s claims were undermined by the record of

his sentencing hearing. Id. at 713. The record showed that his counsel stated

the defendant would have to go through a sex-offender-treatment-program

(SOTP) that is “very strenuous and very rigorous.” Id. And the court emphasized

that the defendant “will also be subject to whatever further terms and conditions

that [his] probation officer feels are appropriate,” he “will be ‘on probation for the

rest of his life,’ ” and he could “end up in prison if he ‘fail[ed] to participate

appropriately’ in SOTP.” Id. (second alteration in original). Thus, we concluded

he was not misled by his counsel and his counsel did not breach an essential

duty. Id. at 713–14.

Similarly, any inaccuracies in Sothman’s plea counsel’s advice did not rise

to the level of breach of an essential duty. The record does not support Sothman’s

claim that she was advised that she would be home to her family within a year.

To the contrary, Sothman’s plea counsel advised her “there are no guarantees”

on a parole request and told her 4.6 years was the average time served based on

an LSA fiscal note—a government document—that he disclosed to her and

quoted accurately. The district court made clear to Sothman that the BOP

decided when she would be paroled, not the court.

In our view, her plea counsel reasonably relied on the LSA fiscal note as a

credible source in advising Sothman. In 2016, the legislature amended the
 21

penalty for certain alternatives for child endangerment resulting in death. See

2016 Iowa Acts ch. 1104, §§ 1–2, 5–8 (codified at Iowa Code §§ 124.413, 802.2B,

901.11, 901.12, 902.12 (2017)). The accompanying fiscal note, dated March 17,

2016, states that “[t]he average length of stay for a person convicted of child

endangerment resulting in the death of a child or minor under current law is

55.4 months, or 4.6 years.” H.F. 2064, 86th G.A., 1st Sess., fiscal note (Iowa

Mar. 17, 2016).

Fiscal notes are an essential part of the legislative process. See Joint Rules

of the Senate and House, H.R. Con. Res. 6, 86th G.A., R. 17 (Iowa 2015),

https://www.legis.iowa.gov/docs/publications/JR/644150.pdf

[https://perma.cc/AXH4-E4A6]. When preparing a fiscal note for proposed

legislation, “[t]he LSA uses the most accurate and reliable information whenever

the information is received” and “is not obligated to use any data provided by a

department and seeks multiple and independent sources of financial

information.” Legis. Servs. Agency, The Iowa Legislature: Fiscal Note Information

Guide 15 (2019), https://www.legis.iowa.gov/docs/publications/HELP

/1035134.pdf [https://perma.cc/7GV7-AHWX]. Because lawmakers reasonably

rely on such fiscal notes in enacting sentencing legislation, we will not

second-guess her plea counsel’s reliance on the same source. See Ledezma, 626

N.W.2d at 142 (“[W]e begin with the presumption that the attorney performed

competently . . . [and] we avoid second-guessing and hindsight.” (citations

omitted)).
 22

Sothman’s plea counsel relied on the LSA fiscal note’s 4.6-year average

without interviewing prison counselors, administrative law judges, or other

sources. We are not convinced that professional norms required plea counsel to

look beyond the LSA’s fiscal note. Ledezma, 626 N.W.2d at 142 (“[W]e measure

the attorney’s performance against ‘prevailing professional norms.’ ” (quoting

Strickland, 466 U.S. at 688)). Sothman’s PCR counsel put on no expert testimony

or other evidence that a reasonably competent plea counsel would have looked

beyond the LSA’s 4.6-year average and interviewed an ALJ.

Sothman’s plea counsel told her there was no guarantee as to her release

date on parole. Hindsight is twenty-twenty. At the time of the PCR trial, Sothman

had not yet served more than 4.6 years. Presently, it is possible that she will be

paroled next year. She has been a model inmate with no loss of earned time. The

prosecutor’s letter to the BOP and Sothman in her PCR testimony reported parole

in seven or eight years as the average. The ALJ’s letter focused on earned-time

credits that would reduce her fifty-year sentence to 22.7 years and indicated she

may be paroled after serving thirty percent of her sentence, or 6.81 years, such

that her release could be imminent. The district court made no finding that

fifteen years is more likely. Nor do we.

The dissent relies on Strader v. Garrison, where the plea counsel

erroneously told his client he would eligible for parole “several years sooner than

the regulations permitted.” 611 F.2d 61, 63 (4th Cir. 1979) (vacating guilty plea

on habeas review based on ineffective assistance of counsel). Strader addressed

plea counsel’s mistake of law as to a date certain—his client’s eligibility for
 23

parole. Parole eligibility is set by statute. See, e.g., Iowa Code § 902.11. But legal

eligibility for parole is distinct from the BOP’s discretion whether, and when, to

grant parole, once eligible. The Strader court stated, “This was not just a

prediction which was not realized. The lawyer could have discovered the

applicable rule had he looked in the published material, but he did not.”

611 F.2d at 63. By contrast, Sothman’s counsel did not misadvise her on the law

but rather correctly told her she was immediately eligible for parole, while her

ultimate release on parole was in the hands of the BOP. To the extent his advice

was too optimistic, it is “just a prediction which was not realized.” Id.

In any event, Strader preceded Hill v. Lockhart, which now requires a

showing of breach and prejudice to vacate a guilty plea on habeas or

postconviction review, not merely inaccurate advice as to the defendant’s release

date. See 474 U.S. at 56–57. The same federal circuit that decided Strader later

retreated from that decision, stating, “An attorney’s ‘bad guess’ as to sentencing

does not justify the withdrawal of a guilty plea and is no reason to invalidate a

plea.” Little v. Allsbrook, 731 F.2d 238, 240–41 (4th Cir. 1984) (affirming

conviction despite a ten-year difference between the defendant’s understanding

from plea counsel and actual parole eligibility).

The dissent also relies on Beavers v. Saffle, where the United States Court

of Appeals for the Tenth Circuit granted a habeas petitioner a hearing to

challenge his guilty plea because his plea counsel advised him it would take

between ten to twelve years to make parole when the average time in fact was

22.5 years. 216 F.3d 918, 921, 925–26 (10th Cir. 2000). Saffle is distinguishable
 24

as involving parole eligibility and because plea counsel subsequently testified he

gave bad advice. Id. at 920, 925. Sothman’s plea counsel made no such

admission, and he reasonably relied on the LSA fiscal note showing an average

of 4.6 years served. In any event, as noted below, in a subsequent appeal, the

Tenth Circuit affirmed Saffle’s guilty-plea based conviction based on a lack of

Strickland prejudice. Beavers v. Saffle, 41 F. App’x 288, 289–90, 292 (10th Cir.

2002).

Nor is the dissent’s reliance on Howard v. State, 783 S.W.2d 61, 62 (Ark.

1990), helpful to Sothman. In that case, plea counsel erroneously relied on

outdated statutes (a clear mistake of law) in advising the defendant that upon

pleading guilty, she may only serve ninety days in prison, instead of the

sixty-year sentence imposed. Id. Under the applicable statutes, early release was

not available. Id. Again, that case turned on plea counsel’s legal error as to parole

eligibility, not a prediction as to when her discretionary release on parole is likely.

As the State argued, “[T]he defendant’s complaints are less about her

attorney’s conduct than they are about her unrealistic expectation that she

deserved immediate parole after letting her child drown in the bath tub[;] . . .

[u]nrealistic expectations are no basis for legal relief.” We agree with the district

court and court of appeals that Sothman failed to prove her plea counsel

breached an essential duty in his advice on parole, and we affirm on that ground.

A contrary holding would have a chilling effect on plea counsel’s willingness to

offer advice estimating the time for release on parole, a matter of great interest

to their clients and quintessentially within the lawyer’s advisory role.
 25

We also agree with the district court and the court of appeals that Sothman

failed to prove prejudice. The district court noted that Sothman “never testified

. . . that she would have insisted on taking the case to trial.” We do not require

magic words, but we do require a showing that but for the challenged plea advice,

Sothman would have withdrawn her guilty plea and taken the case to trial. She

had no realistic defense to her crime of conviction. She left her

thirteen-month-old child unattended in the bathtub for roughly thirty minutes,

and the child drowned. The State agreed not to pursue additional charges,

including first-degree murder with a mandatory life sentence. Sothman wanted

to avoid putting her and her family through the trauma of a public trial. She also

wanted her remaining two young children to return to their home and care of

their father as soon as possible, which DHS would not allow before her

incarceration. The district court heard Sothman’s live testimony on this crucial

issue, and we give weight to its credibility determinations. See King, 797 N.W.2d

at 571.

On our de novo review, we agree with the district court that Sothman failed

to show there was a reasonable probability she would have withdrawn her guilty

plea and taken her case to trial had she been advised to expect a much longer

wait for parole. That finding is fatal to her prejudice claim. See Doss, 961 N.W.2d

at 709 (requiring proof the defendant would have taken the case to trial); see

also Beavers, 41 F. App’x at 289–90, 292 (concluding a defendant did not show

Strickland prejudice because it was not “gross misadvice” for his attorney to

estimate the defendant would be eligible for parole in ten to twelve years when it
 26

would actually be fifteen years and defendant did not show he would have taken

his case to trial but for that advice); Dempsey v. State, 860 N.W.2d 860, 871

(Iowa 2015) (“Notwithstanding these inaccuracies, and in no way minimizing the

significance of a year in prison, we cannot conclude counsel’s errors with respect

to the sentencing consequences [the defendant] faced under either the trial

information or the first plea offer—in each instance a difference of one year—

were so great as to rise to the level necessary to establish prejudice.”).

In arguing that Sothman established prejudice, the dissent relies on Diaz

v. State, where we held that the defendant, an unauthorized alien, was allowed

to vacate his guilty plea to forgery because his plea counsel “failed in his duty to

advise his client of the direct and severe immigration consequences” of automatic

and permanent removal. 896 N.W.2d 723, 725 (Iowa 2017). “This was a ‘truly

clear’ consequence [of his plea], and counsel had a duty to tell his client about

it.” Id. at 734 (Mansfield, J., concurring specially) (quoting Padilla v. Kentucky,

559 U.S. 356, 369 (2010)). We found that “the evidence of [his] guilt is not

overwhelming” and that Diaz could make a rational choice to “roll the dice” and

go to trial for reasons including that the State had to prove his “specific intent to

defraud or injure another” while Diaz “maintained he believed the identification

card he obtained in Texas was legitimate.” Id. at 733 (majority opinion). By

contrast, Sothman’s plea counsel committed no equivalent blatant omission in

his advice about her parole prospects, and unlike Diaz, Sothman lacked a

realistic possibility of acquittal. And the procedural posture matters. Diaz was a

direct appeal by the State from a district court ruling allowing the defendant to
 27

withdraw his guilty plea on that ground. Id. at 725. We affirmed that ruling on

his direct appeal. Id. Sothman too was offered the chance to withdraw her plea,

but she declined the offer, waited several years to challenge her plea in this

postconviction proceeding, and now appeals from an adverse district court

ruling.

Nor does the dissent’s reliance on Garmon v. Lockhart, 938 F.2d 120, 122

(8th Cir. 1991), move the ball forward. That case turned on plea counsel’s

mistake of law as to parole eligibility. Id. at 120–21. Counsel erroneously advised

Garmon that he would be eligible for parole in five years. Id. at 121. That advice

was off by a decade—the client actually was not eligible until fifteen years. Id. at

120–21. Both breach and prejudice were crystal clear. But getting parole

eligibility wrong by ten years differs from predicting the timing of a client’s

discretionary release.

The dissent also touts the prosecutor’s remarks at the guilty plea and

sentencing hearings and in his promised letter to the BOP urging Sothman’s

release on parole due to the accidental nature of this tragic death. Taken in

context, the prosecutor’s remarks downplaying her culpability do not show

Sothman had a good case to roll the dice and take to trial. Accidental drowning

fits Sothman’s crime of conviction: child endangerment resulting in death. She

had no factual or legal defense. Having reached the plea agreement on that

charge, the prosecutor was obligated to advocate for its acceptance and was

contractually required to write the BOP to urge her release on parole. See State

v. Beres, 943 N.W.2d 575, 582 (Iowa 2020) (noting plea bargains are akin to
 28

contracts); State v. Lopez, 872 N.W.2d 159, 173 (Iowa 2015) (discussing State’s

obligation to advocate for the plea agreement). And the elected county attorney,

in his oration before a crowded courtroom and media, presumably took the

opportunity to explain to an outraged public why he did not pursue a murder

charge for the death of this child.

We affirm the district court’s finding that Sothman failed to prove

prejudice.

B. Right to a Public Hearing. Sothman’s second ground for reversal

argues her plea counsel was ineffective for failing to assert her right to have a

“plea proceeding” in open court or having her waive that right. The district court

took Sothman’s guilty plea in open court on August 6, 2016. But just before

commencing her sentencing hearing in open court on September 23, counsel

met with the judge in chambers where Sothman was placed under oath and

questioned on the record about her choice to plead guilty. Her plea counsel did

not object to that in-chambers proceeding, or elicit Sothman’s consent to proceed

in chambers rather than in open court. Regardless of the nature of the

in-chambers proceeding, we agree with the district court, court of appeals, and

the State that she must prove prejudice and failed to do so. We begin our analysis

with an overview of the right to a public trial or hearing.

A defendant’s right to a public trial is protected by both the United States

and Iowa Constitutions. U.S. Const. amend. VI (“In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial . . . .”); Iowa Const.

art. I, § 10 (“In all criminal prosecutions . . . the accused shall have a right to a
 29

speedy and public trial . . . .”). “The public-trial right also protects some interests

that do not belong to the defendant. After all, the right to an open courtroom

protects the rights of the public at large, and the press, as well as the rights of

the accused.” Weaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017); see also

Des Moines Reg. & Trib. Co. v. Iowa Dist. Ct., 426 N.W.2d 142, 144 (Iowa 1988)

(“The right to an open public trial is not solely in the possession of the accused,

the public, or the press.”). Indeed, “there can be little doubt that the explicit Sixth

Amendment right of the accused is no less protective of a public trial than the

implicit First Amendment right of the press and public.” Waller v. Georgia,

467 U.S. 39, 46 (1984). The public has an interest in monitoring criminal cases

such as Sothman’s involving the accidental death of a young child and the

resulting punishment. Not surprisingly, fifteen to twenty persons including the

press sat in the courtroom gallery for her sentencing.

“The knowledge that every criminal trial is subject to contemporaneous

review in the forum of public opinion is an effective restraint on possible abuse

of judicial power.” In re Oliver, 333 U.S. 257, 270 (1948). “In addition to ensuring

that [a] judge and [a] prosecutor carry out their duties responsibly, a public trial

encourages witnesses to come forward and discourages perjury.” Waller,

467 U.S. at 46. To determine if “a constitutional right of public access applies to

a certain criminal proceeding,” we “must consider whether the place and process

have historically been open to the press and general public” and “whether public

access plays a significant positive role in the functioning of the particular process

in question.” Des Moines Reg. & Trib. Co., 426 N.W.2d at 145. The State and
 30

Sothman disagree whether the public trial right extended to the district court’s

in-chambers proceeding conducted immediately before her sentencing in open

court.

In Waller v. Georgia, the Supreme Court extended the right to a public trial

to pretrial suppression hearings. 467 U.S. at 47. Conducting suppression

hearings in public is important because “[a] challenge to the seizure of evidence

frequently attacks the conduct of police and prosecutor.” Id. The Court noted

that a suppression hearing resembles a bench trial because witnesses are sworn

in and attorneys argue on behalf of their clients and that “in many cases, the

suppression hearing was the only trial, because the defendants thereafter

pleaded guilty pursuant to a plea bargain.” Id. (emphasis added). Notably,

Sothman was questioned under oath and on the record in the September 23

in-chambers proceeding to confirm she did not seek to vacate her guilty plea,

which resolved this case without a trial. In Sothman’s view, what happened in

chambers was tantamount to a renewed plea hearing that must be conducted in

open court.

Plea hearings indeed are to be conducted in open court. Iowa R. Crim. P.

2.8(2)(b) (“Before accepting a plea of guilty, the court must address the defendant

personally in open court . . . .”); id. at 2.10(2) (“If a plea agreement has been

reached by the parties the court shall require the disclosure of the agreement in

open court at the time the plea is offered.”). This has long been the law in Iowa.

See Iowa Code § 13800 (1931) (“The plea of guilty can only be made in open court
 31

. . . .”). Thus, guilty plea proceedings have “historically been open to the press

and general public.” Des Moines Reg. & Trib. Co., 426 N.W.2d at 145.

In United States v. Haller, the Second Circuit concluded that “there is a

right of access to plea hearings and to plea agreements.” 837 F.2d 84, 86 (2d Cir.

1988). Convictions based on guilty pleas are “the most common form of

adjudication of criminal litigation.” Id. The Haller court reasoned that plea

hearings are traditionally open to the public and public access to plea hearings

“serves to allow public scrutiny of the conduct of courts and prosecutors.” Id. at

86–87. We agree. See State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008) (“While

proper use of plea agreements is essential to the efficient administration of

justice, improper use of the agreements threatens the liberty of the criminally

accused as well as ‘the honor of the government’ and ‘public confidence in the

fair administration of justice.’ ” (quoting State v. Kuchenreuther, 218 N.W.2d 621,

624 (Iowa 1974))).

The fighting issue, however, is whether Sothman’s September 23

in-chambers proceeding constituted another plea hearing required to be in open

court. Sothman had not filed a motion in arrest of judgment and did not seek to

withdraw her guilty plea. But because the court placed Sothman under oath and

questioned her on the record about her decision not to withdraw her guilty plea,

we conclude Sothman’s counsel should have elicited her informed consent to

proceed in chambers or objected and asked that the court conduct the
 32

proceeding in open court.3 We find that Sothman’s plea counsel breached an

essential duty by failing to do so.

Sothman contends she does not have to prove prejudice because the denial

of her right to a public hearing is a structural error. For most errors raised on

ineffective-assistance-of-counsel claims, the criminal defendant must show

prejudice to be entitled to relief “because ‘the right to the effective assistance of

counsel is recognized not for its own sake, but because of the effect it has on the

ability of the accused to receive a fair trial.’ ” Lado v. State, 804 N.W.2d 248, 251

(Iowa 2011) (quoting United States v. Cronic, 466 U.S. 648, 658 (1984)). Every

“trial error” does not always “undermine the reliability and fairness of the legal

proceeding.” Id. at 252. A showing of prejudice is not required for certain

ineffective-assistance-of-counsel claims that rise to the level of structural

errors.4 Id. Structural errors are errors that “affect[] the framework within which

3Under certain circumstances, courts may exclude the public from a proceeding when
(1) [t]he party seeking to close the hearing must advance an overriding interest
that is likely to be prejudiced; (2) the closure must be no broader than necessary
to protect that interest; (3) the trial court must consider reasonable alternatives
to closing the proceedings; and (4) the trial court must make findings adequate to
support the closure.
State v. Schultzen, 522 N.W.2d 833, 836 (Iowa 1994) (quoting Waller, 467 U.S. at 48); see also
Weaver, 137 S. Ct. at 1909 (“[C]ourtroom closure is to be avoided, but . . . there are some
circumstances when it is justified. . . . Though these cases should be rare, a judge may deprive
a defendant of his right to an open courtroom by making proper factual findings in support of
the decision to do so.”).
4For ineffective-assistance-of-counsel claims, the Supreme Court has presumed prejudice
when
(1) counsel is completely denied at a crucial stage of the proceeding; (2) where
counsel fails to subject the prosecution’s case to meaningful adversary testing; or
(3) where surrounding circumstances justify a presumption of ineffectiveness, for
example, where counsel has an actual conflict of interest in jointly representing
multiple defendants.

State v. Feregrino, 756 N.W.2d 700, 707 (Iowa 2008) (citing Cronic, 466 U.S. at 659).
 33

the trial proceeds.” Krogmann, 914 N.W.2d at 313 (quoting Arizona v. Fulminate,

499 U.S. 279, 310 (1991)). When prejudice is presumed, the criminal defendant

does not have to prove that but for his or her trial counsel’s error, “he would

have obtained a different outcome.” Lado, 804 N.W.2d at 252.

Recently, in Weaver v. Massachusetts, the Supreme Court declined to

presume prejudice for a postconviction claim alleging ineffective assistance

based on a failure to object to a public trial violation when the public was

excluded during jury selection due to space limitations. 137 S. Ct. at 1906, 1912.

The Court first reviewed three justifications for why an error is considered

structural when the error is preserved and presented on direct appeal: (1) “if the

right at issue is not designed to protect the defendant from erroneous conviction

but instead protects some other interest,” (2) “if the effects of the error are simply

too hard to measure,” or (3) “if the error always results in fundamental

unfairness.” Id. at 1908. The justifications are not meant to be rigid and “[a]n

error can count as structural even if the error does not lead to fundamental

unfairness in every case.” Id. “The fact that the public-trial right is subject to

[the Waller] exceptions suggests that not every public-trial violation results in

fundamental unfairness,” especially for the defendant. Id. at 1909–10. The Court

noted the right to public trial protects more than just the defendant’s interests

and the effect of a violation is difficult to measure, which supports structural

error review of preserved violations of public trial rights raised on direct appeal.

Id. at 1910.
 34

After the foregoing examination of violations of public trial rights when

error is preserved and raised on direct appeal, the Weaver Court analyzed

whether to require proof of prejudice arising from violations of public trial rights

first raised in postconviction proceedings through an

ineffective-assistance-of-counsel claim. Id. The Court concluded the burden on

establishing prejudice was properly on the defendant in postconviction cases

because failing to object had deprived the trial court and parties of “the chance

to cure the violation either by opening the courtroom or by explaining the reasons

for closure” and failing to raise the issue on direct appeal increased “systemic

costs of remedying the error.” Id. at 1912. The passage of time since the

conviction results in witnesses losing their memories or becoming unavailable,

missing or misplaced physical evidence, and delayed or lack of guidance through

the appellate review process. Id. Additionally, “ ‘[a]n ineffective-assistance claim

can function as a way to escape rules of waiver and forfeiture and raise issues

not presented at trial,’ thus undermining the finality of jury verdicts.” Id.

(alteration in original) (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)).

Three justices authored or joined concurring opinions also requiring a showing

of prejudice. Id. at 1914 (Thomas, J., concurring, joined by Gorsuch, J.); id. at

1916 (Alito, J., concurring, joined by Gorsuch, J.). Weaver is fatal to Sothman’s

public trial claim under the Federal Constitution.

Sothman urges us to follow the Weaver two-justice dissent under the Iowa

Constitution. See id. at 1917 (Breyer, J., dissenting, joined by Kagan, J.). We

disagree based on the seven-justice majority in Weaver and our Iowa precedent.
 35

Sothman could have raised the public trial issue by objecting during the

in-chambers proceeding. She failed to do so.

We have only recognized structural error for

ineffective-assistance-of-counsel claims raised in postconviction proceedings

under limited circumstances. See, e.g., Krogmann, 914 N.W.2d at 321–24

(involving an unlawful, total freeze of assets that impaired “the defendant’s ability

to be the master of his or her own defense”); Lado, 804 N.W.2d at 253 (dismissing

a PCR for nonprosecution). “Weaver on its face is limited solely to postconviction

claims alleging ineffective assistance for failure to assert a right to a public trial.”

Krogmann, 914 N.W.2d at 323. We are persuaded by the policy rationales in

Weaver and Hill to require the defendant prove prejudice when a

right-to-public-trial error was not preserved and is first raised in a

postconviction-ineffective-assistance-of-counsel claim.

Sothman recognizes that “[i]t appears no other state, in consideration of

its own state constitution, ha[s] declined to follow Weaver in a denial of a public

trial where error was not preserved.” Indeed, other courts are following Weaver

to require prejudice for unpreserved public trial violations based on jury selection

courtroom closures raised through ineffective-assistance-of-counsel claims.

See, e.g., Pafford v. State, 574 S.W.3d 735, 737–38 (Ark. Ct. App. 2019)

(“Strickland prejudice is not shown automatically. Instead, the burden is on the

defendant . . . .” (quoting Weaver, 137 S. Ct. at 1911)); State v. Thaniel, 192 A.3d

804, 817 (Md. Ct. Spec. App. 2018) (“[I]t appears that the postconviction court

treated this claim as if it had been a preserved claim of structural error in a
 36

direct appeal. [The defendant’s] claim was, in fact, nothing of the sort, and his

total inability to show Strickland prejudice bars relief on this claim.”);

Commonwealth v. Kolenovic, 84 N.E.3d 781, 796, 798 (Mass. 2017) (concluding

there was “no reversible error” under Weaver because “[the defendant] has not

argued that the closure had any effect on the proceedings, nor has he pointed to

any misbehavior by any prospective juror, the judge, or the parties”); Roberts v.

State, 535 S.W.3d 789, 797, 799 (Mo. Ct. App. 2017) (applying Weaver “because

the reason for placing the burden on [the defendant] is the same” and finding

that “[h]ad [the defendant] objected to the courtroom closure, the trial court

would have had the opportunity to address the situation”); Jeremias v. State,

412 P.3d 43, 46, 49–50 (Nev. 2018) (adopting Weaver under the Nevada

Constitution partly because “correcting the error . . . would encourage

defendants who are aware their rights are being violated to do nothing to prevent

it, knowing that they can obtain a new trial as a matter of law in the event they

are convicted”); Monreal v. State, 546 S.W.3d 718, 727–28 (Tex. Ct. App. 2018)

(“We conclude the Court’s reasoning in Weaver controls the outcome in this case.

[The defendant] is not entitled to a presumption of prejudice because he raised

the closed-courtroom complaint via an ineffective-assistance claim.” (footnote

omitted)); In re Salinas, 408 P.3d 344, 345, 347, 352 (Wash. 2018) (holding under

both the Federal and Washington Constitutions that “Weaver rejects the notion

that the voir dire closure in Salinas, even though such closure is a ‘structural

error,’ is presumed prejudicial” because “there was no objection at trial and no

assertion of a public-trial violation on direct appeal”). We hold that Weaver
 37

controls Sothman’s postconviction claims under article I, section 10 of the Iowa

Constitution and requires her to prove she was prejudiced by the in-chambers

proceeding.5

A contrary holding would undermine the finality of guilty pleas. Many

criminal cases have included proceedings conducted in part in chambers. To

allow defendants to vacate guilty pleas without proving prejudice from the

in-chambers proceeding would trigger a wave of PCRs, as the State’s counsel

warned at oral argument. It would also lead to gamesmanship: defendants could

proceed in chambers, and if they didn’t like the outcome, get a second bite at the

apple. In State v. Straw, we refused to adopt a per se rule or a structural error

standard for ineffective-assistance-of-counsel claims premised on the district

court failing to tell the defendant the maximum sentence he or she was facing

by pleading guilty. 709 N.W.2d at 137. We did so because “if we adopted a per se

rule, some defendants would grin like a Cheshire cat as we gave them a second

bite at the apple—even though they committed the crime and actually knew the

maximum length of punishment for the crime.” Id. The same reasoning applies

here. Convictions should not be reversed in postconviction proceedings unless

the error prejudiced the defendant. Id. at 138.

5In State v. Jones, a case decided before Weaver, our court addressed on direct appeal
the defendant’s challenge to the trial court’s failure to read its bench trial verdict in open court.
817 N.W.2d 11, 15–21 (Iowa 2012). We concluded the error was cured when the verdict was read
in open court at a subsequent hearing on posttrial motions. Id. at 21. Jones is inapplicable when
the public trial error was not preserved and is first raised in a postconviction action through an
ineffective-assistance-of-counsel claim.
 38

Sothman wanted to avoid the trauma of a public spectacle. The press was

in the courtroom. That is why her plea counsel allowed her to be placed under

oath in an in-chambers proceeding. Sothman fails to show the outcome would

have been different in open court. We agree with the court of appeals that the

in-chambers proceeding was not fundamentally unfair. We reject as speculative

her claim that her father could have changed her mind if he had heard the

in-chambers proceeding. See Pafford, 574 S.W.3d at 738 (rejecting the

“conclusory assertion” that defendant was prejudiced by his family’s exclusion

from the courtroom during jury selection because they were “not privy to the

responses of potential jurors”). Sothman’s public hearing claim fails on the

prejudice prong because as explained above, she failed to prove she would have

withdrawn her guilty plea and taken the criminal case to trial.

IV. Conclusion.

For those reasons, we affirm the decision of the court of appeals and affirm

the district court judgment dismissing Sothman’s claims for postconviction

relief.

DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT

AFFIRMED.

Christensen, C.J., and Mansfield, McDonald, and Oxley, JJ., join this

opinion. McDermott, J., files a dissent, in which Appel, J., joins.
 39

#19–1837, Sothman v. State

McDERMOTT, Justice (dissenting).

We can trust that defendants in criminal cases—whatever their potential

challenges in understanding the nuances of criminal procedural rules or

defensive legal strategies—will readily understand a lawyer’s statements about

one subject: how long they should expect to be imprisoned if convicted. Anna

Sothman understood her lawyer when he told her—repeatedly, and in writing—

that the average period of incarceration for her offense is 4.6 years. But the

actual best-case scenario, according to the Iowa Board of Parole, involved her

serving more than three times that amount—15 years. What’s more, her lawyer

led her to believe that she should expect to be released from prison even sooner

than the average based on the circumstances of her case.

Because her lawyer severely misinformed her, Sothman misunderstood

the consequences of her guilty plea, which she would not have entered had she

been advised adequately. Yet having established, in my view, a clear violation of

her constitutional right to the effective assistance of counsel, she obtains no

relief from our court. I must respectfully dissent.

I.

A defendant’s right to the “effective assistance of competent counsel” under

the Sixth Amendment of the United States Constitution extends to the plea-

bargaining process. Lafler v. Cooper, 566 U.S. 156, 162 (2012) (quoting McMann

v. Richardson, 397 U.S. 759, 771 (1970)). Sothman claims that her lawyer

provided ineffective assistance in two respects: (1) by providing her incorrect
 40

information about the consequences of her guilty plea, and (2) by failing to object

to an on-the-record private hearing in the judge’s chambers that tainted the

public sentencing hearing in open court that she was entitled to.

Criminal defendants surrender important constitutional rights by pleading

guilty. Due process thus requires that defendants who enter guilty pleas do so

“voluntarily and intelligently.” State v. Philo, 697 N.W.2d 481, 488 (Iowa 2005).

Entering a guilty plea voluntarily and intelligently means that the accused “has

a full understanding of the consequences of a plea.” Id. (quoting State v. Kress,

636 N.W.2d 12, 21 (Iowa 2001)).

A “guilty plea cannot be a conscious, informed choice,” we have said, “if

the accused relies upon counsel who performs ineffectively in advising him

regarding the consequences of entering a guilty plea and of the feasible options.”

Saadiq v. State, 387 N.W.2d 315, 325–26 (Iowa 1986) (quoting Hawkman v.

Parratt, 661 F.2d 1161, 1170 (8th Cir. 1981)). To prove ineffective assistance of

counsel, Sothman must prove by a preponderance of the evidence (1) that her

lawyer failed to perform an essential duty and (2) that she was prejudiced by her

lawyer’s failure. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002).

A.

A word, first, about the tragedy that gave rise to this appeal. Every party

to this case—the State, the medical examiner, Sothman herself—has

acknowledged that the child’s death was a tragic mistake. The State

characterized it as “a lapse in judgment” in which “unfortunately, on one day

this year in Pella, Iowa, the universe aligned” with fatal consequences. The
 41

medical examiner, for its part, determined the child’s cause of death was

“accidental drowning.” And Sothman, a mother of three with no criminal history

and no evidence of being anything other than a loving, attentive mother save for

this one fateful interval, at all times described her daughter’s drowning as a

horrific accident.

The negligent act that gave rise to this particular crime helps explain why

the State was willing to permit Sothman to serve only six months in prison before

being resentenced, at which point Sothman likely would have been released from

prison. It was at that time, under the belief that she would be resentenced after

six months, that Sothman pleaded guilty. Only afterward (after Sothman’s guilty

plea and the start of her incarceration) did the lawyers realize that, because her

crime was a “forcible felony,” she would not be eligible for resentencing after six

months but instead would be subject to release only by action of the parole

board.

Under her plea agreement, Sothman pleaded guilty to child endangerment

resulting in death, a class “B” felony. See Iowa Code § 726.6(1)(a), (3)–(4) (2016).

The conviction came with a maximum indeterminate sentence not to exceed fifty

years in prison and $150,000 in restitution. Id. §§ 726.6(4), 910.3B.

B.

The “essential duty” that Sothman’s lawyer failed to perform relates to the

information he provided about parole. There are two parts to this failure. First,

and most obviously, is that the lawyer provided Sothman with incorrect

information about the average length of incarceration that defendants serve
 42

before being granted parole. Second, and related, is that her lawyer consistently

emphasized her likelihood of serving less than the (incorrect) average length of

incarceration.

Sothman’s lawyer informed her that the average length of incarceration for

her crime was 4.6 years. But not long after her incarceration began, Sothman

learned that she couldn’t even apply for parole until after serving almost a year,

let alone have any realistic chance of being released in that time. A letter from

an Iowa Board of Parole administrative law judge to Sothman’s new lawyer stated

that the maximum earned-time credits that an inmate in Sothman’s position

could receive would reduce the 50-year sentence only to 22.7 years. To put it

into perspective, when Sothman entered her guilty plea, her surviving children

were three and four years old; the discrepancy between 4.6 years and 22.7 years

represents the difference between being released in time to attend her youngest

child’s eighth birthday, or twenty-sixth birthday.

The letter from the board also informed Sothman of the minimum term of

incarceration that she would serve if she were granted a discretionary release:

“Depending on behavior in prison, one could serve as little as 30% or as much

as 100% of their sentence.” Thirty percent of 50 years is 15 years. That’s still

more than triple the “average” that her lawyer told her to expect when she

entered her guilty plea.

The majority, for reasons unclear, applies the thirty-percent figure stated

in the letter not to the actual sentence (50 years) but to a 50-year sentence after

applying the maximum earned-time credits for which an inmate is eligible (22.7
 43

years). This seems to me a misreading. The letter doesn’t say that the

percentages apply to an inmate’s sentence “after crediting earned deductions for

good time.” And taking the other percentage referenced in the same line, I

certainly don’t read the board’s statement that “[d]epending on behavior in

prison, one could serve . . . as much as 100% of their sentence” to mean that

serving “100%” equates to 22.7 years—particularly since good-time credits

themselves depend on behavior in prison. None of the parties suggest this

interpretation either. The majority’s resulting calculation that Sothman’s best-

case scenario is really 6.81 years appears wrong, and thus the conclusion we’re

invited to draw from it—that maybe the advice wasn’t too far off—is likewise

wrong.

The majority recites several times that Sothman’s lawyer relied on the

Legislative Services Agency (LSA) fiscal note that showed the average as 4.6

years, as if that might resolve the question of whether the lawyer breached his

duty to Sothman. As an initial matter, we have never taken judicial notice of the

accuracy of LSA fiscal notes. But more importantly, the question isn’t whether

the lawyer acted in good faith or tried hard. In this situation, we instead must

look to whether the lawyer in fact provided accurate information on this critical

issue. “The erroneous advice of legal counsel, standing alone, would be sufficient

to establish the first prong of the Strickland test—the deficiency of legal counsel’s

performance.” Howard v. State, 783 S.W.2d 61, 62 (Ark. 1990). In this case, the

information provided, regardless of its source, was materially erroneous.

Whether the lawyer accurately relayed inaccurate information to his client
 44

doesn’t change the fact that the inaccurate advice itself caused Sothman to enter

a guilty plea that was not “voluntary and knowing.”

Further, and equally problematic, her lawyer consistently downplayed her

likelihood of serving more than the average length of incarceration and

exaggerated her likelihood of being quickly paroled. So not only was Sothman

led to believe an incorrect average for the length of time defendants serve for her

crime, she was led to believe that she stood a good chance of being released on

a time frame likely to beat the average.

It’s true, as the majority notes, that besides the misstatement of the

average length of incarceration, her lawyer otherwise never directly misstated

the details of her sentence or parole. The lawyer told Sothman that there were

“no guarantees” on any parole request and that “the ultimate decision is out of

your hands.” But we must consider a lawyer’s statements in their full context

when determining whether a client was materially misled. A statement made,

but then immediately clarified or appended, alters its meaning and thus may

create a different impression on its recipient. In this case, whenever the lawyer

stated the penal consequences of her guilty plea, he instantly followed the

statement with a reassuring clarification that Sothman would be eligible for

parole immediately:

There is no mandatory minimum sentence of any kind on this
charge. . . . At the time of sentencing, the parties will request a joint
recommendation for imposition of a prison sentence not to exceed
50 years. You would be immediately eligible for parole, and the State
is in agreement that we can file a Motion to Reconsider your
sentence.

-Lawyer’s letter to Sothman, dated July 29, 2016.
 45

If you accept the plea offer provided, you will receive a 50 year
sentence, but be eligible for immediate parole.6

-Lawyer’s letter to Sothman, dated August 2, 2016.

As we’ve discussed, the sentence to be imposed would be a 50 year
sentence, on which you would be elgible for immediate parole.

-Lawyer’s letter to Sothman, dated August 9, 2016.

As you know, you plead[ed] guilty to Child Endangerment Resulting
in Death, which is punishable by a penalty of up to 50 years of
incarceration in prison. We’ve also discussed that typical
individuals, pursuant to a Legislative Services Study, serve on
average 4.6 years on this type of sentence. There is no minimum
sentence and you are eligible for parole immediately upon your
sentencing.

-Lawyer’s letter to Sothman, dated August 16, 2016.

Yes, her lawyer correctly stated that the court would impose a fifty-year

sentence and made no guarantee of any outcome. But to conjoin each such

statement with a separate assurance of eligibility for “immediate parole”

communicated to Sothman that she should reasonably expect an outcome at

least within the range of an immediate parole. “[F]or the purposes of determining

whether a guilty plea was involuntary due to confusion over the plea agreement,”

we have said that “the important inquiry is what the defendant, not the defense

attorney, understood.” Philo, 697 N.W.2d. at 489.

In Strader v. Garrison, the United States Court of Appeals for the Fourth

Circuit found that a defendant “grossly misinformed” about parole eligibility

dates by his lawyer had been deprived of the effective assistance of counsel. 611

6Use of the conjunction “but” illustrates the point perfectly: “but” is “used to introduce

something contrasting with what has already been mentioned.” But, New Oxford American
Dictionary 238 (3d ed. 2010).
 46

F.2d 61, 65 (4th Cir. 1979). “When the erroneous advice induces the plea,

permitting him to start over again is the imperative remedy for the constitutional

deprivation.” Id. Similarly, in Beavers v. Saffle, the Tenth Circuit Court of

Appeals stated that “attorney advice which misrepresents the date of parole

eligibility by several years can be objectively unreasonable” and thus “may be

sufficient to meet the prejudice requirement.” 216 F.3d 918, 925 (10th Cir.

2000).

Although an attorney is not required to provide any advice about parole,

“that does not leave a court, or an attorney, free to misinform a defendant

regarding collateral consequences of his plea.” Meier v. State, 337 N.W.2d 204,

207 (Iowa 1983) (en banc). When a defendant “has been affirmatively misled by

an attorney concerning the consequences of a plea,” we have said that “the plea

may be held to be invalid.” Mott v. State, 407 N.W.2d 581, 583 (Iowa 1987),

abrogation on other grounds recognized by Perez v. State, 816 N.W.2d 354, 360

(Iowa 2012). Similarly, when “the misinformation is of substantial importance to

the defendant and is considered by him in deciding to plead guilty,” the plea is

likewise “involuntarily and invalid.” Saadiq, 387 N.W.2d at 324. In creating the

mistaken expectation about the consequences of her plea that Sothman then

reasonably relied on, the lawyer breached an essential duty to his client.

Sothman established the first requirement of our ineffective-assistance-of-

counsel analysis.
 47

C.

The second requirement—“prejudice”—involves a “but-for” inquiry: Is

there a reasonable probability that but for the lawyer’s failure, the proceeding

would have had a different result? State v. Taylor, 689 N.W.2d 116, 134 (Iowa

2004). The majority cites several grounds to support its determination that

Sothman failed to show prejudice.

The majority first relies on the district court’s finding that Sothman failed

to state that she would have insisted on taking the case “to trial.” Here’s the

testimony that the majority finds lacking:

Q. If you had known what you were truly facing, would you
have accepted the plea agreement?

A. No.

True, Sothman didn’t say, “I would not have accepted the plea agreement and

would have proceeded to trial.” But by not accepting the plea agreement,

Sothman by necessity brings into play proceeding to trial. There was no other

plea offer on the table. At that time, she faced a binary decision. Sothman’s

lawyer testified that he discussed with Sothman the fact that unwinding her

guilty plea involved the possibility of going to trial.

Equally important, requiring defendants to recite certain magic words (“I

would have gone to trial”) risks missing the key inquiry of the prejudice

determination: Would the proceeding have had a different outcome? It was

enough for Sothman to testify that she would have withdrawn her plea and thus

necessarily continued litigating the charges toward a different outcome—
 48

including, yes, a possible trial—if her lawyer had presented accurate

information. See Diaz v. State, 896 N.W.2d 723, 733–34 (Iowa 2017).

The majority finds not only a failure by Sothman to recite the magic words

but also that Sothman indeed would not have gone to trial in any event because

she wished to avoid putting herself and her family through a public trial and

because she wished to reunite her other two children with their father as soon

as possible. (The children had been placed in emergency foster care with her

husband’s sister, and although they could have supervised visits with the

children, apparently the Department of Human Services forbade the children

from living at home until Sothman left to start her sentence.) Yet Sothman’s

testimony and actions make clear that her primary concern in plea-bargaining

was simple: to find the fastest path to her own return home to raise her two

young children. She testified:

Q. Why did you agree to take the deal?

A. Because it was going to be the fastest way to get me home.
We had already lost one member of the family. I just wanted to put
the rest of it back together. At the time this appeared to be the
easiest way to do that.

Her initial plea occurred at a time when all parties—her lawyer, the

prosecutor, and even the judge—believed that Sothman would be eligible for

resentencing six months after she pleaded guilty and started her incarceration.

When the parties later realized this expedited release tactic was unavailable

(because the crime to which she agreed to plead guilty was a forcible felony),

Sothman agreed to leave her guilty plea undisturbed. But she did so based on

the understanding that (1) the State after just six months would submit a letter
 49

to the parole board on her behalf recommending release, (2) the average period

of incarceration for her crime was 4.6 years, (3) she was eligible for “immediate

parole,” and (4) she was an “excellent candidate” (according to her lawyer) for

parole.

The majority’s counterfactual doesn’t account at all for what drove the plea

negotiations from the start: how long she should expect to be imprisoned. None

of the many letters from her lawyer quoted above—all of which discuss her

sentence and eligibility for parole—mention the issues that the majority relies on

(avoiding the trauma of trial or reuniting her children with her husband) as in

any fashion propelling her decision. These considerations were raised only in

response to direct questions about them on cross-examination at her

postconviction relief hearing and at best serve as secondary considerations to

the length-of-incarceration concern.

The majority next suggests that Sothman cannot show prejudice because

“she had no realistic defense to her crime of conviction.” Viewed from this angle,

Sothman’s lawyer presumably could never be ineffective because Sothman never

had a chance at acquittal. The court seemingly adopts a harmless error standard

by precognition, without any trial conducted, any prosecution presented, any

evidentiary challenges made, and any defenses advanced. Suffice it to say that

conjecture about the outcome of a jury trial that never came close to taking

place—Sothman pleaded guilty even before formal charges were filed—provides

awfully wispy smoke signals from which to decipher whether prejudice is lacking.
 50

But more importantly, it’s not the defendant’s burden to show a reasonable

probability of an acquittal at trial. The law doesn’t require certainty of a

successful result, or anything close to it, for Sothman to prove prejudice from

her lawyer’s mistake. Our cases have analyzed the necessary showing through

multiples lenses. In State v. Taylor, we stated that the defendant need only prove

“a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” 689 N.W.2d at 134 (emphasis

added) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). More

recently, in Diaz v. State, we stated that the defendant needed to show that a

decision to reject the plea bargain “would have been a rational choice” under the

circumstances. 896 N.W.2d at 723–33 (emphasis added) (citing Padilla v.

Kentucky, 559 U.S. 356, 372 (2010)).

Both inquiries, related as they are, lead to the same answer. Sothman

demonstrated a “reasonable probability” of a different outcome since, as

discussed, she would not have pleaded guilty (had her lawyer provided accurate

information about her parole) and the only other option on the table was trial.

She likewise has demonstrated that rejecting the plea would have been a

“rational” decision. A defendant may be prejudiced, even if she lacks a legal or

factual defense to the crime, when it would be rational for her to “decide to ‘roll

the dice’ if presented with a plea deal certain to be almost as damaging as a loss

at trial.” Id. That’s precisely the situation in this case; even the State at oral

argument conceded that Sothman’s plea agreement left her with the exact same

punishment that she would have received had she gone to trial and lost.
 51

Finally, the majority suggests that she wasn’t prejudiced because she

would have taken the plea in any event to avoid a first-degree murder or other

heightened charge. Sothman, for her part, testified that the threat of other

charges played no role in her decision, which I believe the record bears out. It’s

also extremely difficult to square the prosecutor’s willingness to agree to

reconsideration of Sothman’s sentence after only six months (as agreed under

the initial plea deal) or to write a letter recommending parole after six months

(as agreed under the revised plea deal) if the prosecution actually believed

Sothman guilty of murder. At Sothman’s sentencing, the prosecutor

characterized her conduct as involving “inaction, indecision, or mistakes.” The

prosecutor’s letter to the parole board similarly framed the conduct as “a lapse

in judgment” and opined: “The loss of her child was clearly the harshest

punishment that could be imposed. Having Ms. Sothman serve a number of

years of incarceration will punish her no more than the punishment she has

already suffered.” These are not the words of a prosecutor intent on pursuing

more severe charges with more severe punishments. The majority suggests that

this might not mean much since, having agreed to this plea bargain, the

prosecutor was “obligated” to advocate for its acceptance. But certainly the

prosecutor is not obligated to make misrepresentations to sell the plea to the

court; indeed, he’s ethically- and duty-bound to the contrary.

In Garmon v. Lockhart, the Eighth Circuit Court of Appeals held that a

defendant whose counsel had erroneously informed him that he would have to

serve only one-sixth of his plea bargain sentence was denied the effective
 52

assistance of counsel. 938 F.2d 120, 122 (8th Cir. 1991). The state argued that

the defendant’s guilty plea was driven by the threat of a significantly longer

prison term than the plea bargain provided for. Id. at 121. But the defendant

testified that he pleaded guilty because his lawyer led him to believe that he

would be paroled in five years, which would allow him “to get out [of prison] and

be a father to [his infant son].” Id. (alterations in original). His lawyer

acknowledged the same fact, stating that the defendant wanted to get out of

prison before the son was “a grown man.” Id. The court found that, absent the

lawyer’s erroneous advice about the defendant’s parole eligibility, the defendant

would not have pleaded guilty and gone to trial. Id. at 121–22. The court thus

held that the lawyer’s breach affected the outcome of the plea process and

established prejudice. Id.

In Diaz, we found that a defendant whose lawyer breached a duty in

advising his client about the collateral consequences of a guilty plea (in that case,

related to deportation consequences) had proved prejudice in circumstances with

potential results remarkably similarly to this case:

By pleading guilty, he all but guaranteed he would never be
physically present in [his young daughter’s] life to help her grow. If
he had not pled guilty, he could have defended himself at trial. He
could have asserted various evidentiary issues and challenged the
State’s ability to prove all elements of the charge. He could have
hoped for a better plea bargain by holding out for a plea of guilty to
[another charge]. Finally, he could have otherwise rationally decided
to hold the State to its burden of proof.

Diaz, 896 N.W.2d at 734 (citations omitted).

Taken individually or collectively, the majority’s grounds for finding a lack

of prejudice fail. Sothman, to the contrary, has shown prejudice under our
 53

caselaw. Having proved both her lawyer’s breach of an essential duty and that

she was prejudiced by the breach, Sothman has established her claim for

ineffective assistance of counsel. Because I believe that Sothman establishes a

right to relief on this ground, I will not address her other ineffective-assistance

argument.

II.

In 2017, the board denied Sothman’s first parole request. In an

explanatory letter, the board stated that “[t]he seriousness of your crime or your

criminal history suggests to the Board you have not yet served enough time to

warrant an early release.” Sothman received the same denial, with the exact

same explanation, in 2018. And again in 2019. (That’s as recent as our record

goes on the parole denial documents.) Sothman remains incarcerated. She has

already surpassed in prison the 4.6 years that she’d been led to believe before

pleading guilty was the average length of time she would serve.

“Duration of incarceration unquestionably goes to the very heart of

voluntariness required for a valid waiver of a defendant’s right to trial on the

charge alleged, as well as the voluntariness of a defendant’s waiver of the other

rights to be accorded . . . .” State v. White, 587 N.W.2d 240, 246 (Iowa 1998) (en

banc) (quoting State v. Irish, 394 N.W.2d 879, 844 (Neb. 1986) (Shanahan, J.,

dissenting)). Estimates suggest that ninety-five percent of criminal convictions

are based on guilty pleas, most of which result from plea bargains. See William

Ortman, When Plea Bargaining Became Normal, 100 B.U. L. Rev. 1437, 1437

(2020). No less an authority than the United States Supreme Court has declared
 54

that plea-bargaining “is the criminal justice system.” Missouri v. Frye, 566 U.S.

134, 144 (2012) (quoting Robert E. Scott & William J. Stuntz, Plea Bargaining as

Contract, 101 Yale L.J. 1909, 1912 (1992)).

Our criminal justice system has produced in this case, and is likely to

again to produce, a conviction based on incorrect legal advice about eligibility for

parole that caused a defendant to voluntarily relinquish fundamental

constitutional rights. Approval of it, after all that we’ve said about the enduring

requirement of “voluntary and knowing” guilty pleas, makes our lofty

pronouncements sound more than a little insincere. I would vacate the guilty

plea, consummated as it was with gravely inaccurate information. Permitting her

to start over again is the required remedy for this deprivation of her

constitutional rights.

Appel, J., joins this dissent.