IN THE COURT OF APPEALS OF IOWA
No. 20-1698
Filed March 2, 2022
ZACHARY SZUMINSKI,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.
The applicant appeals the denial of his postconviction-relief application.
AFFIRMED.
Peter Ickes of Stowers & Sarcone PLC, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee State.
Considered by May, P.J., Ahlers, J., and Mullins, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
2
AHLERS, Judge.
Zach Szuminski was charged with sexual abuse in the third degree by force
or against the will of the other person. See Iowa Code § 709.4(1)(a) (2015). This
offense is a class “C” felony punishable by up to ten years in prison. See Iowa
Code §§ 709.4(2), 902.9(1)(d). Because it is a forcible felony, see Iowa Code
§ 702.11(1), if Szuminski was convicted of the offense, he would not be eligible for
a deferred judgment, deferred sentence, or suspended sentence, meaning he
would be required to be sent to prison on a ten-year sentence. See id. § 907.3.
He would also have faced lifetime sex-offender-registration requirements. See id.
§§ 692A.101(1)(a)(3) (defining sexual abuse in the third degree in violation of
section 709.4(1)(a) as an “aggravated offense”), .106(5) (requiring lifetime sex
offender registration for a person convicted of an “aggravated offense”).
Szuminski initially pleaded not guilty. On the Friday of the week before his
jury trial was scheduled to begin, he accepted a plea deal. The plea agreement,
which was put in writing, called for Szuminski to plead guilty to an added charge
of assault with intent to commit sexual abuse resulting in no injury, an aggravated
misdemeanor in violation of Iowa Code section 709.11(3). In return, the State
agreed to dismiss the sexual-abuse-in-the-third-degree charge.1 The written plea
agreement included a provision detailing the necessity that Szuminski register as
a sex offender, but it was silent as to the duration of the registration requirement.
1The plea deal also included Szuminski pleading guilty to a pending operating
while intoxicated charge against Szuminski in an unrelated case. This appeal does
not concern that case.
3
Consistent with the terms of the plea agreement, Szuminski pleaded guilty
to assault with intent to commit sexual abuse resulting in no injury, and the sexual-
abuse-in-the-third-degree charge was dismissed. Szuminski received the agreed-
upon sentence, which included an indeterminate term of incarceration not to
exceed two years, with the sentence suspended. He was also ordered to comply
with sex-offender-registration requirements.
A few months after he was sentenced, Szuminski received notice that he
was required to register as a sex offender for life. Szuminski filed an application
for postconviction relief (PCR). He asserted that he received ineffective assistance
from his trial counsel. He claims his trial counsel misinformed him that he would
be required to register as a sex offender for ten years and, had he known he was
facing a lifetime registration requirement,2 he would not have pleaded guilty and
would have taken the case to trial on the original charge. He requests that his
guilty plea and conviction be set aside and he be permitted to proceed with a jury
trial on the original charge. The district court denied his application, and he
appeals.
I. Standard of Review
Denial of a PCR application is generally reviewed for errors at law.
Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021). “However, a PCR
application alleging ineffective assistance of counsel raises a constitutional claim,
2 Like the original sexual-abuse-in-the-third-degree charge, the assault-with-intent-
to-commit-sexual-abuse charge to which Szuminski pleaded guilty is defined as
an “aggravated offense,” which carries a lifetime registration requirement. See
Iowa Code §§ 692A.101(1)(a)(5) (defining the offense as an “aggravated offense”),
.106(5) (setting a lifetime registration requirement for convictions for an
“aggravated offense”).
4
and ‘[w]e review postconviction proceedings that raise constitutional infirmities de
novo.’” Id. (alteration in original) (quoting Krogmann v. State, 914 N.W.2d 293,
306 (Iowa 2018)). With de novo review, we are not bound by the district court’s
findings, but we give them weight concerning witness credibility. Id.
II. Statement of the Issues and Applicable Legal Standards
Szuminski claims he was prejudiced by his attorney misinforming him as to
the duration of his sex-offender-registration requirements because he would have
insisted on going to a jury trial if he had known his plea deal came with a lifetime-
sex-offender-registration requirement. The State insists that, in light of the charge
he was facing, he cannot satisfactorily prove prejudice.
To establish his claim of ineffective assistance of counsel, Szuminski is
required to prove (1) his plea counsel breached an essential duty and (2) he was
prejudiced as a result. See id. As to the first prong, we presume counsel
performed competently, and we measure performance against that of a reasonably
competent attorney. State v. Warren, 955 N.W.2d 848, 858 (Iowa 2021). The
second prong requires proof of a reasonable probability that, but for counsel’s
unacceptably poor performance, the result of the proceeding would have been
different. Id. at 859. In the context of a guilty plea, proving prejudice requires the
applicant to show that, but for counsel’s errors, the applicant “would not have
pleaded guilty and would have insisted on going to trial.” Sothman, 967 N.W.2d at
523 (quoting Doss v. State, 961 N.W.2d 701, 709 (Iowa 2021)). Proof of both
prongs is required for a successful ineffective-assistance-of-counsel claim, and
failure to prove either prong is fatal to the claim. State v. Lorenzo Baltazar, 935
N.W.2d 862, 868 (Iowa 2019).
5
III. Analysis
As to the first prong, the State concedes that counsel fell below the
professional standard by providing incorrect legal advice to Szuminski. It is
undisputed that plea counsel informed Szuminski that he would be required to
register for ten years when, in fact, the lesser charge to which Szuminski pleaded
guilty carried a lifetime registration requirement. The district court correctly
determined that Szuminski satisfied the first prong.
In support of his effort to prove the second prong, Szuminski testified that
he would not have accepted the plea deal if he had known it came with a lifetime
registration requirement. He insisted that avoiding a lifetime registration
requirement was his primary consideration in the plea negotiations. The district
court did not believe Szuminski’s testimony. We give this credibility determination
considerable weight, even on our de novo review. See Sothman, 967 N.W.2d at
522.
Following our de novo review, we also find Szuminski’s claim lacking in
credibility. He was facing a felony charge that carried a mandatory ten-year prison
sentence and lifetime registration requirements. The plea deal got him down to a
misdemeanor offense with a guarantee that he would not be incarcerated at the
time of sentencing.3 We find it unlikely that, in light of the relief from the risk of a
3 Szuminski’s guilty plea included a joint recommendation for an indeterminate
term of incarceration not to exceed two years that was to be suspended. The plea
was conditioned on the district court’s agreement to impose the agreed-upon
sentence pursuant to Iowa Rule of Criminal Procedure 2.10(2). If the court
accepted the plea with that condition, the court was obligated to impose the
agreed-upon sentence or Szuminski would have been permitted to withdraw his
guilty plea. See Iowa R. Crim. P. 2.10(2)–(4). As a result, Szuminski was
6
felony conviction and a guaranteed ten-year prison sentence, the registration
requirements were Szuminski’s primary motivating factor as he now claims. His
claim is supported only by his self-serving testimony. His trial counsel, who was
remarkably candid about his mistake in misadvising Szuminski about the duration
of the registration requirement on the lesser charge, did not back up Szuminski’s
claim that avoiding lifetime registration requirements was Szuminski’s primary
concern. Based on our review, we agree with the district court that Szuminski did
not meet his burden of showing a reasonable probability that but for counsel’s error
he would have rejected the plea offer and proceeded to trial.
Although the fact-intensive nature of these types of cases makes precedent
of limited value, we find it worth noting that the facts here are strikingly similar to
those in Buckley v. State, No. 18-0278, 2018 WL 5839882 (Iowa Ct. App. Nov. 7,
2018). Just like Szuminski, Buckley was facing a class “C” felony charge of sexual
abuse in the third degree. See Buckley, 2018 WL 5839882, at *1. Also like
Szuminski, Buckley accepted a plea deal and pleaded guilty to assault with intent
to commit sexual abuse as an aggravated misdemeanor. See id. Buckley later
sought PCR, claiming he received ineffective assistance of counsel because he
had been misinformed about the duration of his sex-offender-registration
requirement. Id. Our court found that Buckley was misinformed about the duration
of the registration requirements and that his attorney breached an essential duty
as a result. Id. at *3. However, our court also affirmed the district court’s
determination that Buckley’s claim he would have insisted on going to trial had he
guaranteed not to be sent to prison at the time of sentencing or to be able to
withdraw his guilty plea and proceed to trial.
7
been correctly informed of the duration of the registration requirement was
“disingenuous at best” and that Buckley failed to establish prejudice. Id. Like our
court in Buckley, we affirm the district court’s determination that Szuminski’s claim
he would have gone to trial instead of pleading guilty to a lesser charge if he had
been correctly informed of the duration of the registration requirements lacked
credibility, and he failed to establish the prejudice prong of his ineffective-
assistance-of-counsel claim. Accordingly, we affirm the denial of Szuminski’s
application for PCR.
AFFIRMED.