IN THE SUPREME COURT OF IOWA
No. 13–0543
Filed March 13, 2015
ERIC WAYNE DEMPSEY,
Appellant,
vs.
STATE OF IOWA,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Paul L.
Macek, Judge.
Defendant appeals the denial of his petition for postconviction
relief, claiming ineffective assistance of counsel during the plea-
bargaining process under the Sixth Amendment to the United States
Constitution. DECISION OF COURT OF APPEALS VACATED;
DISTRICT COURT JUDGMENT AFFIRMED.
Courtney T. Wilson of Gomez May L.L.P., Davenport, for appellant.
Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant
Attorney General, Michael J. Walton, County Attorney, and Julie A.
Walton, Assistant County Attorney, for appellee.
2
ZAGER, Justice.
Eric Dempsey appeals the denial of his petition for postconviction
relief. He maintains he received ineffective assistance of counsel as a
result of counsel’s failure to accurately inform him of the terms and
potential sentencing outcomes of a first plea offer proposed by the State.
He asserts that because counsel misinformed him of the terms of the
first plea offer, he did not accept it. Thereafter, the State withdrew its
first plea offer and made a second, less favorable plea offer, which
Dempsey accepted. Upon our de novo review, we conclude that while
counsel may have failed to perform an essential duty when he did not
accurately inform Dempsey of the exact terms and sentencing outcomes
of the first plea offer, Dempsey has not established the necessary
prejudice to succeed on his ineffective-assistance-of-counsel claim.
Specifically, he has failed to show he would have accepted the first, more
favorable plea offer had counsel accurately informed him of its exact
terms and potential sentencing outcomes. We vacate the decision of the
court of appeals and affirm the judgment of the district court.
I. Background Facts and Proceedings.
On April 24, 2008, at approximately 4:55 a.m., officers were
dispatched to L.F.’s residence in Davenport, Iowa. This was in response
to a report that Dempsey had broken into L.F.’s residence, assaulted her,
and then exited through the back door. At the same time, several other
officers were dispatched to the home of Dempsey’s mother, where
Dempsey was then residing.
Upon arrival at L.F.’s residence, officers made contact with L.F.,
who was scared and upset. She told officers she had been awakened to
find Dempsey on top of her. L.F. began kicking and screaming in an
effort to get Dempsey off her. Dempsey allegedly covered her mouth with
3
his hand and asked, “Do you want your kids to live?” L.F.’s four-year-old
son was in the bed next to her at the time. L.F. reported Dempsey was
wearing a gray hooded sweatshirt. L.F. also reported she had a scratch
on her right upper thigh, which was not there before she went to bed.
K.R., who had been sleeping on the couch in another room, heard
L.F. scream and ran to her aid. K.R. yelled, “What the f*** are you
doing?” Dempsey responded, “You b****** are crazy,” and ran downstairs
and exited the residence. K.R. told officers she knew it was Dempsey
because he is her son’s uncle. Dempsey did not have permission to enter
the residence. A screwdriver was located in L.F.’s bed.
At the Dempsey residence, officers positioned themselves around
the residence and were about to make contact at the front glass storm
door when Dempsey appeared there. The officers ordered Dempsey out
of the residence, handcuffed him, and took him into custody. Thereafter,
officers made contact with Dempsey’s mother, who consented to a search
of the residence. Officers then searched Dempsey’s bedroom, where they
found a gray hooded sweatshirt.
Based on the above events, law enforcement filed an initial
complaint charging Dempsey with the following offenses: (1) burglary in
the second degree in violation of Iowa Code section 713.5 (2007), a class
“C” felony; (2) assault with intent to commit sexual abuse causing bodily
injury in violation of Iowa Code section 709.11, a class “D” felony; and
(3) possession of burglar’s tools in violation of Iowa Code section 713.7,
an aggravated misdemeanor. Counsel was appointed to represent
Dempsey on the charges. On April 28, Dempsey entered pleas of not
guilty to each of the charges.
Also on April 28, counsel sent Dempsey a detailed letter informing
him of the charges and advising him of the elements the State would
4
need to prove to obtain a conviction. The letter also advised Dempsey of
the potential consequences of each of the charges. As to the charge of
second-degree burglary, the letter explained the offense was a class “C”
felony with a maximum sentence of ten years in prison. The letter
further explained that if Dempsey “intentionally or recklessly inflicted a
bodily injury, however slight, the charge could be upgraded to first-
degree burglary, for which the . . . maximum penalty [was] [twenty-five]
years in state prison.”
As to the charge of assault with intent to commit sexual abuse
causing bodily injury, the letter included a portion of Iowa Code section
709.11, which in relevant part provides:
Any person who commits an assault . . . with the
intent to commit sexual abuse is . . . guilty of a class “D”
felony if the person thereby causes any person a bodily
injury other than a serious injury[,] . . . [and] is guilty of an
aggravated misdemeanor if no injury results.
The letter further explained that the maximum sentence for this offense
was five years in prison.
As to the charge of possession of burglar’s tools, the letter
explained that the offense was an aggravated misdemeanor with a
maximum sentence of two years in prison. Finally, the letter noted that
if Dempsey was convicted on all three charges in the initial complaint,
and if the district court ordered the sentences to run consecutively,
Dempsey would face “maximum sentences totaling [seventeen] years in
prison.” The letter further warned that if the State increased the charge
from second-degree burglary to first-degree burglary, Dempsey would
face maximum sentences totaling thirty-two years in prison.
On May 28, the State filed its trial information. The trial
information charged Dempsey with the following offenses: Count I,
5
burglary in the second degree in violation of Iowa Code section 713.5, a
class “C” felony; Count II, possession of burglar’s tools in violation of
Iowa Code section 713.7, an aggravated misdemeanor; and Count III,
assault with intent to commit sexual abuse not resulting in injury in
violation of Iowa Code section 709.11, an aggravated misdemeanor.
Thus, the State charged Dempsey with the same offenses as in the
complaint, except the count of assault with intent to commit sexual
abuse causing bodily injury, the original class “D” felony, was charged as
assault with intent to commit sexual abuse not resulting in injury, an
aggravated misdemeanor. Also attached to the trial information was a
printout of Dempsey’s criminal history, which showed a 2003 conviction
for sexual abuse in the third degree, a class “C” felony. See Iowa Code
§ 709.4. Dempsey had been sentenced to ten years in prison for that
conviction.
On June 26, counsel sent Dempsey a second letter. A copy of the
trial information was attached to this letter. The letter informed
Dempsey that a pretrial conference had been scheduled for June 27. The
letter further stated, “The State has charged you with the same offenses
as in the complaint.” This was inaccurate. The letter further reiterated
that if Dempsey lost at trial, he could face maximum sentences totaling
seventeen years in prison.
On June 27, the State filed a memorandum of plea agreement, the
first plea offer. Pursuant to the terms of the first plea offer, Dempsey
would plead guilty to Count II, possession of burglar’s tools, an
aggravated misdemeanor, and Count III, assault with intent to commit
sexual abuse not resulting in injury, also an aggravated misdemeanor, as
charged in the trial information. The State would dismiss Count I,
6
second-degree burglary, a class “C” felony. The State would recommend
incarceration.
On June 29, counsel sent Dempsey a third letter informing him of
the first plea offer. A copy of the first plea offer was attached to the
letter. The letter explained the terms of the plea offer and stated that if
Dempsey accepted the plea offer, and if the district court ordered the
sentences to run concurrently, he would face maximum sentences of five
years in prison. The letter further stated, “Although there are no
guarantees, the Court often gives concurrent sentences when people
plead guilty instead of going to trial.” In addition to explaining the terms
of the offer, the letter stated,
Although you have expressed confidence in my ability
to defend you, I must be blunt that you are almost certain to
lose at trial. If [L.F.] and [K.R.] maintain roughly the same
story they told the police, any jury is going to convict you.
The letter reiterated that if Dempsey lost at trial he could face sentences
totaling seventeen years in prison.
The letter also stated, “I don’t think [the State] realizes yet that [it]
could upgrade the burglary charge [to first-degree burglary]. . . . If [the
State] realizes this before trial, you would face sentences totaling [thirty-
two] years in prison.” The letter then warned,
[The State] is not going to make a better offer. In fact, if [it]
starts preparing for trial and realizes [it] could upgrade the
burglary charge, [it] could very well withdraw this offer. If
you decide you want to take the deal, you should let me
know right away.
Finally, the letter noted that because Dempsey would be pleading guilty
to assault with intent to commit sexual abuse, he would “have to register
on the sex offender registry.” However, the letter additionally noted that
7
Dempsey was already required to register due to his prior conviction for
third-degree sexual abuse.
On July 10, counsel conferred with Dempsey at the Scott County
jail to discuss the first plea offer, possible depositions, and the evidence
in the case. When Dempsey did not accept the first plea offer, counsel
filed a motion to authorize depositions, which the district court granted.
Thereafter, counsel scheduled depositions for July 24 and subpoenaed
several witnesses to appear for depositions, including L.F. and K.R. The
record does not indicate any further discussions occurred between
counsel and Dempsey relating to the first plea offer.
On the day of the scheduled depositions, both L.F. and K.R.
appeared for their depositions. Prior to the commencement of the
depositions, the State withdrew the first plea offer and submitted a
second, less favorable plea offer. Pursuant to the terms of the second
plea offer, Dempsey would plead guilty to Count I, second-degree
burglary, a class “C” felony, and Count III, assault with intent to commit
sexual abuse not resulting in injury, an aggravated misdemeanor, as
charged in the trial information. The State agreed to dismiss Count II,
possession of burglar’s tools, also an aggravated misdemeanor. The
second plea offer further noted, “The defendant . . . will be sentenced
pursuant to Iowa Code section [901A.2(1)] as an enhanced sentence of
four years due to [a] prior conviction for a sexually predatory offense.” 1
The State would recommend incarceration and consecutive sentences.
1Iowa Code section 901A.2(1) provides:
A person convicted of a sexually predatory offense which is a serious or
aggravated misdemeanor, who has a prior conviction for a sexually
predatory offense, shall be sentenced to and shall serve twice the
maximum period of incarceration for the offense, . . . prior to being
eligible for parole or work release. However, a person sentenced under
this subsection shall not have the person’s sentence reduced . . . by more
than fifteen percent.
8
When the State made the second plea offer, it informed Dempsey
that if he proceeded with the scheduled depositions, it would amend the
trial information to increase the charge in Count I to burglary in the first
degree in violation of Iowa Code section 713.3, a class “B” felony. If
convicted, Dempsey would face a maximum sentence of twenty-five years
in prison. See id. § 902.9(2). The State also informed Dempsey it would
increase the charge in Count III to assault with intent to commit sexual
abuse causing bodily injury, the class “D” felony. See id. § 709.11. If
convicted, Dempsey would face a maximum sentence of twenty-five years
in prison and a mandatory minimum of eighty-five percent (twenty-one
and one-quarter years), due to his prior conviction for third-degree
sexual abuse. See id. § 901A.2(3); 2 id. § 902.9(5). Additionally, the State
threatened to charge Dempsey with sexual abuse in the second degree in
violation of Iowa Code section 709.3, a class “B” felony. If convicted,
Dempsey would face a maximum sentence of fifty years in prison and a
mandatory minimum of eighty-five percent (forty-two and one-half years),
due to his prior conviction for third-degree sexual abuse. See id.
§ 901A.2(3); id. § 902.9(2). Coupled with the two-year sentence for a
conviction of possession of burglar’s tools, Dempsey would face possible
consecutive sentences totaling seventy-seven years in prison with a
mandatory minimum of forty-two and one-half years. In light of this
potentially harsh result, Dempsey abandoned depositions and accepted
the second plea offer.
2Iowa Code section 901A.2(3) in relevant part provides:
[A] person convicted of a sexually predatory offense which is a felony,
who has a prior conviction for a sexually predatory offense, shall be
sentenced to and shall serve twice the maximum period of incarceration
for the offense, or twenty-five years, whichever is greater . . . . A person
sentenced under this subsection shall not have the person’s sentence
reduced . . . by more than fifteen percent.
9
That same day, counsel sent Dempsey a fourth letter informing
him a plea hearing had been scheduled for July 30, at which time
Dempsey would plead guilty pursuant to the terms of the second plea
offer. The plea hearing was held as scheduled on July 30. At the
hearing, Dempsey entered guilty pleas pursuant to the terms of the
second plea offer. The district court deferred acceptance or rejection of
the pleas until it received a presentence investigation report.
The sentencing hearing was held on September 4. On Count I, the
conviction of second-degree burglary, the district court sentenced
Dempsey to an indeterminate term of imprisonment not to exceed ten
years. On Count III, the conviction of assault with intent to commit
sexual abuse not resulting in injury, the district court sentenced
Dempsey to an indeterminate term of imprisonment not to exceed four
years pursuant to Iowa Code section 901A.2(1). The district court
ordered the terms to run consecutively, ultimately resulting in the
imposition of an indeterminate term of imprisonment not to exceed
fourteen years.
In November 2010, Dempsey filed his petition for postconviction
relief asserting five independent claims of ineffective assistance of
counsel. The petition does not claim counsel was ineffective for failing to
accurately inform him of the exact terms and potential sentencing
outcomes of the first plea offer. After counsel was appointed, an
amended petition was filed in May 2011. The amended petition does not
claim counsel was ineffective for failing to accurately inform him of the
exact terms and potential sentencing outcomes of the first plea offer. In
April 2012, Dempsey’s counsel withdrew from the case, and a second
attorney was appointed to represent Dempsey. The postconviction
hearing was held on December 21, 2012. At the hearing, Dempsey
10
asserted for the first time the additional ground of ineffective assistance
of counsel, namely that counsel failed to accurately inform him of the
exact terms and potential sentencing outcomes of the first plea offer,
causing him to forgo accepting the first plea offer to his detriment. 3
3In his original postconviction relief petition, Dempsey asserted counsel was
ineffective for failing to inform him of the sentencing enhancement applicable due to his
prior conviction for third-degree sexual abuse. Specifically, he claims, “I was never
properly informed of [the] sentencing guidelines for assault w[ith] intent or the
enhanced charge.”
On March 16, 2011, the State filed a motion for summary judgment asserting,
among other things, that this claim was identical to an issue previously addressed by
the court of appeals in 2009. See State v. Dempsey, No. 08–1611, 2009 WL 2170229, at
*1–2 (Iowa Ct. App. July 22, 2009). In that appeal, Dempsey maintained counsel had
been ineffective in failing to object to the district court’s failure to inform him both of
the 901A.2(1) enhancement, and that the enhancement was mandatory in nature
pursuant to section 901A.2(7). Id. The court of appeals rejected Dempsey’s claims. Id.
at *2. It reasoned that counsel had not been ineffective because the district court
informed Dempsey both of the 901A.2(1) enhancement and of its mandatory nature,
and further gave Dempsey the opportunity to consult privately with counsel before
entering the plea after Dempsey indicated he was unaware of these consequences. Id.
Consequently, the State requested that the district court preclude Dempsey from
“relitigating the grounds listed in his application for postconviction relief because they
were raised and finally adjudicated on direct appeal.”
The district court granted the State’s motion for summary judgment on
Dempsey’s claim regarding counsel’s failure to inform him of the 901A.2(1)
enhancement, which barred Dempsey from relitigating that issue. Nevertheless, at the
postconviction hearing Dempsey testified that counsel “never informed [him] . . . [he]
was in danger of having [his] charges enhanced due to [his] prior conviction.” He
further testified that counsel’s failure to inform him “that [his] charges could be
enhanced due to [his] prior conviction, [or] that there was a chance of an [eighty-five]
percent on [his] sentence” affected his decision of whether to accept the first plea offer.
Despite Dempsey’s testimony, the district court did not address this claim in its ruling
on Dempsey’s postconviction relief petition. It only addressed the issue of whether
“counsel had misinformed [Dempsey] in respect to a prior plea agreement.” (Emphasis
added.). Dempsey did not file a motion requesting that the district court address this
issue, as required by our error preservation rules. See Lamasters v. State, 821 N.W.2d
856, 862 (Iowa 2012) (“ ‘When a district court fails to rule on an issue properly raised
by a party, the party who raised the issue must file a motion requesting a ruling in
order to preserve error for appeal.’ ” (quoting Meier v. Senecaut, 641 N.W.2d 532, 537
(Iowa 2002))). Neither has Dempsey appealed the district court’s ruling on the State’s
motion for summary judgment. Further, Dempsey has not raised this issue in his
appellate brief. State v. Ochoa, 792 N.W.2d 260, 292 (Iowa 2010) (“Because the issue
. . . is not raised in its appellate brief and is not inextricably intertwined with any other
issues properly before us, we ordinarily would deem the issue waived.”). Consequently,
this issue is not properly before us and we do not decide it.
11
At the postconviction hearing, Dempsey testified that from the time
of his arraignment to the time he accepted the second plea offer, he had
regular communications with counsel. During this time, Dempsey
estimated counsel sent him ten letters and came to see him three or four
times at the jail. Dempsey testified that during these interactions,
counsel repeatedly told him he was charged with “a felony assault with
intent causing injury, when [he was actually] charged . . . with a
misdemeanor no injury.” Dempsey further testified that he failed to
accept the first plea offer because he “was misled . . . to believe . . . that
the plea agreement was for a felony,” when it was actually for an
aggravated misdemeanor.
On cross-examination, the State asked Dempsey if on the day of
the depositions it had informed him that if he pursued depositions, it
would withdraw the first offer and he would face enhanced charges.
Dempsey confirmed that the State had informed him of this fact. The
State then asked, “[S]o you chose not to take that huge risk . . . and
decided to accept the plea for which you are currently serving your
sentence?” Dempsey responded, “Yes.” When asked if counsel had
informed him a month prior to the deposition date that there was a risk
the State could increase his charges to first-degree burglary, Dempsey
responded, “I do agree with you on that.” When asked if counsel had
urged him to accept the first plea offer based on that risk, Dempsey
responded,
That was [counsel’s] opinion, yes, that it could be upgraded
to First Degree Burglary if [the State] found out about [the
alleged scratch]. But [the State] was already informed of it in
the Trial Information. It clearly says that there was an
alleged scratch.
12
Counsel was unable to testify at the postconviction hearing.
However, his deposition testimony was later added to the record. At his
deposition, counsel testified that “Dempsey indicated at the beginning of
the case that he wanted to take this to trial” because “earl[y] on there
was some question as to whether . . . the witnesses would actually show
up” given that Dempsey, L.F., and K.R. “all knew each other.” Counsel
also testified that, on the day of depositions,
[The State] had a discussion with [him] indicat[ing] . . . the
case [was] more serious than what the first plea offer
contemplated. And, . . . [it] was willing to offer [Dempsey] an
amended plea agreement as long as [he accepted] it right
then. But if [Dempsey] put the victim through the emotional
turmoil of a deposition, [the State] would no longer be
amenable to a plea agreement and [Dempsey] would be going
to tr[ial] facing those [increased] charges.
The district court denied Dempsey’s petition for postconviction
relief on all grounds. As to the first plea offer, the district court
concluded counsel had failed to accurately inform Dempsey of its terms.
However, the district court concluded that even if Dempsey had accepted
the first plea offer, there was not a reasonable probability the plea-taking
court would have accepted the pleas under the terms of the first plea
offer, given the nature of the offenses and Dempsey’s criminal history.
Dempsey appealed, and we transferred the case to the court of appeals.
The court of appeals affirmed the district court’s ruling. Like the district
court, it also reasoned that Dempsey had failed to show the plea-taking
court would have accepted the pleas under the terms of the first plea
offer. Thus, the court of appeals agreed with the district court that
Dempsey had failed to demonstrate the necessary prejudice to establish
ineffective assistance of counsel.
Dempsey applied for further review, which we granted.
13
II. Standard of Review.
We review ineffective-assistance-of-counsel claims de novo. State
v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). This is because such claims
are grounded in the Sixth Amendment to the United States Constitution.
Id.
III. Discussion.
A defendant is entitled to the effective assistance of counsel in the
plea-bargaining process. Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct.
1399, 1407–08, 182 L. Ed. 2d 379, 390 (2012) (“[C]riminal defendants
require effective counsel during plea negotiations.”); Lafler v. Cooper, 566
U.S. ___, ___, 132 S. Ct. 1376, 1384, 182 L. Ed. 2d 398, 406 (2012)
(“Defendants have a Sixth Amendment right to counsel, a right that
extends to the plea-bargaining process.”); see also Padilla v.
Kentucky, 559 U.S. 356, 373, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284,
298 (2010); Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88
L. Ed. 2d 203, 210 (1985). To succeed on a claim of ineffective
assistance of counsel in this context, a claimant must satisfy the familiar
two-pronged standard by establishing by a preponderance of the
evidence: “ ‘(1) his trial counsel failed to perform an essential duty, and
(2) this failure resulted in prejudice.’ ” State v. Adams, 810 N.W.2d 365,
372 (Iowa 2012) (quoting State v. Straw, 709 N.W.2d 128, 133 (Iowa
2006)); accord Lafler, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d
at 406; Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674, 693 (1984). Reversal is warranted only where a
claimant makes a showing of both elements. Simmons v. State Pub.
Defender, 791 N.W.2d 69, 75–76 (Iowa 2010). If we conclude a claimant
has failed to establish either of these elements, we need not address the
remaining element. See Clay, 824 N.W.2d at 501 n.2 (“The court always
14
has the option to decide the claim on the prejudice prong of the
Strickland test, without deciding whether the attorney performed
deficiently.”).
Under the first prong, “ ‘we measure counsel’s performance against
the standard of a reasonably competent practitioner.’ ” Id. at 495
(quoting State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008)). It is
presumed the attorney performed his or her duties competently, and a
claimant must successfully rebut this presumption by establishing by a
preponderance of the evidence counsel failed to perform an essential
duty. Id. We assess counsel’s performance “objectively by determining
whether [it] was reasonable, under prevailing professional norms,
considering all the circumstances.” State v. Lyman, 776 N.W.2d 865,
878 (Iowa 2010).
Under the second prong, a claimant must establish that prejudice
resulted from counsel’s failure to perform an essential duty. Clay, 824
N.W.2d at 496. Prejudice exists where a claimant proves “ ‘a reasonable
probability that, but for the counsel’s unprofessional errors, the result of
the proceeding would have been different.’ ” Bowman v. State, 710
N.W.2d 200, 203 (Iowa 2006) (quoting State v. Hopkins, 576 N.W.2d 374,
378 (Iowa 1998)). A claimant must prove prejudice by a preponderance
of the evidence. Clay, 824 N.W.2d at 496. A claimant need not establish
it is more likely than not that counsel’s deficient conduct altered the
outcome in the case. Id. Instead, a claimant need only show “ ‘that the
probability of a different result is sufficient to undermine confidence in
the outcome.’ ” Id. (quoting Maxwell, 743 N.W.2d at 196). “In
determining whether this standard has been met, we must consider the
totality of the evidence, what factual findings would have been affected
15
by counsel’s errors, and whether the effect was pervasive or isolated and
trivial.” State v. Graves, 668 N.W.2d 860, 882–83 (Iowa 2003).
More specifically, to demonstrate prejudice in the plea-bargaining
process “a [claimant] must show the outcome of the plea process would
have been different with competent advice.” Lafler, 566 U.S. at ___, 132
S. Ct. at 1384, 182 L. Ed. 2d at 407. Here, Dempsey has alleged
prejudice resulting from counsel’s ineffectiveness in accurately advising
him of the exact terms and potential sentencing outcomes of the first
plea offer, such that he rejected the first plea offer to his detriment. To
prove prejudice under these circumstances, Dempsey must demonstrate:
(1) “a reasonable probability [he] would have accepted the earlier plea
offer had [he] been afforded effective assistance of counsel”; (2) “a
reasonable probability the plea would have been entered without the
prosecution canceling it or the trial court refusing to accept it, if they had
the authority to exercise that discretion under state law”; and (3) “a
reasonable probability that the end result of the criminal process would
have been more favorable by reason of a plea to a lesser charge or a
sentence of less prison time.” Frye, 566 U.S. at ___, 132 S. Ct. at 1409,
182 L. Ed. 2d at 392. In establishing a reasonable probability a claimant
would have accepted the earlier plea offer had he or she received effective
assistance of counsel, a claimant must proffer more than his or her own
subjective, self-serving testimony. State v. Tate, 710 N.W.2d 237, 241
(Iowa 2006) (“ ‘[C]onclusory claims of prejudice’ are not sufficient to
satisfy the prejudice element.” (quoting State v. Myers, 653 N.W.2d 574,
579 (Iowa 2002))); see also United States v. Gordon, 156 F.3d 376, 381
(2d Cir. 1998) (requiring “objective evidence” defendant would have
accepted a plea offer); Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir.
1991) (same); Diaz v. United States, 930 F.2d 832, 835 (11th Cir.
16
1991) (same); Turner v. Tennessee, 858 F.2d 1201, 1206 (6th Cir. 1988)
(same), vacated on other grounds, 492 U.S. 902, 109 S. Ct. 3208, 106 L.
Ed. 2d 559 (1989); People v. Hale, 996 N.E.2d 607, 614 (Ill. 2013) (same).
Rather, a claimant must proffer objective, corroborating evidence that his
or her rejection of the plea offer was based on counsel’s unprofessional
errors, as opposed to other considerations. See Tate, 710 N.W.2d at 241;
see also Gordon, 156 F.3d at 381; Fairman, 940 F.2d at 1068; Hale, 996
N.E.2d at 614. For example, the disparity between the sentence a
defendant faced and a significantly shorter sentence in the plea offer can
support a defendant’s claim of prejudice. Hale, 996 N.E.2d at 614 (“The
disparity between the sentence a defendant faced and a significantly
shorter plea offer can be considered supportive of a defendant’s claim of
prejudice.”); see also Gordon, 156 F.3d at 381 (finding great disparity
between actual maximum sentencing exposure and sentencing exposure
represented by defendant’s attorney provided sufficient objective evidence
to support prejudice element).
Dempsey claims counsel’s failure to accurately inform him of the
exact terms and potential sentencing outcomes of the first plea offer fell
below the standard of a reasonably competent practitioner and caused
him to forgo a favorable plea offer to his detriment. Dempsey claims that
had counsel accurately informed him that the first plea offer required
him to plead guilty to only two misdemeanors, as opposed to one
misdemeanor and one felony, and accurately advised him of the potential
sentencing outcomes, he would have accepted the first plea offer. In our
de novo review of the record, and giving appropriate weight to the
presumption that counsel performed his duties competently, it is
unlikely Dempsey has proven counsel’s failures fell below the objective
standard of reasonableness. However, we need not decide that issue
17
here. Rather, we conclude this case can be decided under the prejudice
prong, so we now turn to this analysis.
First, we must decide if Dempsey has offered sufficient objective
evidence that he would have accepted the first plea offer had he received
effective assistance of counsel. Then we must ultimately determine if
there is a reasonable probability Dempsey would have accepted the first
plea offer absent counsel’s deficiencies. We note at the outset that a
defendant’s decision to accept or reject a plea offer can be affected by a
variety of factors. Some of these factors include a full understanding of
the pending charges, a full understanding of the charges contained in a
plea offer, and an understanding of the possible sentencing
consequences associated with accepting a plea offer or proceeding to
trial. Taking these various factors into consideration, we now examine
the record to analyze the prejudice prong of Dempsey’s ineffective-
assistance-of-counsel claim.
We begin by comparing the actual sentencing exposure faced by
Dempsey under the trial information with the sentencing exposure
counsel represented to him. If Dempsey had proceeded to trial and was
convicted of all the charges in the trial information, he faced maximum
total sentences of sixteen years in prison and a mandatory minimum of
three and two-fifths years. 4 However, in the April 28, June 26, and June
4Dempsey faced up to ten years in prison under Count I, see Iowa Code § 713.5
(establishing second-degree burglary as a class “C” felony); id § 902.9(4) (establishing
maximum penalty for class “C” felonies as “no more than ten years”), up to two years in
prison under Count II, see id. § 713.7 (establishing possession of burglar’s tools as an
aggravated misdemeanor); id. § 903.1(2) (establishing maximum penalty for aggravated
misdemeanors as “imprisonment not to exceed two years”), and two years in prison
under Count III, enhanced to a maximum of four years with a mandatory minimum of
three-and-two-fifths years, see id. § 709.11 (establishing assault with intent to commit
sexual abuse not resulting in injury as an aggravated misdemeanor); id. § 901A.2(1)
(establishing enhanced penalty and mandatory minimum for person convicted of
sexually predatory offense when current offense is aggravated misdemeanor and person
has prior conviction for sexually predatory offense); id § 903.1(2) (establishing
18
29 letters counsel sent to Dempsey, counsel mistakenly advised him that
he faced up to seventeen years in prison if convicted of all the charges in
the trial information. This was inaccurate by one year. Under the terms
of the first plea offer, Dempsey faced up to six years in prison with a
mandatory minimum of three and two-fifths years. 5 This is the same
prison term Dempsey faced under the trial information without the felony
charge for second-degree burglary and its attendant ten-year sentence.
However, in the June 29 letter counsel sent to Dempsey, counsel advised
Dempsey that if the district court ordered his sentences to run
concurrently, he could face up to five years in prison for his pleas. This
was also inaccurate by one year, as if the district court ordered his
sentences to run concurrently, he would face up to four years in prison
for his pleas to the two aggravated misdemeanors.
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 Dempsey 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. A significant disparity between the actual sentencing
exposure faced by a defendant and the sentencing exposure counsel
______________________
maximum penalty for aggravated misdemeanors as “imprisonment not to exceed two
years”).
5Pursuant to the terms of the first plea offer, Dempsey faced up to two years in
prison under Count II, see id. § 713.7 (establishing possession of burglar’s tools as an
aggravated misdemeanor); id. § 903.1(2) (establishing maximum penalty for aggravated
misdemeanors as “imprisonment not to exceed two years”), and two years in prison
under Count III, enhanced to a maximum of four years with a mandatory minimum of
three-and-two-fifths years, see id. § 709.11 (establishing assault with intent to commit
sexual abuse not resulting in injury as an aggravated misdemeanor); id. § 901A.2(1)
(establishing enhanced penalty and mandatory minimum for person convicted of
sexually predatory offense when current offense is aggravated misdemeanor and person
has prior conviction for sexually predatory offense); id § 903.1(2) (establishing
maximum penalty for aggravated misdemeanors as “imprisonment not to exceed two
years”).
19
represents to the defendant is a factor we must consider. However, we
cannot conclude counsel’s errors in this respect, standing alone,
objectively demonstrate a reasonable probability Dempsey would have
accepted the first plea offer absent these deficiencies. Moreover, other
than his own subjective, self-serving testimony, there is no other
evidence in the record suggesting counsel’s deficient advice regarding
sentencing consequences influenced Dempsey’s decision to reject the
first plea offer.
Dempsey also claims that had counsel properly advised him that
the first plea offer allowed him to plead guilty to two misdemeanors, as
opposed to one misdemeanor and one felony, he would have accepted it.
However, Dempsey still has offered no objective evidence as to how this
knowledge affected his decision whether to accept or reject the first plea
offer, other than his own subjective, self-serving testimony that it
somehow did.
More significantly, the record established Dempsey’s decision to
reject the first plea offer was not the result of counsel’s errors but rather
the result of Dempsey’s belief that he could win at trial. With respect to
the first plea offer, counsel’s June 29 letter to Dempsey clearly advised
him that he would not receive a better offer. Counsel also warned
Dempsey that if he rejected the offer, the State could increase the
charges leading to even harsher potential sentences. Specifically,
counsel advised Dempsey that the State “could upgrade the burglary
charge [to first-degree burglary]” such that Dempsey “would face
sentences totaling [thirty-two] years in prison.” The letter advised
Dempsey that if he elected to proceed to trial, he would lose. The letter
repeated that if he lost at trial on the current charges, he could face
sentences totaling seventeen years in prison. Finally, the letter stated, “If
20
you decide you want to take the deal, you should let me know right
away.” Thus, the letter clearly communicated to Dempsey he would not
win at trial; he would not get a better offer; if he chose to go to trial, the
consequences would be severe; and time was of the essence. This
undercuts Dempsey’s claim that counsel’s errors caused him to reject the
first plea offer. Rather, although counsel had repeatedly advised
Dempsey that he faced a likely unfavorable outcome and likely harsh
sentences, he elected to reject the first plea offer, proceed with his
request for depositions, and wait and see if the critical witnesses
appeared for their depositions.
Further, Dempsey’s own testimony at the postconviction hearing
undermines his credibility with respect to his claim that he rejected the
first plea offer because counsel inaccurately informed of its exact terms
and potential sentencing outcomes. On cross-examination, when the
State asked Dempsey if his counsel had urged him to accept the first
plea offer due to the risk the State would increase the burglary charge,
Dempsey responded,
That was [counsel’s] opinion, yes, that it could be upgraded
to First Degree Burglary if [the State] found out about [the
alleged scratch]. But [the State] was already informed of it in
the Trial Information. It clearly says that there was an
alleged scratch.
Here, Dempsey’s own testimony suggests that at the time of the first plea
offer, he was not willing to accept any plea offer. His reasons were
clearly unrelated to potential sentencing risks or whether the State had
charged him with a felony. Counsel clearly advised him that the burglary
charge, already a felony, could be increased with a substantial increase
in his sentence. Nothing in this record supports the claim that Dempsey
was concerned about either a felony conviction or an increase in his
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sentence. What the record does disclose is that Dempsey repeatedly
refused to follow the advice and recommendations of counsel as to the
first plea offer and instead decided to take his chances down the road.
Additionally, the deposition testimony of Dempsey’s former counsel
provides an explanation as to why Dempsey rejected the first plea offer.
Counsel testified that Dempsey indicated early on he wanted to proceed
to trial because there was some doubt as to whether L.F. and K.R. would
testify against him, given that Dempsey, L.F., and K.R. all knew each
other. The June 29 letter further buttresses counsel’s testimony that
Dempsey was adamant about proceeding to trial. Counsel writes:
“Although you have expressed confidence in my ability to defend you, I
must be blunt that you are almost certain to lose at trial.” (Emphasis
added.). On July 10, while the first plea offer was still pending, counsel
met with Dempsey at the jail to discuss the first plea offer and whether
further discovery would be necessary. Dempsey did not accept the first
plea offer, and counsel subsequently applied for and received permission
to take the depositions of L.F. and K.R. These depositions were
scheduled for July 24.
Prior to the scheduled depositions, Dempsey made no additional
effort to discuss the first plea offer with counsel, nor would he accept the
first plea offer. Prior to the scheduled depositions, there was still the
possibility that L.F. and K.R. would not appear for their depositions.
However, on July 24, both L.F. and K.R. appeared as scheduled. Once
these witnesses appeared for depositions, the State withdrew the first
plea offer, and any doubts that Dempsey may have had about their
willingness to testify against him evaporated. Not surprisingly, when
Dempsey realized that the critical witnesses against him were present
22
and willing to testify, he promptly accepted the second, less favorable
plea offer.
In some cases the mere fact that a defendant later accepts a less
favorable plea offer, as opposed to an earlier more favorable one, could
demonstrate a reasonable probability a defendant would have accepted
the earlier offer but for counsel’s unprofessional errors. Here, however,
the record does not support that conclusion. See Frye, 566 U.S. at ___,
132 S. Ct. at 1411, 182 L. Ed. 2d at 393 (“It may be that in some cases
defendants must show more than just a guilty plea to a charge or
sentence harsher than the original offer. For example, revelations
between plea offers about the strength of the prosecution’s case may
make a late decision to plead guilty insufficient to demonstrate, without
further evidence, that the defendant would have pleaded guilty to an
earlier, more generous plea offer if his counsel had reported it to him.”).
This is not a case a case in which counsel altogether failed to provide a
defendant with an earlier, more favorable plea offer. Here, counsel gave
Dempsey the State’s plea offer. Counsel explained to Dempsey that he
faced a likely unfavorable outcome and likely harsh sentences. Dempsey
had numerous opportunities to discuss the plea offer with counsel and
decided to reject it. The record shows that Dempsey’s decision to reject
the first plea offer was motivated by his belief that L.F. and K.R. would
not testify and that he could win at trial as a result. It was not the result
of any deficiencies of counsel.
Finally, the timing of Dempsey’s ineffective-assistance-of-counsel
claim involving the first plea offer belies his claim of prejudice. As noted
earlier, in 2009 Dempsey claimed counsel had been ineffective in failing
to object to the district court’s failure to inform him of the 901A.2(1)
sentencing enhancement applicable due to his prior conviction for third-
23
degree sexual abuse. This claim was denied on direct appeal by the
court of appeals. Then in 2010, Dempsey filed the present
postconviction relief petition. The petition makes no claim that counsel
was ineffective in the area of plea bargaining. The district court
appointed counsel to represent Dempsey in the present action, and an
amended petition was filed in May 2011. The amended petition also
makes no claim that counsel was ineffective in the area of plea
bargaining. In April 2012, Dempsey’s counsel withdrew from the case,
and a second attorney was appointed to represent Dempsey. No
amendment claiming any deficiencies by counsel in the area of plea
bargaining was made. Finally, at the postconviction trial in December
2012, four years after his pleas and sentences, and three years after the
court of appeals denied his initial ineffective-assistance-of-counsel
claims, Dempsey claimed for the first time that counsel was ineffective
for failing to accurately inform him of the exact terms and potential
sentencing outcomes of the first plea offer. The timing of this claim does
not support a conclusion of prejudice.
Based on our de novo review of the record, Dempsey has not
shown a reasonable probability he would have accepted the first plea
offer had he been afforded effective assistance of counsel, or that the
outcome of the plea process would have been different had counsel
accurately informed him of the exact terms and sentencing outcomes of
the first plea offer. Rather, Dempsey has presented little more than his
own subjective, self-serving testimony in support of his claim that
counsel’s deficiencies affected his decision to reject the first plea offer.
Moreover, the record established that Dempsey rejected the first plea
offer for reasons unrelated to any deficiencies of counsel. Dempsey has
failed to demonstrate the necessary prejudice to succeed on his
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ineffective-assistance-of-counsel claim. The district court properly
denied Dempsey’s ineffective-assistance-of-counsel claims.
IV. Conclusion.
Dempsey has failed to establish the necessary prejudice to succeed
on his ineffective-assistance-of-counsel claim. Counsel may have been
ineffective for failing to accurately inform Dempsey of the exact terms
and sentencing outcomes of the first plea offer. However, Dempsey failed
to establish a reasonable probability he would have accepted the first
plea offer had counsel accurately informed him of its exact terms and
potential sentencing outcomes. Dempsey also failed to show the
outcome of the plea process would have been somehow different with
competent counsel. We vacate the decision of the court of appeals and
affirm the judgment of the district court.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.