Appeal from the Iowa District Court for Clinton County, David H. Sivright Jr., Judge.
The opinion of the court was delivered by: Bower, J.
David Milton appeals from the district court's denial of his application for post-conviction relief. AFFIRMED.
Heard by Vaitheswaran, P.J., Bower, J., and Huitink, S.J.*fn1 Tabor, J., takes no part.
David Milton appeals from the district court's denial of his application for post-conviction relief. He contends his conviction for sexual abuse in the third degree should be reversed because his trial counsel was ineffective in two ways:
(1) in failing to inform him of a plea offer by the State and (2) in failing to withdraw from representation based on an undisclosed conflict of interest. He seeks a remand to allow him to enter a guilty plea in accordance with the proffered plea agreement. In the alternative, he asks for a new trial.
Because we find Milton has failed to prove counsel breached an essential duty, we affirm the district court order denying his application for post-conviction relief.
I. Background Facts and Proceedings.
On November 7, 2003, the State charged Milton with third-degree sexual abuse, in violation of either Iowa Code section 709.4(1) (2003) (by force or against the will of the other participant) or section 709.4(2)(c)(4) (performing a sex act on a person who is age fourteen or fifteen years and the perpetrator is more than four years older than the alleged victim). The first alternative is a forcible felony, while the second is not. See Iowa Code § 702.11(2)(c). Attorney Neill Kroeger was appointed to represent Milton.
On January 27, 2004, the prosecutor sent a letter to Kroeger, offering a plea agreement. The plea agreement would allow Milton to plead guilty to the second alternative: "This alternative would allow you the possibility of seeking probation for Mr. Milton. I am not indicating that the State will join in this request." The letter also states, "The State would require an open plea."
On the Friday before trial, Milton threatened physical violence against Kroeger after learning Kroeger had not investigated an allegation of sexual abuse the alleged victim had made before. Milton made a number of ethics complaints against Kroeger over the weekend. On the morning of trial, Milton attempted to have Kroeger removed as counsel based on the reasons set forth in the ethics complaints. Following an in-court colloquy, the trial court denied the request.
On the second day of trial, Milton again requested his counsel be removed. The court allowed him to waive his right to counsel and proceed with Kroeger as standby counsel.
The jury convicted Milton of third-degree sexual abuse under both alternatives, and Milton was sentenced to a prison term not to exceed ten years and was ordered to register as a sex offender. Milton's conviction and sentence was affirmed by this court. State v. Milton, No. 04-0753, 2005 WL 1630040, at *1 (Iowa Ct. App. July 13, 2005).
On February 20, 2006, Milton filed a pro se application for post-conviction relief (PCR). Counsel was appointed to represent Milton in the PCR proceedings. On December 1, 2009, Milton filed a "Supplement to Application For Post-conviction Relief Pursuant to Iowa Code Chapter 822." Following a hearing, the district court denied the PCR application in its entirety.
Milton filed a timely notice of appeal. On November 15, 2011, the Iowa Supreme Court denied a motion to withdraw from the appeal, which asserted the appeal was frivolous. The case was then transferred to this court and submitted for oral argument.
II. Scope and Standard of Review.
Generally, we review the denial of a PCR application for correction of errors at law. Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012). However, where an applicant alleges constitutional error, our review is de novo "in light of the totality of the circumstances and the record upon which the post-conviction court's rulings were made." Id. In those cases in which a PCR applicant alleges the denial of effective assistance of counsel, we employ a de novo review. Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011).
III. Ineffective Assistance of Counsel.
In order to establish an ineffective-assistance-of-counsel claim, Milton must demonstrate: "(1) his trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice." See id. at 251. He must prove both elements by a preponderance of the evidence. See id.
"An attorney breaches an essential duty when 'counsel's representation falls below an objective standard of reasonableness.'" Id. (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). We measure counsel's performance against the standard of a reasonably competent practitioner. Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). We presume counsel performed competently. Milliam v. State, 745 N.W.2d 719, 721 (Iowa 2008). Miscalculated trial strategies and mistakes in judgment do not normally rise to the level of ineffective assistance of counsel. Lado, 804 N.W.2d at 251.
In order to prove the prejudice prong of the ineffective-assistance-of-counsel test, a claimant must prove "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 251 (quoting Strickland, 466 U.S. at 694). "A reasonable probability is one that is sufficient to ...