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Boschert v. State

Court of Appeals of Iowa

December 5, 2013

ROBERT BOSCHERT, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

Appeal from the Iowa District Court for Pottawattamie County, Timothy O'Grady, Judge.

Robert Boschert appeals the district court's denial of postconviction relief from convictions after his guilty pleas to third-degree sexual abuse and lascivious acts with a child.

Mark C. Smith, Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Margaret Popp Reyes, Assistant County Attorney, for appellee State.

Heard by Vogel, P.J., and Potterfield and McDonald, JJ.

POTTERFIELD, J.

Robert Boschert pled guilty to third-degree sexual abuse and lascivious acts with a child. He now appeals the denial of his application for postconviction relief, contending his plea counsel and the plea court's failure to inform him he would face Iowa Code section 903B.1 (2007) lifetime parole rendered his guilty pleas unknowing and involuntary. Though not raised in the postconviction court, Boschert asks that we rule he need not prove prejudice to establish his plea counsel was ineffective. In the alternative, Boschert argues the postconviction court erred in concluding he failed to establish prejudice as a result of plea counsel's deficient performance.

We decline the invitation to amend the standard applied to a claim of ineffective assistance of guilty plea counsel, an issue not raised in the postconviction court. We find no reason to interfere with the district court's finding that Boschert failed to establish a reasonable probability he would have insisted on going to trial had counsel informed him of the lifetime parole. We therefore affirm.

I. Factual Background and Proceedings.

In December 2007, the State charged Boschert with six counts of sexual abuse in the third degree, in violation of Iowa Code section 709.4.

The parties eventually reached a plea agreement pursuant to which Boschert would plead guilty to the Count I charge of third-degree sexual abuse, in violation of Iowa Code sections 709.1(3) and 709.4(2)(b), a class 'C felony, as well as an amended Count II charge of lascivious acts with a child, in violation of section 709.8(3). The plea agreement provided for an open sentence, leaving the parties free to argue for concurrent or consecutive sentencing. At the plea hearing, March 17, 2008, the district court did not advise Boschert of the special sentencing provisions of Iowa Code sections 903B.1 and 903B.2.[1]

On April 28, 2008, the court sentenced Boschert to indeterminate terms of imprisonment not to exceed ten years on Count I and five years on Count II, with the sentences to be served consecutively. During the sentencing proceeding, the court stated:

With respect to the Lascivious Acts With a Child, the five-year sentence, the Court is required, pursuant to code section 903B.2 to impose a special sentence which will take effect upon the completion of the underlying sentence, and that is a ten-year special sentence under that particular Code section.
Likewise, with respect to the Sexual Abuse Third sentence, the Court is required by virtue of code section 903B.1 to add a second sentence, a special sentence, which is a sentence of life, which is imposed, again, ...

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