from the Iowa District Court for Delaware County, Thomas A.
appeals from the district court's denial of his
application for postconviction relief. AFFIRMED.
C. Abbott of Abbott Law Office, P.C., Waterloo, for
J. Miller, Attorney General, and Kristin A. Guddall,
Assistant Attorney General, for appellee State.
by Danilson, C.J., and Doyle and McDonald, JJ.
Lee Cole appeals the denial of his application for
postconviction relief. In his application, Cole raised two
separate claims of ineffective assistance of counsel: the
first related to his guilty plea to assault with intent to
commit sexual abuse in 2004 (FECR 0055913); and the second
related to his guilty plea to domestic abuse assault with
injury in 2012 (SRCR 008538). On appeal, Cole raises a third
claim: his postconviction counsel was ineffective in failing
to present certain evidence in support of his claims.
general rule, we review the district court's
postconviction ruling for the correction of legal error.
See Houston v. State, No. 14-0631, 2015 WL 2394090,
at *1 (Iowa Ct. App. May 20, 2015). We are bound by the
district court's findings if they are supported by
substantial evidence. See Perez v. State, 816 N.W.2d
354, 356 (Iowa 2012). We review the district court's
legal conclusions and application of the law for legal error.
See Claybon v. State, No. 12-1396, 2014 WL 1999057,
at *1 (Iowa Ct. App. May 14, 2014). We review de novo claims
of ineffective assistance of counsel, including claims of
ineffective assistance of postconviction counsel. See
Zaabel v. State, No. 15-0220, 2016 WL 4035236, at *2
(Iowa Ct. App. July 27, 2016).
succeed on a claim of ineffective assistance of counsel, Cole
must prove "(1) his trial counsel failed to perform an
essential duty, and (2) this failure resulted in
prejudice." State v. Straw, 709 N.W.2d 128, 133
(Iowa 2006) (citing Strickland v. Washington, 466
U.S. 668, 687-88 (1984)). "Failure to prove either
element is fatal to the claim." Zaabel, 2016 WL
4035236, at *2. To prove the prejudice element, Cole must
show "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different."
Strickland, 466 U.S. at 694. In the context of a
guilty plea, "the defendant must show that there is a
reasonable probability that, but for counsel's errors, he
or she would not have pleaded guilty and would have insisted
on going to trial." Straw, 709 N.W.2d at 138.
The same elements apply to Cole's claim of ineffective
assistance of postconviction counsel. See Schertz v.
State, 380 N.W.2d 404, 412 (Iowa 1985) ("The same
standards that we apply to trial counsel competency also
apply to subsequent counsel, and the client bears the same
burden of proof to establish the ineffectiveness of
counsel."); Sinclair v. State, No. 04-1013,
2005 WL 1224762, at *3 (Iowa Ct. App. May 25, 2005) ("To
establish the ineffective assistance of his trial, appellate,
or postconviction counsel, [the applicant] must prove"
the Strickland elements).
address Cole's first claim. Cole contends his 2004 guilty
plea to assault with intent to commit sexual abuse was not
knowingly made because his counsel misadvised Cole that he
would not have to register as a sex offender. Cole directly
appealed his conviction and sentence. See State v.
Cole, No. 06-0579, 2007 WL 257856, at *1-2 (Iowa Ct.
App. Jan. 31, 2007). The opinion notes Cole asserted his
counsel had misinformed him about the sex offender registry
requirement. See id. This court rejected Cole's
argument and affirmed his conviction and sentence. See
id. at *2-3. Procedendo issued in 2007. Cole filed the
instant application for postconviction relief in 2012. The
district court dismissed Cole's challenge to his 2004
guilty plea as time-barred. See Iowa Code §
822.3 (2015) (providing for a three-year statute of
limitations); Everett v. State, No. 12-1032, 2014 WL
3749338, at *1 (Iowa Ct. App. July 30, 2014).
contends the district court erred in dismissing his claim
because the statute of limitations "does not apply to a
ground of fact or law that could not have been raised within
the applicable time period." Iowa Code § 822.3. To
meet the test for this exception, the asserted ground of fact
must be one that could not have been presented during the
applicable time period and that is relevant to the challenged
conviction. See Zaabel, 2016 WL 4035236, at *3
(citing Harrington v. State, 659 N.W.2d 509, 521
(Iowa 2003)). Cole alleges his plea counsel admitted in a
hearing in another matter held in 2012 that plea counsel
misadvised Cole regarding the sex offender registry
requirement with respect to the 2004 conviction. Cole
contends this is a "ground of fact" within the
meaning of under section 822.3.
conclude the district court did not err in denying Cole's
claim as time-barred. First, Cole misapprehends the
"ground of fact" exception. Here, the "ground
of fact" purportedly entitling Cole to relief is the
fact his plea counsel misadvised him of the requirement Cole
would have to register as a sex offender. Cole confuses the
distinction between the ground-of-fact exception to the
statute of limitations and a claim of "newly discovered
evidence" as a ground for substantive relief. See
Zaabel, 2016 WL 4035236, at *5 ("Even a claim of
newly discovered evidence within the meaning of section
822.2(1)(d) must be presented within the three-year
limitations period set forth in section 822.3. If the claim
is presented outside the limitations period, as a threshold
to consideration on the merits, the applicant must establish
the claim relies on a ground of fact that could not have been
raised within the limitations period within the meaning of
section 822.3 as interpreted in Harrington.").
When properly understood, even assuming Cole's plea
counsel admitted in 2012 to misadvising Cole, plea
counsel's admission is merely additional evidence of the
same underlying "ground of fact." Second, a
"ground of fact" does not meet the exception if the
applicant knew of the fact prior to the expiration of the
statute of limitations. See id. Here, Cole knew his
counsel allegedly misadvised him at the time sentence was
imposed and Cole learned he would have to register as a sex
offender. He even raised the issue in his direct appeal.
Cole's trial counsel's alleged admission in 2012 to
misadvising Cole does not change the fact that Cole could
have raised this claim within the limitations period and
deposed his former counsel to obtain the same information.
to this first claim, Cole contends his postconviction-relief
counsel was ineffective in failing to procure and introduce
into evidence a transcript of the hearing in which Cole's
2004 plea counsel allegedly admitted to misadvising Cole or
in failing to have Cole's 2004 plea counsel testify
during the postconviction-relief hearing. Cole contends the
record is inadequate to resolve this claim, and he requests
we preserve the claim for further postconviction-relief
proceedings. We decline to do so. First, there is no
statutory authority to preserve a claim of ineffective
assistance of postconviction counsel. See Yocum v.
State, No. 15-0545, 2016 WL 6652322, at *2 n.1 (Iowa Ct.
App. Nov. 9, 2016). Iowa Code section 814.7(3) authorizes the
preservation of ineffective-assistance-of-counsel claims on
direct appeal from a "criminal proceeding." Iowa
Code § 814.7(3) ("If an ineffective assistance of
counsel claim is raised on direct appeal from the criminal
proceedings, the court may decide the record is adequate to
decide the claim or may choose to preserve the claim for
determination under chapter` 822.").
"[P]ostconviction relief proceedings are not criminal
proceedings, but rather are civil in nature and are triable
at law to the court." Jones v. State, 479
N.W.2d 265, 269 (Iowa 1991). Because a postconviction-relief
proceeding is a civil proceeding rather than a "criminal
proceeding, " section 814.7(3) is inapplicable here.
Second, the record is adequate to resolve the claim. Cole
cannot establish prejudice because, even assuming
postconviction counsel procured the witness or the transcript
and proved the alleged admission, the claim would remain
time-barred for the above-stated reasons.
address Cole's second claim of ineffective assistance of
counsel. By way of background, in 2010 Cole pleaded guilty to
several offenses and was sentenced to two indeterminate terms
of incarceration not to exceed two years with each of those
sentences to run consecutive to each other and consecutive to
a third sentence of incarceration of one year, for a total of
five years' incarceration. The sentencing court suspended
the sentences and placed Cole on probation. In 2012, Cole
pleaded guilty to domestic abuse assault and stipulated to
violating the terms of his probation. The district court
revoked Cole's probation and imposed the original
sentences to be served concurrent to Cole's sentence for
domestic abuse assault. In his application for postconviction
relief, Cole contends his counsel misadvised him regarding
the revocation of his probation. Specifically, he contends
his counsel advised him that the district court would revoke
probation with respect to two of the three sentences and Cole
would be incarcerated for only three ...