from the Iowa District Court for Allamakee County, Linda M.
applicant appeals from the denial of his application for
J. Bishop, Cedar Rapids, for appellant.
J. Miller, Attorney General, and Zachary C. Miller, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
Barr appeals from the denial of his application for
postconviction relief (PCR). Barr makes the same argument
here that he did before the PCR court-that trial counsel
provided ineffective assistance when he misled Barr about the
sentence Barr would receive by focusing on the best-case
scenario and failing to discuss the possibility of civil
commitment for his sex crimes. Barr maintains he would not
have pled guilty if he had been accurately and appropriately
review ineffective-assistance-of-counsel claims de novo.
State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).
"To prove ineffective assistance, the [applicant] must
demonstrate by a preponderance of the evidence that '(1)
his trial counsel failed to perform an essential duty, and
(2) this failure resulted in prejudice.'" State
v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010) (citation
omitted). Barr's claim fails if either element is
lacking. See State v. Straw, 709 N.W.2d 128, 133
(Iowa 2006). While our review is de novo, we give weight to
the trial court's findings on the credibility of
witnesses. Taylor v. State, 352 N.W.2d 683, 687
claim that counsel breached a duty is really two claims-(1)
counsel wrongly informed him he would only serve eighteen
months and (2) counsel failed to inform him he could be
civilly committed for his sex crimes.
up Barr's second claim first. Counsel had no duty to
inform Barr he could be civilly committed for the crimes to
which he was pleading guilty. See State v. Carter, No.
12-1938, 2013 WL 4769414, at *2 (Iowa Ct. App. Sept. 5, 2013)
("The possibility of [the defendant's] civil
commitment as a sexually violent predator at the conclusion
of his . . . sentence is not a definite, immediate, or
automatic result of his conviction. It is merely a potential
collateral consequence; therefore, under the collateral
consequences rule, his trial counsel was not ineffective by
failing to inform him about it."); Blaise v.
State, No. 10-0466, 2011 WL 2078091, at *4 (Iowa Ct.
App. May 25, 2011) (no duty to inform a defendant about the
possibility of civil commitment before he pleaded guilty to
harassment in the first degree). Because counsel had no duty
to inform Barr that he may face civil commitment, this claim
of ineffective assistance fails. See State v.
Schaer, 757 N.W.2d 630, 637 (Iowa 2008) ("Counsel
has no duty to raise an issue that has no merit."
we consider Barr's argument he would not have pled guilty
to the three charges if counsel had not misinformed him that
he would serve only eighteen months. At the PCR hearing,
Barr, Barr's mother, and Barr's sister each testified
they were present with Barr's attorney before the plea
proceedings and they heard the attorney tell Barr that if he
took the plea, he would be out in eighteen months with good
behavior. The attorney then testified on his own behalf,
denying he ever told Barr he would be released in eighteen
months. Rather, counsel testified he remembered telling Barr
that his discharge date on a ten-year sentence, with credit
for good behavior, "amounts to about four years and
maybe four months, something like that." He also
remembered "telling him that life in prison was a long
time, and it means no parole. Your ten-year prison sentences
meant that theoretically that you would get out at some point
in time." The attorney agreed he had encouraged Barr to
take the plea deal, noting that as part of the agreement, the
State was dismissing a first-degree kidnapping charge, which
carried a mandatory life sentence. The attorney advised Barr
to take the deal after doing discovery and independent
investigation that led him to believe Barr was likely to be
convicted of at least one of the charges of sexual abuse in
the third degree, which alone carried a ten-year sentence.
During his testimony, the attorney categorically denied ever
assuring a defendant about when they will be released.
denying Barr's claim for ineffective assistance, the PCR
court "found [the trial attorney] very credible."
Additionally, the court "[did] not find credible that
[the trial attorney] promised Mr. Barr that he would be
released from prison within eighteen months. The court [did]
not find that to be supported by the record in this
case." The court also noted:
During cross-examination, Mr. Barr stated he repeatedly lied
to the court at his plea proceedings because he was only
saying what his attorney wanted him to say. Mr. Barr stated
he was willing to lie to the court. The court is very
troubled by the cavalier way Mr. Barr states his willingness
to lie to the court to get what he wants.
the issue comes down to which witness's version of events
is more credible. In no uncertain terms, the PCR court
repeatedly emphasized that it found the attorney to be
credible and Barr to lack credibility. Nothing in the record