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Giambo v. State

Court of Appeals of Iowa

December 20, 2017

ANTONIO MONTE GIAMBO II, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Pottawattamie County, James S. Heckerman, Judge.

         An applicant appeals the denial of postconviction relief.

          Krisanne C. Weimer of Weimer Law, P.C., Council Bluffs, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee State.

          Considered by Danilson, C.J., and Tabor and McDonald, JJ.

          TABOR, JUDGE.

         With the jury waiting, Antonio Giambo II entered a plea agreement with the State that reduced his charge from third-degree sexual abuse, a class "D" felony, to assault with intent to commit sexual abuse, an aggravated misdemeanor. Following his guilty plea and sentencing, he unsuccessfully applied for postconviction relief (PCR) as a self-represented litigant.

         Giambo now appeals the PCR court's denial of relief, claiming trial counsel had a conflict of interest and used threats to coerce his plea. Giambo additionally alleges his plea was coerced based on "a conflict of interest with anyone from the State Public Defender's office representing him at his January 2014 [criminal] trial because they were concurrently representing the alleged victim in other, unrelated cases." After reviewing the record, we affirm the PCR court's thorough and well-reasoned decision rejecting these claims. See Iowa Ct. R. 21.26(1)(a), (d), (e).

         In a second issue, Giambo asserts his PCR counsel rendered ineffective assistance in multiple ways. Such claims are an exception to the rules of error preservation. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). Our review is de novo. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). "We must now decide whether these claims present grounds which may be addressed in this appeal or preserved for further postconviction proceedings." Dunbar, 515 N.W.2d at 15. Ordinarily, we preserve such claims to allow development of the facts surrounding counsel's conduct. See State v. Rawlings, 402 N.W.2d 406, 408 (Iowa 1987). But we may address claims where the record is sufficiently developed to resolve them. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). Here, the record is adequate to resolve all but one of these claims.

         To succeed, Giambo must establish (1) his PCR counsel failed to perform an essential duty and (2) that failure resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). "Reversal is warranted only where a claimant makes a showing of both elements." Dempsey, 860 N.W.2d at 868. If a claimant fails to establish one element, we need not address the other. Id.

         Giambo first faults PCR counsel for not amending the self-represented application that failed to include a prayer for relief. We conclude Giambo was not prejudiced by counsel's omission because, after his PCR counsel filed a brief addressing Giambo's claims with a specific prayer for relief, the court considered and resolved the matters.

         Giambo also contends PCR counsel failed to adequately investigate whether plea counsel had a conflict of interest. Because we agree with the PCR court's conclusion that this claim was meritless, PCR counsel did not breach a duty by curtailing further inquiry after she provided Giambo with transcripts refuting his conflict-of-interest claim. State v. Hoskins, 711 N.W.2d 720, 731 (Iowa 2006) (ruling counsel is not ineffective for failing to raise meritless issues).

         Giambo next asserts PCR counsel failed to identify and present evidence on the issue of Giambo's reasonable ability to reimburse court-appointed trial attorney fees. Because such fee issues do not provide grounds for relief, this claim is also meritless. See Iowa Code § 822.2(1)(g) (2015).

         Giambo next complains PCR counsel failed to challenge his trial counsel's ineffectiveness in allowing Giambo to enter a guilty plea without a factual basis. Determining a factual basis is a prerequisite for accepting a guilty plea. Iowa R. Crim. P. 2.8(2)(b). Where there is no factual basis and trial counsel allows a defendant to plead guilty, trial counsel breaches an essential duty. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). In such circumstances, we presume prejudice. Id. In deciding if a factual basis existed for Giambo's plea, we examine the record before the plea court, including the minutes of testimony, for sufficient proof supporting the conclusion Giambo assaulted the victim with intent to commit sexual abuse. See Iowa Code § 709.11 (2015); State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). The record need not ...

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