from the Iowa District Court for Polk County, Douglas F.
from the denial of an application for postconviction relief.
C. Abbott of Abbott Law Office, P.C., Waterloo, for
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
Ware pursues this appeal from the denial of his application
for postconviction relief. This court previously affirmed
Ware's convictions and sentences on direct appeal.
See State v. Ware, No. 13-0831, 2014 WL 3748202, at
*1 (Iowa Ct. App. July 30, 2014).
Ware was charged with eleven drug-related charges. He entered
into a plea agreement in which he agreed to plead guilty to
four of the charges and the remainder would be dismissed. On
March 18, 2013, Ware pled guilty to delivery of a simulated
controlled substance as a second or subsequent offender, in
violation of Iowa Code sections 124.401(1)(c)(2)(b) and
124.411 (2011), a class "C" felony; possession of a
controlled substance (methamphetamine) with intent to deliver
as a second or subsequent offender, in violation of sections
124.401(1)(b)(7) and 124.411, a class "B" felony;
possession of a controlled substance (marijuana) with intent
to deliver as a second or subsequent offender, in violation
of sections 124.401(1)(d) and 124.411, a class "D"
felony; and delivery of a controlled substance
(methamphetamine) as a second or subsequent offender, in
violation of sections 124.401(1)(c)(6) and 124.411, a class
"C" felony. The district court accepted Ware's
Under section 124.411(1), as a second or subsequent offender
Ware was facing up to 150 years in prison for the offenses he
pled guilty to. Pursuant to the plea agreement, the parties
jointly agreed to recommend certain sentences that would give
Ware up to sixty-five years in prison. At the sentencing
hearing the prosecutor and defense counsel both recommended
Ware receive a sentence of sixty-five years in prison. The
court sentenced Ware to terms of imprisonment not to exceed
ten years, sixty-five years, five years, and ten years, to be
served concurrently, for a total term of imprisonment of
sixty-five years. Ware was required to serve a mandatory
minimum one-third of his sentence, and the court reduced that
by one-third because Ware had accepted responsibility by
Id. In this appeal, Ware asserts the following
claims: (1) his plea counsel provided ineffective assistance
in failing to investigate a motion to suppress evidence; (2)
his plea counsel provided ineffective assistance in failing
to investigate certain matters; and (3) his plea counsel
provided ineffective assistance in coercing Ware to plead
guilty and/or in failing to challenge Ware's guilty plea
court reviews Ware's claims de novo. See State v.
Straw, 709 N.W.2d 128, 133 (Iowa 2006) (stating
ineffective-assistance-of-counsel claims are reviewed de
novo). To establish his claims of ineffective assistance of
counsel, Ware must prove by a preponderance of the evidence
that his counsel's performance was so deficient it
constituted a breach of an essential duty and that the breach
of an essential duty resulted in constitutional prejudice.
See id. "Failure to make the required showing
of either deficient performance or sufficient prejudice
defeats the ineffectiveness claim." Strickland v.
Washington, 466 U.S. 668, 700 (1984); accord State
v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) ("A
defendant's inability to prove either element is
fatal."). With respect to the first element, Ware must
prove his counsel's performance fell below the standard
of a reasonably competent attorney. See Ledezma v.
State, 626 N.W.2d 134, 142 (Iowa 2001). In assessing
counsel's performance, we presume counsel acted
competently. See State v. Horness, 600 N.W.2d 294,
298 (Iowa 1999). With respect to prejudice, Ware must prove
that but for counsel's breach of an essential duty he
would have insisted on going to trial. See Hill v.
Lockhart, 474 U.S. 52, 57-59 (1985).
first claim is his counsel was ineffective in failing to
investigate a motion to suppress evidence. Ware contends his
counsel should have moved to suppress evidence obtained
following the execution of a search warrant. Ware claims his
counsel should have investigated the veracity of the officer
preparing the warrant and other factual discrepancies in the
warrant. Ware claims if his counsel would have investigated
these issues, then a meritorious ground for suppressing the
warrant would have been developed, and then he would not have
pleaded guilty. Ware's claim is factually and legally
underdeveloped. Ware does not identify with any specificity
the evidence that should have been suppressed. Ware does not
explain how the unidentified evidence obtained by way of the
warrant at issue was relevant to the three other charges to
which he pleaded guilty. Ware does not identify the legal
grounds upon which the evidence would have been suppressed.
And Ware cites no legal authority in support of his
contention any motion to suppress evidence would have been
granted. This court is not obligated to construct
counsel's arguments. See State v. Stoen, 596
N.W.2d 504, 507 (Iowa 1999); see also United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("A
skeletal 'argument, ' really nothing more than an
assertion, does not preserve a claim . . . Judges are not
like pigs, hunting for truffles buried in briefs.").
Ware has not proved an entitlement to postconviction relief
on this claim.
second claim is his trial counsel failed to investigate
certain matters. For example, Ware contends his trial counsel
failed to obtain police reports and other materials, failed
to retrieve purported alibi evidence from a cell phone, and
failed to conduct other discovery. Like his claim regarding
the search warrant, Ware's claim is factually and legally
underdeveloped. He ignores his own admissions of guilt. For
example, he concedes he was arrested with one pound of
marijuana in his possession. In light of Ware's repeated
concessions of his guilt, Ware has not identified how the
purported discovery and investigation would have aided his
cases or caused him to proceed to trial rather than plead
guilty. He also cites no legal authority in support of his
contentions. This claim does not entitle Ware to any relief.
See Dunkel, 927 F.2d at 956; Stoen, 596
N.W.2d at 507.
Ware claims his guilty plea was not voluntarily made. A court
may accept a guilty plea if it "is made voluntarily and
intelligently and has a factual basis." Iowa R. Crim. P.
2.8(2)(b). To satisfy due process, the plea must be voluntary
and intelligent. See State v. Speed, 573 N.W.2d 594,
597 (Iowa 1998). Voluntariness requires an inquiry by the
district court as to whether a defendant understands the
nature of the offense and the legal consequences of the plea
and was not compelled or otherwise coerced into making an
involuntary plea. See State v. Sisco, 169 N.W.2d
542, 547 (Iowa 1969). A claim that a guilty plea was not
actually knowing and voluntary relates to the defendant's
subjective understanding of the plea proceeding. See
State v. Finney, 834 N.W.2d 46, 58 (Iowa 2013). This
requires the "court to delve into the accused's
state of mind." Id. "If a ...