from the Iowa District Court for Polk County, Jeffrey D.
offender appeals the denial of his application for
A. Hurd of Glazebrook & Hurd LLP, Des Moines, for
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor,
Richardson appeals the denial of his application for
postconviction relief (PCR). In rejecting his claims of
ineffective assistance of counsel, the district court
observed that Richardson received "a very beneficial
plea" as a result of his attorney's negotiations
with the prosecution. On appeal, Richardson insists his
attorney was ineffective in failing to secure
Richardson's own phone records to see if they would
corroborate an alibi defense. Richardson also contends he did
not believe his attorney was ready to proceed to trial and
left him no option other than accepting the plea offer.
Finding no merit in Richardson's contentions, we affirm
the thorough and well-reasoned ruling by the district court.
State originally charged Anthony Richardson with first-degree
robbery, first-degree burglary, and second-degree sexual
abuse in connection with an armed home invasion involving two
assailants. Had Richardson been convicted of those three
class "B" felonies, he faced the possibility of
seventy-five years in prison with a mandatory minimum term of
thirty-five years. Instead, in July 2014, he accepted a plea
offer amending the trial information to a single count of
first-degree theft. He also pleaded guilty to a separate
charge of third-offense possession of marijuana. Richardson
did not file a motion in arrest of judgment. In accordance
with the plea agreement, the court sentenced Richardson to an
indeterminate fifteen-year prison sentence with no mandatory
minimum. Richardson did not file a direct appeal.
September 2014, Richardson filed a PCR application, as a
self-represented litigant, listing five grounds for relief:
"(1) newly discovered evidence the victim is recanting
her statement saying she knows who the actual intruder is;
(2) ineffective assistance of counsel failure to investigate;
(3) misidentification; (4) subjective photo lineup; [and] (5)
illegal sentencing." His PCR attorney filed an amended
application in May 2015. The PCR court heard testimony from
Richardson in October 2016. The State countered with the
deposition of plea counsel Matthew Sheeley. In a twelve-page
ruling, the district court denied the PCR application.
Richardson filed a motion to enlarge, asking the district
court to address whether "counsel's failure to
procure telephone records was ineffective assistance."
The court issued an order specifically denying relief on the
failure-to-investigate claim, stating: "There is no
indication whether the proposed records exist, and if they
did, what they would show." The court denied a second
round of post-trial motions. And Richardson filed a notice of
appeal, Richardson alleges attorney Sheeley breached a duty
in failing to properly investigate his alibi defense
rendering his guilty plea involuntary. In particular,
Richardson claims counsel should have obtained his phone
records to show he was not at the scene of the crime.
Richardson further complains, in a single sentence of his
appellant's brief, that counsel's "other
actions" left him "feeling he had no option"
but to enter an Alford plea. Those actions included
failing to interview the alleged victim and telling
Richardson that he was unprepared for trial.
[PCR] applicants who seek relief as a consequence of
ineffective assistance of counsel must establish counsel
breached a duty and prejudice resulted." Castro v.
State, 795 N.W.2d 789, 794 (Iowa 2011) (citing State
v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009)). But a
claim of ineffective assistance will only survive a guilty
plea if counsel's pre-plea omission rendered the plea
involuntary or unintelligent. Id. at 793. "The
burden to prove the prejudice element ultimately requires a
[PCR] applicant who has entered a plea of guilty to establish
a reasonable probability of a different outcome (stand for
trial instead of pleading guilty) if the breach had not
occurred." Id. at 794.
did not credibly establish that had attorney Sheeley checked
for "potentially exculpatory phone records, "
Richardson would have stood for trial instead of accepting
the "very beneficial" plea deal. We agree with the
district court that Richardson fails to establish a breach of
a duty where it is not clear what seeking those records would
have achieved. They are Richardson's own records, so
presumably Richardson should be able to assert what they
would show, but he does not make such an assertion. We also
agree with the district court's assessment that
Sheeley's strategic decision not to depose the victim did
not impact Richardson's decision to enter an
Alford plea; Richardson "fully intended to
proceed to trial whether or not the victim was deposed. He
only decided to consider a plea after his former codefendant
entered into a plea agreement and the State added him to the
witness list." Finally, the district court aptly
dispensed with Richardson's strained interpretation of
Sheeley's statement that he was not prepared for trial,
explaining the experienced defense attorney "was being
facetious"-"simply making a point with defendant
that his decision not to waive speedy trial carried some
tradeoffs with the ability to fully prepare for trial."
reviewing the criminal and PCR records and Richardson's
claims, we affirm the decision of the district court by
memorandum opinion ...