from the Iowa District Court for Henry County, Mark Kruse,
applicant convicted of second-degree theft appeals the denial
of his application for postconviction relief.
Jeffrey L. Powell of Powell and McCullough, PLC, Coralville,
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee State.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
Henry County Attorney charged Thomas Morris with stealing
three cars, burglarizing two other cars, and taking a
navigation system during the summer of 2014. After his public
defender negotiated a plea agreement, Morris pleaded guilty
to one count of theft in the second degree. Represented by
retained counsel at sentencing, Morris received an
indeterminate five-year suspended prison term. He did not
file a direct appeal. But after the district court revoked
his probation in 2015, Morris filed an application for
postconviction relief (PCR), challenging counsel's
performance. The district court denied relief. Morris appeals
that denial, alleging he was prejudiced by "two separate
attorneys' failure to follow his wishes regarding
withdrawal of his guilty plea."
Morris fails to meet his burden to show a breach of duty by
his attorneys in the guilty-plea process, we affirm the PCR
Facts and Prior Proceedings
plea hearing in November 2014, Morris admitted taking
possession of a 2000 Ford Contour, valued at more than $1000
but not more than $10, 000, with the intent to permanently
deprive the owner of that vehicle. His plea to one count of
second-degree theft was part of a comprehensive bargain. In
exchange for his guilty plea, the parties agreed to a
five-year prison sentence and the dismissal of two additional
second-degree theft counts, one fourth-degree theft count,
and two counts of third-degree burglary. The State also
agreed to dismiss an unrelated felony drug charge.
sentencing, Morris retained attorney Frank Santiago, and his
public defender, Djalal Arbabha, withdrew. Notwithstanding
terms of the plea agreement, at the January 2015 hearing,
attorney Santiago urged the district court to grant Morris a
suspended sentence. The court asked if Morris understood the
"ramifications" of not abiding by the plea deal.
The defense confirmed the State would go forward with
prosecuting the felony drug charge but would still dismiss
the remaining counts. The district court imposed a prison
term not to exceed five years, suspended the sentence, and
placed Morris on probation for five years. Morris did not
appeal the conviction or sentence.
2015, Morris's probation officer filed a report alleging
several violations, including possession of contraband and
commission of theft. Based on that report, the district court
revoked Morris's probation and imposed the previously
suspended five-year sentence.
February 2016, Morris filed a PCR application, which alleged
counsel was ineffective for failing to file a motion in
arrest of judgment challenging the factual basis for
Morris's guilty plea to second-degree theft. During the
district court's hearing on the application, Morris
testified by deposition, and both attorney Arbabha and
attorney Santiago testified in person. Morris alleged he
didn't fully understand the elements of the theft charge.
Morris testified before he hired attorney Santiago, he asked
attorney Arbabha to move to withdraw the guilty plea. Morris
maintained Arbabha said he would draft a motion but failed to
follow through. Attorney Arbabha testified if Morris had
insisted on filing a motion in arrest of judgment to
challenge the guilty plea, he would have done so. Attorney
Santiago likewise testified Morris did not express an
interest in filing a motion in arrest of judgment before
rejecting the PCR application, the district court found
Morris's testimony to be unbelievable. The court
concluded Morris's claim "two lawyers simply ignored
a request to file the motion or otherwise [was] unsupported
by sufficient ...