from the Iowa District Court for Buchanan County, Bradley J.
Bathen appeals the denial of his application for
Christopher Kragnes Sr. of Kragnes & Associates, Des
Moines, for appellant.
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle,
found Lonny Bathen guilty on three counts of second-degree
sexual abuse, and this court affirmed the sufficiency of the
evidence of his guilt on direct appeal. State v.
Bathen, 12-0872, 2013 WL 4769658, at *1 (Iowa Ct. App.
Sept. 5, 2013). Following his trial, Bathen pled guilty to
two additional counts of second-degree sexual abuse in
another case and entered an Alford plea to one count
of lascivious acts with a child in a third case. Bathen filed
an application for postconviction relief (PCR) alleging his
trial counsel was ineffective in numerous respects relating
to all three cases, which the district court denied. Bathen
appeals the PCR ruling, arguing both his trial and PCR
counsel were ineffective.
review is de novo. See Lamasters v. State, 821
N.W.2d 856, 862 (Iowa 2012). In order to succeed on an
ineffective-assistance claim, a PCR applicant must establish
that counsel breached a duty and prejudice resulted. See
id. at 866. We may affirm a ruling rejecting an
ineffective-assistance claim if either element is lacking.
first contends he is entitled to postconviction relief
because his trial counsel provided ineffective assistance by
failing to: (1) investigate the facts of the case, depose
witnesses, consult with him about trial strategy, and prepare
for trial adequately; (2) advise him properly regarding a
plea offer; (3) exclude or object to testimony regarding
other children he was alleged to have sexually abused; (4)
conduct voir dire or give an opening statement; (5) advise
him regarding his right to testify; and (6) advise him
properly regarding his guilty pleas. As to the first, fourth,
fifth, and sixth issues, the PCR court found Bathen failed to
show counsel breached a duty. On the two remaining claims,
the PCR court found Bathen failed to demonstrate prejudice.
charges on which Bathen went to trial concerned acts that
occurred over a period of several years with the complaining
witness, who at all relevant times was a child under the age
of twelve. It was not until the complaining witness had
reached adulthood that he reported Bathen's acts to law
enforcement. In addition to detailed testimony from the
complaining witness, the evidence against Bathen included
testimony from two witnesses to whom Bathen had confessed.
During trial, Bathen's counsel did not dispute that
Bathen had engaged in the acts alleged by the State but
questioned the age of the complaining witness at the time the
acts occurred, arguing he was twelve years of age or older.
On direct appeal, this court found substantial evidence that
the acts occurred when the child was under the age of twelve,
noting "the victim consistently testified at trial about
various sex acts occurring between him and the defendant when
he was eight to eleven years old." Bathen, 2013
WL 4769658, at *1.
de novo review, we concur with the PCR court's finding
that Bathen has fallen short on his burden of showing counsel
breached a duty by failing to investigate, prepare for trial,
conduct voir dire, present an opening statement, advise him
regarding his right to testify, or advise him properly
regarding his guilty pleas . With regard to the remaining
claims, we concur with the PCR court's finding that
Bathen has failed to establish that he was prejudiced by any
breach of trial counsel's duty. Although counsel should
have sought to prevent evidence of Bathen's sexual abuse
of others from being introduced at trial, we are unable to
find this failure prejudiced Bathen in light of the strong
evidence of Bathen's guilt. We also agree that Bathen
failed to demonstrate a reasonable probability that he would
have accepted the State's plea offer. The State offered
Bathen a twenty-five year sentence with the requirement that
he serve seventy-percent of his sentence, and Bathen
testified that he would have refused to accept a
seventeen-and-a-half year sentence because he considered it
"a death sentence" in light of his health problems.
Likewise, we are unable to find that Bathen demonstrated a
reasonable probability that he would not have pled guilty to
the other charges but for counsel's ineffective
assistance during his trial.
also argues that he was prejudiced by the cumulative effect
of counsel's errors. See State v. Clay, 824
N.W.2d 488, 501 (Iowa 2012) (recognizing that the cumulative
effect of counsel's errors may prejudice a defendant even
though no individual instance is sufficient to establish
prejudice). In doing so, we consider the cumulative prejudice
of only those claims for which we have determined that
counsel failed to perform a duty or for which we analyzed
only under the prejudice prong. See id. Bathen has
also failed to show the cumulative effect of counsel's
failure to advise him regarding the State's plea offers
before and after trial and to prevent the introduction of
evidence concerning Bathen's sexual abuse of others
Bathen alleges his PCR counsel was ineffective in a number of
respects. He concedes that the record is insufficient to
address his ineffective-assistance-of-PCR-counsel claims in
this appeal. Regardless, the proper mechanism for resolving
claims of ineffective assistance of PCR counsel raised for
the first time on appeal is for an applicant to file a
separate PCR application in the district court. See Goode
v. State, 920 N.W.2d 520, 526-27 (Iowa 2018). Because
his first PCR action was timely, a second application raising
claims of ineffective assistance of PCR counsel will be
timely if promptly filed following this appeal. See
Allison v. State, 914 N.W.2d 866, 891 (Iowa 2018);
see also Goode, 920 N.W.2d at 526 ("Based ...