TERRY L. SCHOTT, SR., Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.
from the Iowa District Court for Chickasaw County, Margaret
L. Lingreen, Judge.
Schott appeals from the district court's denial of his
application for postconviction relief.
C. Abbott of Abbott Law Office, P.C., Waterloo, for
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., Mullins, J., and
Potterfield, S.J. [*]
VAITHESWARAN, PRESIDING JUDGE
found Terry Schott guilty of third-degree sexual abuse in
connection with sex acts performed on a fifteen-year-old
girl. This court affirmed his judgment but vacated his
sentence and remanded the case for resentencing. State v.
Schott, No. 10-0158, 2011 WL 2071725, at *1 (Iowa Ct.
App. May 25, 2011). Following resentencing, Schott filed a
postconviction-relief application. The district court denied
the application after an evidentiary hearing.
appeal, Schott argues (1) his trial attorneys were
ineffective in connection with plea discussions he rejected;
(2) the postconviction court erred in rejecting his claim of
newly-discovered evidence; and (3) the postconviction court
should have granted a new trial based on the trial
court's denial of his requests for expert witnesses.
Plea Advice - Ineffective Assistance of Counsel
contends he was "completely unaware" that the class
"C" felony of third-degree sexual abuse
"carried with it a sentence [of] lifetime parole and
that knowing this information would have seriously changed
his decision to reject a plea offer made by the State and
take the matter to trial by jury." He asserts his trial
attorneys were ineffective in failing to inform him of the
sentence. To prevail, Schott must show (1) counsel breached
an essential duty and (2) prejudice resulted. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). In
the plea context, the prejudice inquiry focuses on whether
counsel's conduct affected the plea process. Kirchner
v. State, 756 N.W.2d 202, 205 (Iowa 2008) ("This
actual prejudice requirement has led courts to hold that in
order to prove prejudice, an applicant who previously
rejected a plea offer in favor of going to trial 'must
show that, but for counsel's advice, he would have
accepted the plea.'" (citation omitted)). We
"do not, in the light of 20-20 hindsight, assume the
role of Monday morning quarterback." Fryer v.
State, 325 N.W.2d 400, 414 (Iowa 1982).
testified the State afforded him the chance to plead guilty
to a misdemeanor, which would not have carried a sentence of
lifetime parole. He stated he would have "seriously
considered" the plea offer had his attorneys
"explained" the prospect of "lifetime
supervision" associated with the third-degree sexual
abuse charge. Schott "offered no evidence to support his
self-serving statement." See Kirchner, 756
N.W.2d at 206; see also Langdeaux v. State, No.
10-1625, 2012 WL 1439077, at *3 (Iowa Ct. App. Apr. 25, 2012)
(noting "[t]he applicant must present some credible,
nonconclusory evidence that he would have pled guilty had he
been properly advised," citing defense attorney's
testimony that the defendant was angry about pleading guilty
because he "was convinced he didn't do anything
wrong" (citation omitted)). And, as the postconviction
court noted, Schott admitted telling his attorneys he did not
wish to plead guilty to any crime. Finally, while Schott
testified that he did not learn of the lifetime-parole
obligation until after he "was actually in prison,"
the order imposing judgment and sentence stated Schott was
"subject to the special sentencing provisions of Iowa
Code [s]ection 728.12" and stated, "In addition to
any other punishment set forth in this order, defendant is
committed to the custody of the director of the Department of
Corrections for the rest of his life, with eligibility of
parole as provided in Iowa Code section 906."
See Iowa Code § 903B.1 (2008) ("A person
convicted of . . . a class 'C felony under section
728.12, shall also be sentenced, in addition to any other
punishment provided by law, to a special sentence committing
the person into the custody of the director of the Iowa
Department of Corrections for the rest of the person's
life, with eligibility for parole as provided in chapter
906."). Although the sentencing order post-dated
trial and any plea negotiations, the order's reference to
lifetime parole casts doubt on Schott's claimed ignorance
of the sentence.
de novo review, we conclude this was a case of buyer's
remorse. See Bucklin v. State, No. 06-1942, 2008 WL
375219, at *3 (Iowa Ct. App. Feb. 13, 2008). Schott did not
establish a reasonable probability that he would have pled
guilty to the misdemeanor rather than proceed to trial.
Accordingly, the postconviction court appropriately denied
his ineffective-assistance-of-counsel claim.
next contends he presented newly-discovered evidence to
support his claim that the fifteen-year-old fabricated the
allegation of abuse and the postconviction court erred in
rejecting the evidence. The claimed newly-discovered evidence
came in the form of an affidavit attached to Schott's
postconviction-relief application. The affiant was the
teen's now-incarcerated boyfriend, ...