IN THE COURT OF APPEALS OF IOWA
No. 14-0999 Filed September 23, 2015
DECARLOS MATLOCK, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Monica L.
Ackley, Judge.
A defendant filed a request for postconviction relief contending his counsel
was ineffective in advising him of the number of days he could be incarcerated
on his admission of a probation violation. AFFIRMED.
Mark C. Smith, State Appellate Defender, Robert P. Ranschau, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney
General, Ralph Potter, County Attorney, and Alisha Stach-Lorang, Assistant
County Attorney, for appellee State.
Considered by Potterfield, P.J., McDonald, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
GOODHUE, Senior Judge.
DeCarlos Matlock filed a request for postconviction relief contending his
counsel was ineffective in advising him of the number of days he could be
incarcerated on his admission of a probation violation. Matlock was denied relief,
and he has appealed.
I. Background Facts
Matlock pled guilty on November 25, 2012, to two counts of credit card
fraud and one count of second offense domestic abuse assault. The sentences
on the fraud charges were concurrent with each other but the sentence on the
domestic abuse assault charge was ordered to run consecutive to the fraud
charges, making a total sentence of four years. Matlock was granted probation.
On September 26, 2013, Matlock stipulated to a report of violations. The
stipulation indicated that he would receive credit for time on probation as
provided by Anderson v. State, 801 N.W.2d 1 (Iowa 2011). As an alternative to
revocation of his probation, Matlock’s probation officer communicated through his
attorney that she would recommend a finding of contempt with a 120-day jail
sentence.
Matlock, through counsel, endeavored to determine how much time he
would be required to spend in prison if his probation was revoked. His counsel
tried to obtain the answer from the classification center but was told that it does
not make Anderson credit calculations before a party arrives at the center.
Counsel attempted to get the information from the sheriff’s office but was
unsuccessful. Counsel then had Matlock’s probation officer make a calculation.
The probation officer provided worksheets indicating Matlock would be required 3
to serve approximately thirty days. Based on that information Matlock asked the
probation officer to recommend that his probation be revoked.
Upon arrival at the classification center, Matlock was informed that he had
334 days left to serve. He arrived in prison on October 3, 2013, was released on
parole on April 21, 2014, and discharged his probation on July 23, 2014.
Matlock filed a request for postconviction relief, claiming counsel was
ineffective in failing to determine the number of days he would be required to
serve after receiving the Anderson credit. He further alleges that if he had been
correctly informed, he would have agreed to the contempt and 120-day
incarceration option. The postconviction relief hearing was held on March 12,
2014.
At the hearing, Matlock stated he received worksheets prepared by the
probation officer showing he would serve approximately thirty days if his
probation was revoked. He also admitted that he relied on the worksheets in
making his decision. He testified he relied on his attorney in making the decision,
but admitted she told him the worksheets might not be exactly right. He testified
that but for the worksheet calculations, he would have taken the contempt option
and remained on probation.
Matlock’s counsel at the revocation hearing testified at the postconviction
relief hearing that in her experience, the final computation of the credit due is
prepared by the department of corrections after the party arrives at the
classification center and that Matlock was so advised. She further stated the
worksheets prepared by the probation officer did not appear accurate and she
discussed her concern with Matlock. 4
Matlock requests that his probation revocation be set aside so he can take
the contempt-sentence option. The district court denied his request in its ruling
dated April 22, 2014. The court stated that the calculation of the credit was a
function of the department of corrections and not a court function at the time of
sentencing or at the time of the revocation and did not raise an ineffective-
assistance-of-counsel issue. The court further found that the testimony of
Matlock’s counsel was credible. Matlock filed a motion to enlarge, but the district
court reaffirmed its ruling without directly addressing the ineffective-assistance-
of-counsel issue.
The State filed a motion to dismiss, contending since Matlock was
released from probation while the matter was pending the issue was moot. The
supreme court refused to dismiss, indicating the mootness issue could be
addressed by the appellee’s brief and an appellant’s reply brief.
II. Error Preservation
For error to be preserved, ordinarily the issue must be raised and ruled
upon by the trial court. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
The State contends error has not been preserved since the trial court did not rule
on the ineffective-assistance-of-counsel issue. Matlock raised the issue both in
his petition and in his motion to enlarge. The court recognized the issue but
disposed of it by stating that the probation officer’s erroneous calculation of the
Anderson credit did not raise an issue of ineffective assistance of counsel. It is
fair to say that the court considered the claim of ineffective assistance counsel
and denied it as not being the real issue. In addition, there is at least dicta to the
effect that if a court refuses to rule on a claim, error has been preserved. Linge 5
v. Ralston Purina Co., 293 N.W.2d 191, 195 (Iowa 1980). Error has been
preserved.
III. Standard of Review
Appeals from denials of postconviction-relief cases are ordinarily reviewed
for correction of errors at law, but when a constitutional issue such as a claim of
ineffective assistance of counsel is involved the matter is reviewed de novo.
Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012).
IV. Discussion
Under Iowa’s statutory scheme, when an indeterminate criminal sentence
is ordered to be served, the actual time a defendant is required to serve is
determined by the department of corrections. See generally Iowa Code ch. 903A
(2013). The department of corrections representative completed the worksheets
that indicated the time Matlock might be required to serve. Counsel advised
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IN THE COURT OF APPEALS OF IOWA
No. 14-0999 Filed September 23, 2015
DECARLOS MATLOCK, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Monica L.
Ackley, Judge.
A defendant filed a request for postconviction relief contending his counsel
was ineffective in advising him of the number of days he could be incarcerated
on his admission of a probation violation. AFFIRMED.
Mark C. Smith, State Appellate Defender, Robert P. Ranschau, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney
General, Ralph Potter, County Attorney, and Alisha Stach-Lorang, Assistant
County Attorney, for appellee State.
Considered by Potterfield, P.J., McDonald, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
GOODHUE, Senior Judge.
DeCarlos Matlock filed a request for postconviction relief contending his
counsel was ineffective in advising him of the number of days he could be
incarcerated on his admission of a probation violation. Matlock was denied relief,
and he has appealed.
I. Background Facts
Matlock pled guilty on November 25, 2012, to two counts of credit card
fraud and one count of second offense domestic abuse assault. The sentences
on the fraud charges were concurrent with each other but the sentence on the
domestic abuse assault charge was ordered to run consecutive to the fraud
charges, making a total sentence of four years. Matlock was granted probation.
On September 26, 2013, Matlock stipulated to a report of violations. The
stipulation indicated that he would receive credit for time on probation as
provided by Anderson v. State, 801 N.W.2d 1 (Iowa 2011). As an alternative to
revocation of his probation, Matlock’s probation officer communicated through his
attorney that she would recommend a finding of contempt with a 120-day jail
sentence.
Matlock, through counsel, endeavored to determine how much time he
would be required to spend in prison if his probation was revoked. His counsel
tried to obtain the answer from the classification center but was told that it does
not make Anderson credit calculations before a party arrives at the center.
Counsel attempted to get the information from the sheriff’s office but was
unsuccessful. Counsel then had Matlock’s probation officer make a calculation.
The probation officer provided worksheets indicating Matlock would be required 3
to serve approximately thirty days. Based on that information Matlock asked the
probation officer to recommend that his probation be revoked.
Upon arrival at the classification center, Matlock was informed that he had
334 days left to serve. He arrived in prison on October 3, 2013, was released on
parole on April 21, 2014, and discharged his probation on July 23, 2014.
Matlock filed a request for postconviction relief, claiming counsel was
ineffective in failing to determine the number of days he would be required to
serve after receiving the Anderson credit. He further alleges that if he had been
correctly informed, he would have agreed to the contempt and 120-day
incarceration option. The postconviction relief hearing was held on March 12,
2014.
At the hearing, Matlock stated he received worksheets prepared by the
probation officer showing he would serve approximately thirty days if his
probation was revoked. He also admitted that he relied on the worksheets in
making his decision. He testified he relied on his attorney in making the decision,
but admitted she told him the worksheets might not be exactly right. He testified
that but for the worksheet calculations, he would have taken the contempt option
and remained on probation.
Matlock’s counsel at the revocation hearing testified at the postconviction
relief hearing that in her experience, the final computation of the credit due is
prepared by the department of corrections after the party arrives at the
classification center and that Matlock was so advised. She further stated the
worksheets prepared by the probation officer did not appear accurate and she
discussed her concern with Matlock. 4
Matlock requests that his probation revocation be set aside so he can take
the contempt-sentence option. The district court denied his request in its ruling
dated April 22, 2014. The court stated that the calculation of the credit was a
function of the department of corrections and not a court function at the time of
sentencing or at the time of the revocation and did not raise an ineffective-
assistance-of-counsel issue. The court further found that the testimony of
Matlock’s counsel was credible. Matlock filed a motion to enlarge, but the district
court reaffirmed its ruling without directly addressing the ineffective-assistance-
of-counsel issue.
The State filed a motion to dismiss, contending since Matlock was
released from probation while the matter was pending the issue was moot. The
supreme court refused to dismiss, indicating the mootness issue could be
addressed by the appellee’s brief and an appellant’s reply brief.
II. Error Preservation
For error to be preserved, ordinarily the issue must be raised and ruled
upon by the trial court. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
The State contends error has not been preserved since the trial court did not rule
on the ineffective-assistance-of-counsel issue. Matlock raised the issue both in
his petition and in his motion to enlarge. The court recognized the issue but
disposed of it by stating that the probation officer’s erroneous calculation of the
Anderson credit did not raise an issue of ineffective assistance of counsel. It is
fair to say that the court considered the claim of ineffective assistance counsel
and denied it as not being the real issue. In addition, there is at least dicta to the
effect that if a court refuses to rule on a claim, error has been preserved. Linge 5
v. Ralston Purina Co., 293 N.W.2d 191, 195 (Iowa 1980). Error has been
preserved.
III. Standard of Review
Appeals from denials of postconviction-relief cases are ordinarily reviewed
for correction of errors at law, but when a constitutional issue such as a claim of
ineffective assistance of counsel is involved the matter is reviewed de novo.
Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012).
IV. Discussion
Under Iowa’s statutory scheme, when an indeterminate criminal sentence
is ordered to be served, the actual time a defendant is required to serve is
determined by the department of corrections. See generally Iowa Code ch. 903A
(2013). The department of corrections representative completed the worksheets
that indicated the time Matlock might be required to serve. Counsel advised
Matlock that the actual period of confinement would only be finally determined
after his arrival at the classification center. She also advised him that the
computation prepared by the probation officer did not appear to be correct.
Ineffective-assistance-of-counsel claims require a finding of failure of
counsel to perform an essential duty. State v. Clay, 824 N.W.2d 488, 495 (Iowa
2012). Counsel did not erroneously advise Matlock of the time he would have to
serve. Instead, she advised him that the remaining time would not be computed
by the department until he arrived at the classification center. It was a matter of
interest for Matlock to know exactly how much time he would spend in prison, but
that calculation is made by the department of corrections. When an 6
indeterminate sentence is involved counsel can only advise as to the parameters
of the sentence.
Counsel is presumed to have performed in a competent manner. State v.
Dalton, 674 N.W.2d 111, 119 (Iowa 2004). Counsel’s performance is measured
against that of a reasonably competent attorney. Id. The determination of the
time remaining on a sentence is a matter within the responsibility of the
department of corrections. Counsel advised Matlock accordingly.
Furthermore, Matlock’s complaint is based on what the probation officer
agreed to recommend. It is the court’s prerogative to revoke the probation or
make a finding of contempt and set the jail time to be served. Iowa Code
§ 908.11. The “agreement” worked out with the probation officer is only as to her
recommendation and was not by any means conclusive as to a final disposition.
The second requirement of a successful ineffective-assistance-of-counsel
claim is prejudice. Clay, 824 N.W.2d at 496. Matlock’s assumption he “could
choose” was based on conjecture and affords no consideration to the court’s final
authority in the process. Matlock’s “agreement” with the probation officer may
not have been meaningless, but it was not determinative of the outcome of the
proceeding regardless of Matlock’s choice of punishment. Matlock has not
established prejudice since there is no indication the court was involved in
allowing him to select his punishment or would give serious consideration to the
probation officer’s recommendation.
The State contends this matter is moot because Matlock was released
from prison over a year ago. Since Matlock’s claim of ineffective assistance of 7
counsel is meritless and without substance, we do not address the mootness
issue.
AFFIRMED.