IN THE COURT OF APPEALS OF IOWA
No. 22-0916 Filed March 29, 2023
DOMNICK DEMETRIS HOGAN, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Wyatt Peterson,
Judge.
An applicant seeks postconviction relief from his conviction for second-
degree robbery. AFFIRMED.
Raya D. Dimitrova of Carr Law Firm, P.L.C., Des Moines, for appellant.
Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and Schumacher and Ahlers, JJ. 2
SCHUMACHER, Judge.
Domnick Hogan seeks postconviction relief (PCR) from his conviction for
second-degree robbery. Hogan has not shown he received ineffective assistance
on his claim that defense counsel failed to inform him of the direct consequences
of his guilty plea. We affirm the district court’s decision denying his PCR
application.
I. Background Facts & Proceedings
Hogan was charged with first-degree robbery, in violation of Iowa Code
sections 711.1(1) and 711.2 (2018), a class “B” felony, and possession of a firearm
by a felon, in violation of section 724.26(1), a class “D” felony. If he was convicted
of both charges and the sentences were to be served consecutively, Hogan was
facing thirty years in prison.
Hogan entered into a plea agreement wherein he would plead guilty to a
reduced charge of second-degree robbery, a class “C” felony, and the charge of
possession of a firearm by a felon would be dismissed. The plea agreement
included the provision, “At sentencing, both parties will recommend a 10-year
prison sentence, with the imposition of the mandatory seven-year sentence.”
At the plea hearing, held on October 18, 2018, defense counsel set out the
terms of the plea agreement, including the provision that both parties would
recommend “the imposition of the seven years mandatory time.” The court
informed Hogan the sentencing recommendation in the plea agreement was not
binding on the court. The following exchange also occurred:
The Court: There are certain maximum and minimum penalties for the crime to which you’re pleading guilty, which I understand to be Robbery in the Second Degree. The following are 3
the maximum and minimum penalties imposed, as well as other possible consequences of your plea. The maximum sentence is up to ten years in the Iowa State Penitentiary. The maximum fine is $10,000, plus a 35 percent surcharge, plus court costs, and possible restitution, and also reimbursement to the State for any court-appointed attorney fees. The minimum penalties are you must serve at least between 50 and 70 percent of the maximum sentence—and, again, the maximum sentence is ten years—before you are eligible for parole or work release. There is a minimum $1000 fine, plus the surcharges, court costs, court-appointed attorney’s fees, and restitution I mentioned previously. That fine cannot be suspended. In addition, you are required to submit a DNA specimen or provide a DNA specimen. Do you understand the possible maximum and the required minimum penalties for the crime with which you are charged? Hogan: Yes, sir.
The court accepted Hogan’s guilty plea to second-degree robbery. On
December 3, 2018, Hogan was sentenced to a term of imprisonment not to exceed
ten years. The judgment entry stated, “The mandatory minimum sentence
pursuant to Iowa Code section 902.12 shall apply.”1 Hogan did not appeal his
conviction or sentence.
Hogan filed a PCR application on January 28, 2019. He claimed he
received ineffective assistance because defense counsel did not adequately
1 Section 902.12(4) provided: A person serving a sentence for a conviction for robbery in the second degree in violation of section 711.3 for a conviction that occurs on or after July 1, 2016, shall be denied parole or work release until the person has served between one-half and seven- tenths of the maximum term of the person’s sentence as determined under section 901.11, subsection 4. At the time Hogan was sentenced this was section 902.12(3) and it has since been renumbered. For convenience we refer to the current code number. The judgment entry did not specify the percentage of the total sentence Hogan should serve as a mandatory minimum sentence. On appeal, however, Hogan and the State agree Hogan must serve a mandatory minimum sentence of seven years. 4
inform him of the mandatory minimum sentence for second-degree robbery before
he pled guilty. He stated that if he had known he might be sentenced to fifty
percent of a ten-year sentence, which is five years, rather than seventy-percent,
which is seven years, he would not have pled guilty and would have insisted on
going to trial.
The district court denied Hogan’s PCR claims. The PCR court noted that
at the guilty plea proceedings, the court explained the mandatory minimum
sentence to Hogan, specifically stating, “you must serve at least between 50 and
70 percent of the maximum sentence.” Also, there is no indication the State would
have agreed to a plea agreement where the parties recommended a five-year
mandatory minimum rather than a seven-year mandatory minimum. The court
found Hogan failed to show he received ineffective assistance of counsel. Hogan
now appeals, claiming he received ineffective assistance of counsel.
II. Standard of Review
We conduct a de novo review of claims of ineffective assistance of counsel.
State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of
ineffective assistance of counsel, an applicant must prove: (1) counsel failed to
perform an essential duty and (2) the failure resulted in prejudice. State v. El-Amin,
952 N.W.2d 134, 138 (Iowa 2020). “We presume counsel performed competently
unless the claimant proves otherwise by a preponderance of the evidence.” State
v. Booth-Harris, 942 N.W.2d 562, 577 (Iowa 2020). When there has been a guilty
plea, to show prejudice an applicant must establish that “there is a reasonable
probability that, but for counsel’s error he or she would not have pleaded guilty and 5
would have insisted on going to trial.” Horton v. State, 966 N.W.2d 663, 666 (Iowa
Ct. App. 2021) (citation omitted).
III. Discussion
Hogan claims he received ineffective assistance because defense counsel
did not inform him about a direct consequence of his guilty plea. He states defense
counsel had a duty to inform him of the mandatory minimum sentence for second-
degree robbery, which under section 902.12(4) could be “between one-half and
seven-tenths of the maximum term of [his] sentence.” Hogan asserts that if he had
known he could receive fifty percent of a ten-year sentence, or five years, he would
not have agreed to the plea agreement that provided the parties would recommend
a mandatory minimum sentence of seven years.
A similar argument was raised in Williams v. State, where Maurice Williams
claimed defense counsel “was ineffective in informing him about the minimum
sentence on the robbery counts.” No. 15-0633, 2016 WL 5480736, at *1 (Iowa Ct.
App. Sept. 28, 2016). We determined, “Assuming without deciding counsel
provided incorrect information about the robbery sentences before Williams
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IN THE COURT OF APPEALS OF IOWA
No. 22-0916 Filed March 29, 2023
DOMNICK DEMETRIS HOGAN, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Wyatt Peterson,
Judge.
An applicant seeks postconviction relief from his conviction for second-
degree robbery. AFFIRMED.
Raya D. Dimitrova of Carr Law Firm, P.L.C., Des Moines, for appellant.
Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and Schumacher and Ahlers, JJ. 2
SCHUMACHER, Judge.
Domnick Hogan seeks postconviction relief (PCR) from his conviction for
second-degree robbery. Hogan has not shown he received ineffective assistance
on his claim that defense counsel failed to inform him of the direct consequences
of his guilty plea. We affirm the district court’s decision denying his PCR
application.
I. Background Facts & Proceedings
Hogan was charged with first-degree robbery, in violation of Iowa Code
sections 711.1(1) and 711.2 (2018), a class “B” felony, and possession of a firearm
by a felon, in violation of section 724.26(1), a class “D” felony. If he was convicted
of both charges and the sentences were to be served consecutively, Hogan was
facing thirty years in prison.
Hogan entered into a plea agreement wherein he would plead guilty to a
reduced charge of second-degree robbery, a class “C” felony, and the charge of
possession of a firearm by a felon would be dismissed. The plea agreement
included the provision, “At sentencing, both parties will recommend a 10-year
prison sentence, with the imposition of the mandatory seven-year sentence.”
At the plea hearing, held on October 18, 2018, defense counsel set out the
terms of the plea agreement, including the provision that both parties would
recommend “the imposition of the seven years mandatory time.” The court
informed Hogan the sentencing recommendation in the plea agreement was not
binding on the court. The following exchange also occurred:
The Court: There are certain maximum and minimum penalties for the crime to which you’re pleading guilty, which I understand to be Robbery in the Second Degree. The following are 3
the maximum and minimum penalties imposed, as well as other possible consequences of your plea. The maximum sentence is up to ten years in the Iowa State Penitentiary. The maximum fine is $10,000, plus a 35 percent surcharge, plus court costs, and possible restitution, and also reimbursement to the State for any court-appointed attorney fees. The minimum penalties are you must serve at least between 50 and 70 percent of the maximum sentence—and, again, the maximum sentence is ten years—before you are eligible for parole or work release. There is a minimum $1000 fine, plus the surcharges, court costs, court-appointed attorney’s fees, and restitution I mentioned previously. That fine cannot be suspended. In addition, you are required to submit a DNA specimen or provide a DNA specimen. Do you understand the possible maximum and the required minimum penalties for the crime with which you are charged? Hogan: Yes, sir.
The court accepted Hogan’s guilty plea to second-degree robbery. On
December 3, 2018, Hogan was sentenced to a term of imprisonment not to exceed
ten years. The judgment entry stated, “The mandatory minimum sentence
pursuant to Iowa Code section 902.12 shall apply.”1 Hogan did not appeal his
conviction or sentence.
Hogan filed a PCR application on January 28, 2019. He claimed he
received ineffective assistance because defense counsel did not adequately
1 Section 902.12(4) provided: A person serving a sentence for a conviction for robbery in the second degree in violation of section 711.3 for a conviction that occurs on or after July 1, 2016, shall be denied parole or work release until the person has served between one-half and seven- tenths of the maximum term of the person’s sentence as determined under section 901.11, subsection 4. At the time Hogan was sentenced this was section 902.12(3) and it has since been renumbered. For convenience we refer to the current code number. The judgment entry did not specify the percentage of the total sentence Hogan should serve as a mandatory minimum sentence. On appeal, however, Hogan and the State agree Hogan must serve a mandatory minimum sentence of seven years. 4
inform him of the mandatory minimum sentence for second-degree robbery before
he pled guilty. He stated that if he had known he might be sentenced to fifty
percent of a ten-year sentence, which is five years, rather than seventy-percent,
which is seven years, he would not have pled guilty and would have insisted on
going to trial.
The district court denied Hogan’s PCR claims. The PCR court noted that
at the guilty plea proceedings, the court explained the mandatory minimum
sentence to Hogan, specifically stating, “you must serve at least between 50 and
70 percent of the maximum sentence.” Also, there is no indication the State would
have agreed to a plea agreement where the parties recommended a five-year
mandatory minimum rather than a seven-year mandatory minimum. The court
found Hogan failed to show he received ineffective assistance of counsel. Hogan
now appeals, claiming he received ineffective assistance of counsel.
II. Standard of Review
We conduct a de novo review of claims of ineffective assistance of counsel.
State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of
ineffective assistance of counsel, an applicant must prove: (1) counsel failed to
perform an essential duty and (2) the failure resulted in prejudice. State v. El-Amin,
952 N.W.2d 134, 138 (Iowa 2020). “We presume counsel performed competently
unless the claimant proves otherwise by a preponderance of the evidence.” State
v. Booth-Harris, 942 N.W.2d 562, 577 (Iowa 2020). When there has been a guilty
plea, to show prejudice an applicant must establish that “there is a reasonable
probability that, but for counsel’s error he or she would not have pleaded guilty and 5
would have insisted on going to trial.” Horton v. State, 966 N.W.2d 663, 666 (Iowa
Ct. App. 2021) (citation omitted).
III. Discussion
Hogan claims he received ineffective assistance because defense counsel
did not inform him about a direct consequence of his guilty plea. He states defense
counsel had a duty to inform him of the mandatory minimum sentence for second-
degree robbery, which under section 902.12(4) could be “between one-half and
seven-tenths of the maximum term of [his] sentence.” Hogan asserts that if he had
known he could receive fifty percent of a ten-year sentence, or five years, he would
not have agreed to the plea agreement that provided the parties would recommend
a mandatory minimum sentence of seven years.
A similar argument was raised in Williams v. State, where Maurice Williams
claimed defense counsel “was ineffective in informing him about the minimum
sentence on the robbery counts.” No. 15-0633, 2016 WL 5480736, at *1 (Iowa Ct.
App. Sept. 28, 2016). We determined, “Assuming without deciding counsel
provided incorrect information about the robbery sentences before Williams
decided to plead guilty, there is a reasonable probability Williams would still have
pled guilty because the district court gave him correct information about his
sentences during a detailed plea colloquy.” Id. at *2. We found that given the
court’s statements to Williams, he “would be hard-pressed to argue any
misinformation from counsel about the robbery sentences affected his decision to
plead guilty.” Id. We concluded Williams failed to establish that he was prejudiced
by defense counsel’s conduct and he did not show he received ineffective
assistance of counsel. Id. 6
As noted, during the plea colloquy, the district court informed Hogan, “The
minimum penalties are you must serve at least between 50 and 70 percent of the
maximum sentence—and, again, the maximum sentence is ten years—before you
are eligible for parole or work release.” Hogan responded, “Yes, sir,” when asked
“Do you understand the possible maximum and the required minimum penalties
for the crime with which you are charged?” As with Williams, we find Hogan “would
be hard-pressed to argue any misinformation from counsel about the . . . sentences
affected his decision to plead guilty.” See id.
We conclude Hogan has failed to show he was prejudiced by the conduct
of defense counsel, in that he has not shown “there is a reasonable probability
that, but for counsel’s error he . . . would not have pleaded guilty and would have
insisted on going to trial.” See Horton, 966 N.W.2d at 666. “If the claim lacks
prejudice, it can be decided on that ground alone without deciding whether the
attorney performed deficiently.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa
2001). Therefore, we do not address whether defense counsel breached an
essential duty.
We conclude Hogan has failed to show he received ineffective assistance
of counsel. We affirm the district court decision denying his PCR application.
AFFIRMED.