IN THE COURT OF APPEALS OF IOWA
No. 20-0732 Filed May 26, 2021
KELVIN LEE PLAIN JR., Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar, Judge.
The applicant appeals the denial of his postconviction relief. AFFIRMED.
Roger L. Sutton of Prichard Law Office, PC, Charles City, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Schumacher, P.J., Ahlers, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021). 2
BLANE, Senior Judge.
Kelvin Plain Jr. appeals the denial of his application for postconviction relief
(PCR) following Alford1 guilty pleas to possession of a controlled substance and
eluding. He contends trial counsel was ineffective in being unprepared for trial and
threatening to withdraw if Plain did not plead guilty. Next, he argues he was
coerced into pleading guilty when he did not want to. And, finally, he argues
counsel caused him to lose time served on prior criminal cases when she had the
parole revocation hearing continued until after he plead guilty to the current
charges. We affirm.
I. FACTS AND PRIOR PROCEEDINGS
In fall 2018, Plain made Alford guilty pleas to possession of a controlled
substance third or subsequent offense, in violation of Iowa Code section
124.401(5) (2018), and eluding while exceeding the speed limit by twenty-five
miles per hour or more, in violation of Iowa Code section 321.279(2). He was
sentenced to a prison term not to exceed five years on the possession charge and
one year for eluding, run concurrently. He did not appeal his convictions. But less
than a month after those pleas, he filed a pro se petition for PCR.
In an amended petition with assistance of PCR counsel, Plain raised the
following issues:
1. [Plain] did not want to plead to the eluding charge and counsel stated that she was not ready for trial and claimed that if she was made to go to trial she would withdraw as counsel whereupon defendant pled guilty to the charge. He claims that the eluding case was defensible as counsel had done investigation on probable cause and reason to stop issues.
1An Alford plea allows a defendant to enter a plea without an admission of guilt. See North Carolina v. Alford, 400 U.S. 25, 39 (1970). 3
2. [Plain] had been sitting in the jail on parole revocation charges in [the two prior felony cases] and counsel did not have a parole revocation hearing before disposition of the criminal cases. [Plain] claims that event caused him to have more time to serve or not receiving credit for time served. 3. [Plain] claims there was no factual basis for the possession of a controlled substance third offense case as there were four people in the vehicle and only two were charged. He denies that the state could prove beyond a reasonable doubt that he knowingly and intentionally possessed a controlled substance and exercised dominion or control over it.
The court held a hearing on the application. Plain and Donna Smith, Plain’s
criminal trial counsel, testified.
As to the first allegation, the court concluded, “There is no evidence that
Smith failed to perform an essential duty, in fact it appears that Smith was prepared
and ready to take the case to trial and at no time threatened to withdraw.” On the
parole revocation claim, the court found, “Smith acted reasonably and advised her
client accordingly.” And on the final claim, the court again found Plain did not
“prove that Smith failed to perform an essential duty.” On each point, the court
gave more weight and credit to Smith’s testimony, especially as it relates to Plain’s
claims Smith threatened to withdraw and he did not want to plead guilty. The court
pointed out “the inconsistency and lack of evidence in [Plain’s] testimony.” In
contrast, “Smith provided a detailed explanation of the timelines of events and her
strategy for Plain’s case” and also “an examination of the facts available to the
State at the time [of] trial that would allow the State to meet its burden under the
elements of the crime charged.” Because the court found Smith did not breach
any duty, it did not address whether Plain was prejudiced and denied the
application for PCR. Plain appeals. 4
II. SCOPE AND STANDARD OF REVIEW
“We typically review postconviction relief proceedings on error.” Ledezma
v. State, 626 N.W.2d 134, 141 (Iowa 2001). But we review constitutional issues,
such as ineffective assistance of counsel, de novo. See Linn v. State, 929 N.W.2d
717, 729 (Iowa 2019). To succeed in a claim of ineffective assistance of counsel,
the applicant must show by a preponderance of the evidence that “(1) trial counsel
failed to perform an essential duty and (2) this failure resulted in prejudice.” Id. at
730. We measure trial counsel’s performance by that of “a reasonably competent
practitioner.” Id. at 731 (citation omitted). “We presume counsel acted
competently, but that presumption is overcome if we determine the claimant has
proved by a preponderance of the evidence that counsel failed to perform an
essential duty.” Id. “We assess counsel’s performance objectively by determining
whether it was reasonable, under prevailing professional norms, considering all
the circumstances.” Id. (cleaned up).
Under the prejudice prong, Plain must show that “but for [Smith’s] ineffective
assistance, he . . . would not have pleaded guilty and would have insisted on going
to trial.” Morales Diaz v. State, 896 N.W.2d 723, 728 (Iowa 2017) (cleaned up). If
the proof is inadequate on either prong, the claim fails. State v. Thorndike, 860
N.W.2d 316, 320 (Iowa 2015). “[W]e give weight to the lower court’s findings
concerning witness credibility.” Ledezma, 626 N.W.2d at 141. 5
III. ANALYSIS
We pause to clarify the issues on appeal. We note the headings on Plain’s
appeal issues do not match the substance of the arguments. We address the
claims preserved and argued, not the headings.
A. Threat to Withdraw
Plain first contends he was given ineffective assistance of counsel because
Smith threatened to withdraw if he did not accept the plea deal. At the PCR
hearing, Plain testified Smith “wasn’t ready” for trial. He testified she said, “Like if
you force me to go to trial, I will withdraw from the case because I am not ready to
go.” He also testified she said he “was going to be without a lawyer, and this was
the day before the trial was going to start that Tuesday.” This was the only
evidence Plain offered of his version of the events. On cross-examination, he
admitted he requested Smith be appointed to represent him because he was
familiar with her through other proceedings. He also agreed he filed many letters
with the court during the period he was in jail awaiting trial on these charges. While
he raised a plethora of complaints about the process, he never complained about
or criticized Smith’s performance.
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IN THE COURT OF APPEALS OF IOWA
No. 20-0732 Filed May 26, 2021
KELVIN LEE PLAIN JR., Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar, Judge.
The applicant appeals the denial of his postconviction relief. AFFIRMED.
Roger L. Sutton of Prichard Law Office, PC, Charles City, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Schumacher, P.J., Ahlers, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021). 2
BLANE, Senior Judge.
Kelvin Plain Jr. appeals the denial of his application for postconviction relief
(PCR) following Alford1 guilty pleas to possession of a controlled substance and
eluding. He contends trial counsel was ineffective in being unprepared for trial and
threatening to withdraw if Plain did not plead guilty. Next, he argues he was
coerced into pleading guilty when he did not want to. And, finally, he argues
counsel caused him to lose time served on prior criminal cases when she had the
parole revocation hearing continued until after he plead guilty to the current
charges. We affirm.
I. FACTS AND PRIOR PROCEEDINGS
In fall 2018, Plain made Alford guilty pleas to possession of a controlled
substance third or subsequent offense, in violation of Iowa Code section
124.401(5) (2018), and eluding while exceeding the speed limit by twenty-five
miles per hour or more, in violation of Iowa Code section 321.279(2). He was
sentenced to a prison term not to exceed five years on the possession charge and
one year for eluding, run concurrently. He did not appeal his convictions. But less
than a month after those pleas, he filed a pro se petition for PCR.
In an amended petition with assistance of PCR counsel, Plain raised the
following issues:
1. [Plain] did not want to plead to the eluding charge and counsel stated that she was not ready for trial and claimed that if she was made to go to trial she would withdraw as counsel whereupon defendant pled guilty to the charge. He claims that the eluding case was defensible as counsel had done investigation on probable cause and reason to stop issues.
1An Alford plea allows a defendant to enter a plea without an admission of guilt. See North Carolina v. Alford, 400 U.S. 25, 39 (1970). 3
2. [Plain] had been sitting in the jail on parole revocation charges in [the two prior felony cases] and counsel did not have a parole revocation hearing before disposition of the criminal cases. [Plain] claims that event caused him to have more time to serve or not receiving credit for time served. 3. [Plain] claims there was no factual basis for the possession of a controlled substance third offense case as there were four people in the vehicle and only two were charged. He denies that the state could prove beyond a reasonable doubt that he knowingly and intentionally possessed a controlled substance and exercised dominion or control over it.
The court held a hearing on the application. Plain and Donna Smith, Plain’s
criminal trial counsel, testified.
As to the first allegation, the court concluded, “There is no evidence that
Smith failed to perform an essential duty, in fact it appears that Smith was prepared
and ready to take the case to trial and at no time threatened to withdraw.” On the
parole revocation claim, the court found, “Smith acted reasonably and advised her
client accordingly.” And on the final claim, the court again found Plain did not
“prove that Smith failed to perform an essential duty.” On each point, the court
gave more weight and credit to Smith’s testimony, especially as it relates to Plain’s
claims Smith threatened to withdraw and he did not want to plead guilty. The court
pointed out “the inconsistency and lack of evidence in [Plain’s] testimony.” In
contrast, “Smith provided a detailed explanation of the timelines of events and her
strategy for Plain’s case” and also “an examination of the facts available to the
State at the time [of] trial that would allow the State to meet its burden under the
elements of the crime charged.” Because the court found Smith did not breach
any duty, it did not address whether Plain was prejudiced and denied the
application for PCR. Plain appeals. 4
II. SCOPE AND STANDARD OF REVIEW
“We typically review postconviction relief proceedings on error.” Ledezma
v. State, 626 N.W.2d 134, 141 (Iowa 2001). But we review constitutional issues,
such as ineffective assistance of counsel, de novo. See Linn v. State, 929 N.W.2d
717, 729 (Iowa 2019). To succeed in a claim of ineffective assistance of counsel,
the applicant must show by a preponderance of the evidence that “(1) trial counsel
failed to perform an essential duty and (2) this failure resulted in prejudice.” Id. at
730. We measure trial counsel’s performance by that of “a reasonably competent
practitioner.” Id. at 731 (citation omitted). “We presume counsel acted
competently, but that presumption is overcome if we determine the claimant has
proved by a preponderance of the evidence that counsel failed to perform an
essential duty.” Id. “We assess counsel’s performance objectively by determining
whether it was reasonable, under prevailing professional norms, considering all
the circumstances.” Id. (cleaned up).
Under the prejudice prong, Plain must show that “but for [Smith’s] ineffective
assistance, he . . . would not have pleaded guilty and would have insisted on going
to trial.” Morales Diaz v. State, 896 N.W.2d 723, 728 (Iowa 2017) (cleaned up). If
the proof is inadequate on either prong, the claim fails. State v. Thorndike, 860
N.W.2d 316, 320 (Iowa 2015). “[W]e give weight to the lower court’s findings
concerning witness credibility.” Ledezma, 626 N.W.2d at 141. 5
III. ANALYSIS
We pause to clarify the issues on appeal. We note the headings on Plain’s
appeal issues do not match the substance of the arguments. We address the
claims preserved and argued, not the headings.
A. Threat to Withdraw
Plain first contends he was given ineffective assistance of counsel because
Smith threatened to withdraw if he did not accept the plea deal. At the PCR
hearing, Plain testified Smith “wasn’t ready” for trial. He testified she said, “Like if
you force me to go to trial, I will withdraw from the case because I am not ready to
go.” He also testified she said he “was going to be without a lawyer, and this was
the day before the trial was going to start that Tuesday.” This was the only
evidence Plain offered of his version of the events. On cross-examination, he
admitted he requested Smith be appointed to represent him because he was
familiar with her through other proceedings. He also agreed he filed many letters
with the court during the period he was in jail awaiting trial on these charges. While
he raised a plethora of complaints about the process, he never complained about
or criticized Smith’s performance. And in his statement of allocution, he thanked
Smith for her representation.
Smith testified that the alleged threat to withdraw did not happen. She first
clarified that the plea was not entered on the day before trial. The plea occurred
on Monday, October 22, and the trial was not set until October 30, eight days later.
The record confirms those dates. She said she was prepared to go to trial, but
wanted to complete one deposition—Plain’s fiancée. She also said that Plain
came up with the plea terms, she offered them to the county attorney, and the 6
county attorney accepted. She said she discussed the merits of the case with
Plain extensively, including going over all the filings, the videos, and other
evidence. They discussed the options available, including going to trial, where
Smith thought the eluding case was “triable.” Plain discussed the options with his
fiancée and wanted to proceed with the plea. During the plea colloquy, Plain never
expressed hesitation at taking the plea or dissatisfaction with Smith’s performance.
The court, crediting Smith’s testimony, found she did not breach a duty.
Plain complains that the court reached its conclusion based on Smith’s
testimony only and did not consider Plain’s. And while the court did not make
explicit findings that Smith was more credible, that is the upshot of the court’s
ruling.2 The court found Plain was unable to prove his claims “due to the
inconsistency and lack of evidence in his testimony.” Further, “we give weight to
the lower court’s findings concerning witness credibility.” Ledezma, 626 N.W.2d
at 141. This is “due to [the court’s] opportunity to assess” the witnesses firsthand.
In re Pardee, 872 N.W.2d 384, 390 (Iowa 2015). “[B]ut we are not bound by those
findings.” Id. Plain also complains “[t]here was no evidence that . . . Smith was
competent.” But it is fundamental in ineffective-assistance-of-counsel claims that
counsel is presumptively competent, and it is the applicant’s burden to show she
was not. See Thorndike, 860 N.W.2d at 320; see also Strickland v. Washington,
466 U.S. 668, 689 (1984) (“[A] court must indulge a strong presumption that
2 During the PCR hearing, Plain admitted to at least five prior felony convictions, one of which was for perjury. See Iowa R. Evid. 5.609 (felony convictions are admissible on issue of witness credibility). 7
counsel’s conduct falls within the wide range of reasonable professional
assistance.”).
On our review of the transcript and record, we agree with the PCR court
that Smith offered extensive detail and explanation of the work she performed for
Plain and credibly testified the alleged conversation and threat to withdraw did not
happen. In contrast, Plain was evasive in his testimony and could not recall much
detail about his claims. His only evidence of the alleged conversation was his
testimony. All the representations he made to the court during his plea colloquy
were that he was happy with Smith’s representation. It also appears from the
investigation Smith completed that she was prepared to take the eluding case to
trial but that Plain insisted on making the plea. The PCR court found Plain failed
to demonstrate Smith performed inadequately in the lead-up to the plea hearing,
and relying on both the court’s credibility determinations and our independent
review of the record, we agree. Plain has not shown Smith made the alleged threat
so as to have breached a duty.
B. Voluntariness of Plea
The gist of Plain’s second contention is that he did not want to plead guilty
and Smith was ineffective by forcing him to do so. He complains again that the
court accepted Smith’s testimony over his on this subject. A plea is valid only if it
is given “voluntarily, knowingly, and intelligently.” State v. Meron, 675 N.W.2d 537,
542 (Iowa 2004). Plain admits he proposed the plea agreement but insisted he
wanted to have a trial and “was convinced by his attorney to go forward with his
plea.” He claims, “At the time, Plain felt he had no choice but a plea . . . .” 8
Plain’s representations on appeal contradict Smith’s credible evidence at
the hearing that she was ready to take the case to trial, but he preferred to take
the plea deal. They also contradict the statements in his written and on-the-record
Alford guilty pleas that he was making his plea voluntarily. At the hearing, he
testified, “I felt threatened. . . . A lot of people plead guilty when they know they
didn’t—I didn’t do it.” But the overall record, especially the plea transcript, supports
the conclusion Plain pleaded guilty voluntarily. Plain told the plea court he was not
being threatened, forced, or pressured to plead guilty. He also said he was happy
with Smith’s representation. Except for the alleged withdrawal threat, Plain does
not explain how he was threatened other than by the circumstances of facing the
charges and choosing a course of action with which he is now unhappy. Smith
testified Plain received a favorable agreement, based on his own proposal, and he
chose to accept it after a discussion with his fiancé. Smith testified,
[H]e basically said I want—me and my family, including [my fiancée], we want to get this over with and move on. And I—he was telling me he was expecting a very short stay in prison, that he could be back in the community before we could get to trial he even said.
We conclude Plain made his plea voluntarily and Smith did not breach a duty.
C. Parole Revocation Hearing
Plain’s next contention is that by pleading guilty, he lost “credit for time
served since he remained incarcerated waiting for disposition” on his pending
criminal cases. He faults Smith for this oversight. But Smith explained that the
prosecutor told her Plain’s parole would be revoked on the prior cases due to a
positive drug test and reports that Plain was hanging out with gang members in
violation of his parole terms. So the guilty plea had no bearing on the decision to 9
revoke parole on the prior cases. Smith also testified Plain wanted to delay the
parole revocation hearing until these charges were resolved. We find Smith acted
reasonably under the circumstances, so Plain has not shown she breached a duty.
IV. CONCLUSION
We find Plain has not carried his burden to show Smith threatened to
withdraw, forced him to enter the guilty pleas, or caused him to lose time served
on his parole revocation and thus failed to prove she breached any essential duty.
We need not address the prejudice prong of the ineffective-assistance-of-counsel
test.3 Therefore, we affirm the denial of postconviction relief.
AFFIRMED.
3 Plain’s brief is full of other comments and complaints, some of which are too incoherent to understand. Others are plainly not preserved. See Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). All are too underdeveloped to address. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed waiver of that issue.”); see also Soo Line R.R. Co. v. Iowa Dep’t of Transp., 521 N.W.2d 685, 691 (Iowa 1994) (“[Litigant’s] random mention of this issue, without elaboration or supportive authority, is insufficient to raise the issue for our consideration.”).