IN THE COURT OF APPEALS OF IOWA
No. 21-0878 Filed June 15, 2022
RYAN LAMAR BEARD JR., Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge.
An applicant appeals from the denial of his postconviction-relief application.
AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Greer and Ahlers, JJ. 2
GREER, Judge.
Ryan Beard was charged with three counts of first-degree robbery in August
2018. He signed a plea agreement, lowering the charges to second-degree
robbery. During the plea hearing, the State announced it would ask the court to
require Beard to serve at least seventy percent of his sentence before becoming
parole eligible, though both Beard’s trial counsel and the court noted the sentence
could be as low as a fifty percent mandatory minimum. See Iowa Code § 902.12(4)
(2018). At the later sentencing hearing, the State recommended concurrent
sentences—ten years each—with a seventy percent mandatory minimum. But,
Beard’s trial counsel agreed with the recommendation of seventy percent, citing
Beard’s wish to accept responsibility for his actions. The court, in its January 2019
sentencing colloquy, explained it had considered a fifty percent mandatory
minimum, but determined the seventy percent recommended by the attorneys was
appropriate. It also considered the defendant’s age, prior record, employment, and
family circumstances as laid out in the presentence investigation report. The court
gave Beard a chance to speak, at which time he voiced no objection.
Following his sentence, Beard applied for postconviction relief (PCR). At
the PCR hearing, Beard testified his attorney never discussed with him the
decision to agree with the State’s recommendation of a seventy percent mandatory
minimum, so Beard never agreed to such a plan. Beyond that, Beard argued his
trial counsel was ineffective for failing to argue sentencing considerations, such as
his young age, that might have swayed the court in favor of the lesser percentage.
Beard’s trial counsel told a different story in his deposition, which was part
of the evidence admitted by the PCR court. He testified his focus was on 3
increasing Beard’s chance to receive concurrent sentences, as well as impressing
on the sentencing court that Beard was cooperative and taking responsibility for
his actions. Trial counsel planned to wait nine months, giving Beard a chance to
get involved and show progress while in prison, in the hopes that he could then
seek the court’s reconsideration and have the sentence dropped to a fifty percent
mandatory minimum. Beard’s trial counsel also testified Beard knew about the
plan and agreed with the strategy. But after the sentencing, Beard refused a
meeting when his trial counsel came to visit.
The PCR court found trial counsel more credible, noting that Beard had not
spoken up in moments where the sentencing court had allowed him to do so and
never asked for time to speak to his trial counsel about why he was not seeking
the lower mandatory minimum. So the court took trial counsel at his word and
chalked up the choice to pursue the reconsideration route as a reasonable trial
strategy, not ineffective counsel. Beard’s PCR application was denied. He now
appeals.
While we typically review a district court’s denial of a PCR application for
correction of errors at law, we review an application asserting ineffective
assistance of counsel de novo because it is a constitutional claim. Sothman v.
State, 967 N.W.2d 512, 522 (Iowa 2021). To establish counsel was ineffective, an
applicant must prove both that (1) counsel failed to perform an essential duty and
(2) that failure prejudiced the applicant. Id. Failing to prove either prong is fatal to
the claim. State v. Majors, 940 N.W.2d 372, 391 (Iowa 2020). We are deferential
to, though not bound by, the credibility findings of the PCR court. Sothman, 967
N.W.2d at 522. 4
Beard argues that his trial counsel was ineffective for (1) failing to consult
with him about the sentencing strategy and (2) for not arguing for a fifty percent
mandatory minimum or presenting mitigating factors.
We need not delve too far into the first issue— finding the analysis of the
PCR court persuasive, we note it is more credible that Beard was consulted about
the strategy. Beard’s silence at sentencing over the agreement voiced by the State
and his trial counsel supports this finding.
As to the second issue, Beard cannot meet the first prong of the test.
Proving a breach for failing to perform an essential duty requires an applicant to
show their attorney’s performance fell below the standard of a reasonably
competent attorney. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). There
is an initial presumption that an attorney performed competently. Id.
“Miscalculated trial strategies and mere mistakes in judgment normally do not rise
to the level of ineffective assistance of counsel,” so “claims of ineffective
assistance involving tactical or strategic decisions of counsel must be examined in
light of all the circumstances to ascertain whether the actions were a product of
tactics or inattention to the responsibilities of an attorney guaranteed a defendant
under the Sixth Amendment.” Id. at 143. We find no evidence that trial counsel’s
decision to agree to the seventy percent mandatory minimum was based on
inattention rather than legal strategy. Because Beard refused further contact with
his trial counsel, the strategy did not play out, but the success of the strategy is not
the standard. See Anfinson v. State, 758 N.W.2d 496, 501 (Iowa 2008) (“The
[PCR] court must not ‘assume the role of Monday morning quarterback in
condemning counsel’s judgment in choosing between what are frequently equally 5
hazardous options available to [them].’ The real issue is not whether defense
counsel’s actions were successful, but whether they were ‘justifiable.’” (internal
citations omitted)).
Because we find no breach of an essential duty, we affirm the PCR court’s
denial of Beard’s PCR application.
Ahlers, J., concurs; Tabor, P.J., concurs specially. 6
TABOR, Judge. (specially concurring)
Like the majority, I would affirm the denial of postconviction relief. But I
would do so on the prejudice prong of Strickland v. Washington, 466 U.S. 668, 686
(1984). Unlike the majority, I do not believe that trial counsel pursued a reasonable
strategy in waiting to “ask for a reconsideration” of the seventy-percent mandatory
minimum sentence after Beard had served nine months in prison rather than
seeking a fifty-percent mandatory minimum “at the time of sentencing” as provided
in Iowa Code section 901.11(4) (2018).
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IN THE COURT OF APPEALS OF IOWA
No. 21-0878 Filed June 15, 2022
RYAN LAMAR BEARD JR., Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge.
An applicant appeals from the denial of his postconviction-relief application.
AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Greer and Ahlers, JJ. 2
GREER, Judge.
Ryan Beard was charged with three counts of first-degree robbery in August
2018. He signed a plea agreement, lowering the charges to second-degree
robbery. During the plea hearing, the State announced it would ask the court to
require Beard to serve at least seventy percent of his sentence before becoming
parole eligible, though both Beard’s trial counsel and the court noted the sentence
could be as low as a fifty percent mandatory minimum. See Iowa Code § 902.12(4)
(2018). At the later sentencing hearing, the State recommended concurrent
sentences—ten years each—with a seventy percent mandatory minimum. But,
Beard’s trial counsel agreed with the recommendation of seventy percent, citing
Beard’s wish to accept responsibility for his actions. The court, in its January 2019
sentencing colloquy, explained it had considered a fifty percent mandatory
minimum, but determined the seventy percent recommended by the attorneys was
appropriate. It also considered the defendant’s age, prior record, employment, and
family circumstances as laid out in the presentence investigation report. The court
gave Beard a chance to speak, at which time he voiced no objection.
Following his sentence, Beard applied for postconviction relief (PCR). At
the PCR hearing, Beard testified his attorney never discussed with him the
decision to agree with the State’s recommendation of a seventy percent mandatory
minimum, so Beard never agreed to such a plan. Beyond that, Beard argued his
trial counsel was ineffective for failing to argue sentencing considerations, such as
his young age, that might have swayed the court in favor of the lesser percentage.
Beard’s trial counsel told a different story in his deposition, which was part
of the evidence admitted by the PCR court. He testified his focus was on 3
increasing Beard’s chance to receive concurrent sentences, as well as impressing
on the sentencing court that Beard was cooperative and taking responsibility for
his actions. Trial counsel planned to wait nine months, giving Beard a chance to
get involved and show progress while in prison, in the hopes that he could then
seek the court’s reconsideration and have the sentence dropped to a fifty percent
mandatory minimum. Beard’s trial counsel also testified Beard knew about the
plan and agreed with the strategy. But after the sentencing, Beard refused a
meeting when his trial counsel came to visit.
The PCR court found trial counsel more credible, noting that Beard had not
spoken up in moments where the sentencing court had allowed him to do so and
never asked for time to speak to his trial counsel about why he was not seeking
the lower mandatory minimum. So the court took trial counsel at his word and
chalked up the choice to pursue the reconsideration route as a reasonable trial
strategy, not ineffective counsel. Beard’s PCR application was denied. He now
appeals.
While we typically review a district court’s denial of a PCR application for
correction of errors at law, we review an application asserting ineffective
assistance of counsel de novo because it is a constitutional claim. Sothman v.
State, 967 N.W.2d 512, 522 (Iowa 2021). To establish counsel was ineffective, an
applicant must prove both that (1) counsel failed to perform an essential duty and
(2) that failure prejudiced the applicant. Id. Failing to prove either prong is fatal to
the claim. State v. Majors, 940 N.W.2d 372, 391 (Iowa 2020). We are deferential
to, though not bound by, the credibility findings of the PCR court. Sothman, 967
N.W.2d at 522. 4
Beard argues that his trial counsel was ineffective for (1) failing to consult
with him about the sentencing strategy and (2) for not arguing for a fifty percent
mandatory minimum or presenting mitigating factors.
We need not delve too far into the first issue— finding the analysis of the
PCR court persuasive, we note it is more credible that Beard was consulted about
the strategy. Beard’s silence at sentencing over the agreement voiced by the State
and his trial counsel supports this finding.
As to the second issue, Beard cannot meet the first prong of the test.
Proving a breach for failing to perform an essential duty requires an applicant to
show their attorney’s performance fell below the standard of a reasonably
competent attorney. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). There
is an initial presumption that an attorney performed competently. Id.
“Miscalculated trial strategies and mere mistakes in judgment normally do not rise
to the level of ineffective assistance of counsel,” so “claims of ineffective
assistance involving tactical or strategic decisions of counsel must be examined in
light of all the circumstances to ascertain whether the actions were a product of
tactics or inattention to the responsibilities of an attorney guaranteed a defendant
under the Sixth Amendment.” Id. at 143. We find no evidence that trial counsel’s
decision to agree to the seventy percent mandatory minimum was based on
inattention rather than legal strategy. Because Beard refused further contact with
his trial counsel, the strategy did not play out, but the success of the strategy is not
the standard. See Anfinson v. State, 758 N.W.2d 496, 501 (Iowa 2008) (“The
[PCR] court must not ‘assume the role of Monday morning quarterback in
condemning counsel’s judgment in choosing between what are frequently equally 5
hazardous options available to [them].’ The real issue is not whether defense
counsel’s actions were successful, but whether they were ‘justifiable.’” (internal
citations omitted)).
Because we find no breach of an essential duty, we affirm the PCR court’s
denial of Beard’s PCR application.
Ahlers, J., concurs; Tabor, P.J., concurs specially. 6
TABOR, Judge. (specially concurring)
Like the majority, I would affirm the denial of postconviction relief. But I
would do so on the prejudice prong of Strickland v. Washington, 466 U.S. 668, 686
(1984). Unlike the majority, I do not believe that trial counsel pursued a reasonable
strategy in waiting to “ask for a reconsideration” of the seventy-percent mandatory
minimum sentence after Beard had served nine months in prison rather than
seeking a fifty-percent mandatory minimum “at the time of sentencing” as provided
in Iowa Code section 901.11(4) (2018).
The district court decided trial counsel performed effectively by deciding to
“play it safe and save their evidence for a reconsideration hearing.” The majority
finds that analysis persuasive. I disagree. Reconsideration of a felon’s sentence
is governed by Iowa Code section 902.4, which states:
For a period of one year from the date when a person convicted of a felony, other than a class “A” or class “B” felony, begins to serve a sentence of confinement, the court, on its own motion or on the recommendation of the director of the Iowa department of corrections, may order the person to be returned to the court, at which time the court may review its previous action and reaffirm it or substitute for it any sentence permitted by law. Copies of the order to return the person to the court shall be provided to the attorney for the state, the defendant’s attorney, and the defendant. Upon a request of the attorney for the state, the defendant’s attorney, or the defendant if the defendant has no attorney, the court may, but is not required to, conduct a hearing on the issue of reconsideration of sentence . . . .
As our court has said: “There is no provision in the statute for the filing of
an application for reconsideration by the defendant, nor is there a provision
requiring the court to act on a defendant’s application.” State v. Dvorsky, 356
N.W.2d 609, 610 (Iowa Ct. App. 1984). It was unsound strategy for defense
counsel to bank on a reconsideration motion not contemplated by statute. 7
That said, Beard cannot show that but for his counsel’s omission, there was
“a reasonable probability that he would have received a more lenient sentence.”
State v. Olds, No. 11-1275, 2013 WL 100069, at *2 (Iowa Ct. App. Jan. 9, 2013)
(citing Glover v. United States, 531 U.S. 198, 202–04 (2001)). Beard accepted a
favorable plea agreement with significant sentencing concessions by the State. As
the State argues on appeal, “nothing but speculation” supports Beard’s contention
that he would have received a lesser mandatory minimum if his attorney had urged
that result.