GARY KIRCHNER vs. STATE OF IOWA
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IN THE SUPREME COURT OF IOWA
No. 85 / 07–0566
Filed September 19, 2008
GARY KIRCHNER,
Appellant,
vs.
STATE OF IOWA,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Ida County, James D.
Scott, Judge.
On further review of a decision of the court of appeals, a postconviction relief applicant challenges the denial of his ineffectiveassistance-of-counsel claim. AFFIRMED.
Martha M. McMinn, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson and
Robert P. Ewald, Assistant Attorneys General, and Kristal L. Phillips,
County Attorney, for appellee.
2
HECHT, Justice.
This case presents a question of whether an attorney provided
ineffective assistance to a client who rejected the State’s offer of a plea
bargain in a class “A” felony case. We conclude the district court and the
court of appeals correctly concluded the client failed to prove he suffered
prejudice as a consequence of his attorney’s advice, and therefore affirm
the denial of the request for post-conviction relief.
I.
Factual and Procedural Background.
In late 1996 Gary Kirchner was charged with two counts of firstdegree burglary, criminal mischief, domestic abuse assault, and firstdegree kidnapping.
The charges resulted from an incident in which
Kirchner transported his estranged wife to remote areas, beat her with a
tire iron, and otherwise physically and sexually abused her. The firstdegree kidnapping charge carried a mandatory life sentence without
parole. Iowa Code §§ 710.2, 902.1 (1995).
Prior to trial, the county attorney sent a letter to Kirchner’s defense
attorney, Gregory Jones, detailing an offer for Kirchner to plead guilty to
one count of second-degree kidnapping, one count of second-degree
burglary, and one count of third-degree sexual abuse.
provided for a twenty-five year prison sentence.
The plea offer
The county attorney
acknowledged in the letter that his “prior experience with Mr. Kirchner
suggests that he will not reasonably consider any plea proposal short of a
dismissal.” Jones forwarded the offer to Kirchner, who was out on bail,
and asked Kirchner to meet him at the Ida County courthouse to discuss
the offer. Kirchner did not show up for the meeting.
Jones’s investigator later located Kirchner at Kirchner’s parents’
home in Correctionville. When the investigator communicated the offer
to him, Kirchner replied, “[F]uck that anyway, I am not taking any plea
3
offer.”
When Jones later discussed the possibility of a plea deal with
Kirchner prior to trial, Jones encouraged Kirchner to accept the twentyfive-year offer. Kirchner flatly rejected the offer and the case proceeded
to trial in October 1997.
During the early stages of the trial, Kirchner exhibited bizarre
behavior. He threatened his wife upon the completion of her testimony,
became very agitated, and intermittently fell asleep.
This conduct led
Jones to request a mistrial on the ground Kirchner was mentally unfit to
continue. A mistrial was ordered after Kirchner was found incompetent
to stand trial as a consequence of psychosis related to chronic
methamphetamine
use.
Kirchner
was
found
to
have
regained
competency, however, approximately one month later.
Prior to the commencement of Kirchner’s trial in January 1998,
the State informally offered to allow Kirchner to plead to “just about
anything” that would result in a prison term, including a class “D” felony.
Kirchner again rejected the offer and the case proceeded to trial.1 Before
the trial began the district court held an ex parte hearing regarding
Kirchner’s request for a new attorney.
During the hearing, Kirchner
repeatedly accused Jones of working with the prosecutor and others
against him and professed his innocence of the charges.
The court
ultimately denied Kirchner’s request for a new attorney. The jury found
Kirchner guilty on all counts. Because he was found guilty of the firstdegree kidnapping charge, Kirchner was sentenced to life in prison
without the possibility of parole.
The court of appeals affirmed the
convictions on direct appeal. State v. Kirchner, 600 N.W.2d 330 (Iowa Ct.
App. 1999).
1Kirchner’s ineffective-assistance-of-counsel claim relates only to trial counsel’s
advice in connection with the twenty-five-year plea offer.
4
Kirchner filed a post-conviction-relief action, contending trial
counsel rendered ineffective assistance by erroneously advising him as to
the strength of the State’s case on the kidnapping charge, and asserting
counsel’s erroneous advice caused him to reject the twenty-five-year plea
offer. Kirchner testified Jones informed him the case was circumstantial
and that Jones believed they could prevail. Kirchner also presented the
deposition testimony of his sisters, Michelle Kline and Debra Sundene,
and his mother, Thelma Kirchner.
Michelle, Debra, and Thelma were
present on some occasions when Kirchner met with Jones before trial.
Each of these witnesses testified Jones stated the State’s case was not
very strong because there were no fingerprints linking Kirchner to the
crime scenes and the case was otherwise based on circumstantial
evidence.
Jones offered the following recollection of his advice to Kirchner
regarding the relative strength of the State’s evidence on the charges:
The kidnapping was what I believed before both trials was
the weakest of the State’s claims, and that was largely
because of the facts that I thought might support the fact
that this woman was voluntarily with her husband, but –
and I may have suggested that to them, that that might be
the weaker part of it.
Despite his assessment that the State’s case on the kidnapping charge
was perhaps less strong than the evidence supporting the other charges,
Jones believed Kirchner’s wife was a good and credible witness, and he
advised Kirchner to accept the plea offer calling for a prison sentence of
twenty-five years. Kirchner does not deny he was advised by counsel to
accept the State’s plea offer.
The district court denied Kirchner’s claim for post-conviction relief,
finding
“Jones
clearly
informed
Kirchner
of
the
strengths
and
5
weaknesses of the State’s case.” The district court also found Kirchner
failed
to
demonstrate
erroneous advice.
prejudice
resulting
from
Jones’s
allegedly
Kirchner appealed from the district court’s adverse
post-conviction ruling, and we transferred the matter to the court of
appeals for decision.
The court of appeals did not address whether Jones breached a
duty owed to Kirchner, but it affirmed the district court’s conclusion
Kirchner failed to demonstrate prejudice resulting from any claimed
breach of duty owed by Jones to Kirchner. Kirchner v. State, 2007 WL
4197129 at *2–3 (Iowa Ct. App. Nov. 29, 2007).
We granted further
review.
II.
Scope of Review.
We review ineffective-assistance-of-counsel claims de novo. State
v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008). To establish an ineffectiveassistance-of-counsel claim, an applicant must demonstrate by a
preponderance of the evidence “(1) his trial counsel failed to perform an
essential duty, and (2) this failure resulted in prejudice.” State v. Straw,
709 N.W.2d 128, 133 (Iowa 2006).
“The court need not address both
components if the [applicant] makes an insufficient showing on one of
the prongs.” Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995);
State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999) (noting we may affirm the
rejection of an ineffective-assistance-of-counsel claim if either element is
lacking).
The two-pronged analysis applies to ineffective-assistance
claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57,
106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 209 (1985) (quoting Strickland v.
Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2065, 2068, 80
L. Ed. 2d 674, 694, 698 (1984)); Straw, 709 N.W.2d at 135–36.
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III.
Discussion.
A.
Applicable Legal Standard. The district court and the court
of appeals applied a subjective standard in the determination of whether
Kirchner met his burden to prove by a preponderance of the evidence
that he would have accepted the plea deal if he had been properly
advised by his counsel. Kirchner urges us to conclude prejudice must
instead be measured by an objective standard—whether a reasonable
person would have accepted or rejected the plea offer if correctly advised
by defense counsel.
The Supreme Court first held the two-part Strickland test applied
to claims of ineffective assistance arising out of the plea process in Hill v.
Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203. In Hill, the
Court stated the prejudice inquiry “focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea
process.” Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d. at 210. Strickland
requires an ineffective-assistance-of-counsel claimant to demonstrate
actual prejudice.
Strickland, 466 U.S. at 693, 104 S. Ct. at 2067, 80
L. Ed. 2d at 696.
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.” Engelen, 68 F.3d at
241.
The applicant “must present some credible, non-conclusory
evidence that he would have pled guilty had he been properly advised.”
Id.
We conclude the objective standard proposed by Kirchner for the
measurement of prejudice would undermine Strickland’s requirement
that the applicant demonstrate counsel’s unprofessional errors “actually
had an adverse effect on the defense.” Strickland, 466 U.S. at 693, 104
7
S. Ct. at 2067, 80 L. Ed. 2d at 696 (emphasis added). It would allow a
defendant who claimed innocence and flatly rejected all advice of his
counsel to accept a reasonable plea bargain to nonetheless claim the
benefit of what a reasonable person would have done under the
circumstances.
Our rejection of the proposed objective standard is
consistent with the court’s analysis in Hill.
In that case the Court
rejected the habeas petitioner’s claim because he failed to allege that had
counsel’s advice on the plea offer been accurate, his decision regarding
whether to accept the plea offer would have been different. Hill, 474 U.S.
at 60, 106 S. Ct. at 371, 88 L. Ed. 2d at 210. The Court did not consider
whether,
assuming
accurate
advice
from
counsel,
defendant” would have accepted the plea offer.
a
“reasonable
Instead, it looked to
whether the petitioner had alleged “special circumstances that might
support the conclusion that he placed particular emphasis” on the
erroneous advice.
Id.
Our reading of Hill and the decisions of other
courts who have addressed this issue finds no support for the
application of an objective standard. See, e.g., Wanatee v. Ault, 259 F.3d
700, 704 (8th Cir. 2001) (“Wanatee II”); Engelen, 68 F.3d at 241 (stating a
petitioner must present some “credible, non-conclusory evidence that he
would have pled guilty had he been properly advised” to command an
evidentiary hearing).
Kirchner cites only one judicial decision adopting an objective
standard such as he proposes, Wanatee v. Ault, 101 F. Supp. 2d 1189
(N.D. Iowa 2000) (“Wanatee I”). On direct appeal in that case, however,
the Eighth Circuit Court of Appeals expressly disavowed the district
court’s purported application of an objective prejudice standard.
We recognize that the district court purported to apply an
“objective” standard in analyzing whether Wanatee would
have accepted the plea offer had he been properly advised.
8
Although we think that the inquiry into what Wanatee would
have done under different circumstances is necessarily
subjective, we believe it is clear from the district court’s
opinion that the court actually applied a subjective analysis.
Wanatee II, 259 F.3d at 704. The court’s conclusion in Wanatee II the
proper standard was a subjective one was consistent with its earlier
statement in Engelen that the claimant “must show that, but for
counsel’s advice, he would have accepted the plea.” Engelen, 68 F.3d at
241 (emphasis added). Accordingly, we hold a subjective standard for
the measurement of prejudice shall be applied in the determination of
whether a defendant would have accepted a plea offer and received a
lesser sentence but for the ineffective assistance of counsel.
B.
Analysis. We now turn to the question of whether Kirchner
is entitled to relief under the applicable subjective standard. The thrust
of Kirchner’s ineffective-assistance argument is that counsel’s allegedly
erroneous advice made the twenty-five-year plea offer appear far less
advantageous than it actually was, and induced Kirchner to reject it. On
de novo review, we reject Kirchner’s claim that Jones misrepresented the
strength of the State’s case on the kidnapping charge by characterizing it
as “weak.” We find the assessment of the State’s case provided by Jones
to Kirchner merely communicated Jones’s professional opinion that the
evidence supporting the kidnapping charge was less compelling than the
evidence supporting the other charges. Jones did not believe the State’s
kidnapping case was weak, and he did not advise Kirchner to go to trial
on that or any other charge. Our finding on this point is supported by
the uncontroverted evidence that Jones advised Kirchner to accept
(1) the plea offer that would have resulted in a prison sentence of twentyfive years, and (2) the prosecutor’s subsequent informal proposal
contemplating a plea to a class “D” felony.
Jones gave this advice
9
because he believed the evidence supported Kirchner’s conviction on the
serious charges including first-degree kidnapping.
Kirchner offered no evidence to support his self-serving statement
that he would have accepted the plea deal had he known the great
likelihood of his conviction of first-degree kidnapping. Wanatee I, 101
F. Supp. 2d at 1204 (stating ineffective-assistance claimant must make
prejudice showing with something more than self-serving statements).
Indeed, the only evidence in the record speaking to the likelihood of
Kirchner accepting the twenty-five-year plea offer overwhelmingly
establishes Kirchner would not have accepted it regardless of counsel’s
advice.
In making the plea offer, the assistant county attorney noted his
prior dealings with Kirchner led him to believe Kirchner was not likely to
reasonably consider or accept any plea offer.
The response made by
Kirchner to the proposal conformed to the prosecutor’s expectations.
After failing to show up at a scheduled meeting with Jones to discuss the
plea deal, Kirchner was located by Jones’s investigator.
Kirchner
immediately and summarily rejected the notion of taking any plea offer.
Kirchner again rebuffed the proposed plea bargain immediately prior to
trial when he rejected Jones’s advice to accept the twenty-five-year plea
offer.
Kirchner’s mother and sister testified Kirchner professed his
innocence of the charges when the plea deal was offered, and
unequivocally rejected the offer.
Kirchner’s own testimony establishes
that when he rejected the twenty-five-year plea offer, he believed Jones,
the judge, and the prosecutor were all “in cahoots” with one another.
Even after the first trial ended in a mistrial and Kirchner was found to
have regained competency to stand trial, he rejected Jones’s advice to
10
accept an offer of an even more advantageous plea bargain. The evidence
clearly establishes Kirchner was unwilling to plead guilty to any offense.
Each time he was approached with the prospect of a guilty plea, Kirchner
abruptly and boisterously rejected it, claiming he had committed no
crime.
Even when Jones advised him to take a plea offer that would
eliminate all risk of a life sentence and result in a prison term of up to
five years, Kirchner summarily rejected it on the ground that he was
guilty of no crime.
Our rejection of the objective standard for the
measurement of prejudice appropriately denies defendants like Kirchner,
who unreasonably deny guilt of any criminal offense, flatly reject all plea
offers, and take their chances on the outcome of a trial, the retroactive
conferral of the status of “reasonable defendants” and the opportunity for
a “do-over.” The record in this case provides no credible factual basis to
support a finding that Kirchner would have accepted the State’s plea
offer if Jones had characterized differently the likelihood of a conviction
on the first-degree kidnapping charge.
Accordingly, Kirchner has failed to demonstrate prejudice.
IV.
Conclusion.
The district court and the court of appeals correctly found Kirchner
failed to establish prejudice resulting from counsel’s allegedly erroneous
advice.
We therefore affirm the denial of Kirchner’s petition for post-
conviction relief.
AFFIRMED.
All justices concur except Streit and Baker, JJ., who take no part.
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