GARY KIRCHNER, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-784 / 07-0566
Filed November 29, 2007
GARY KIRCHNER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Ida County, James D. Scott, Judge.
Applicant appeals following the district court’s denial of his application for
postconviction relief. AFFIRMED.
Martha M. McMinn, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney
General, and Kristal L. Phillips, County Attorney, for appellee State.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
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ZIMMER, J.
Gary Kirchner appeals following the district court’s denial of his application
for postconviction relief. He claims the district court erred in finding that his trial
counsel provided adequate advice regarding the State’s plea offer before his first
trial. He also claims the district court applied an incorrect standard of law in
finding he would not have accepted the plea offer. We affirm the judgment of the
district court.
In late 1996 Kirchner was charged with two counts of first-degree burglary,
criminal mischief, domestic abuse assault, and first-degree kidnapping. The
charges were based on allegations he transported his estranged wife, Melanie
Kirchner, to several remote areas, beat her with a tire iron, and otherwise
physically and sexually abused her. The first-degree kidnapping charge exposed
Kirchner to the possibility of life in prison.
See Iowa Code §§ 710.2, 902.1
(1995).
On June 2, 1997, the State sent a letter to Kirchner’s counsel, Gregory
Jones, offering to allow Kirchner to plead guilty to second-degree kidnapping,
second-degree burglary, and third-degree sexual assault and to recommend a
twenty-five year concurrent sentence. The county attorney prefaced the letter by
stating, “My prior experience with Mr. Kirchner suggests that he will not
reasonably consider any plea proposal short of a dismissal.” Jones forwarded
the letter to Kirchner, who was out on bail, and asked Kirchner to meet him at the
county courthouse on June 13 to discuss the plea offer. Kirchner did not show
up for the meeting. Jones “stopped at Mr. Kirchner’s house to see if [he] could
locate him in person and [he] wasn’t able to find anybody at home.” He also sent
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an investigator from his office to try to find Kirchner. The investigator eventually
located Kirchner on June 20 and communicated the plea offer to him. Kirchner
told the investigator, “[F]uck that anyway, I am not taking any plea offer.”
Jones discussed the plea offer with Kirchner before trial and encouraged
him to consider it “[a]lthough Mr. Kirchner had made it clear to [him] that he
wasn’t going to accept a plea offer.” Kirchner’s family also urged him to accept
the State’s offer, but he refused, stating, “‘No. I’m not guilty. I’m not doing it.’”
Kirchner ultimately rejected the plea offer, and the case proceeded to trial
on October 29, 1997. After the trial began, Kirchner was found incompetent to
stand trial due to “methamphetamine use at or around the time of the trial,” and a
mistrial was declared. Kirchner regained his competency about one month later,
and his case was rescheduled for trial commencing in January 1998. Shortly
before trial, the State informally told Jones it would “be willing to accept a plea to
just about anything,” even a Class D felony with a five-year sentence, “as long as
Mr. Kirchner would agree to go to prison.” Jones advised Kirchner of the State’s
offer, and he responded that “he didn’t do anything, and he wasn’t going to plead
to anything he didn’t do.”
After Kirchner again rejected a plea agreement, the case proceeded to
trial and the jury returned a guilty verdict on all counts. Kirchner was sentenced
to a mandatory life imprisonment term on the first-degree kidnapping charge with
all other sentences to run concurrently. He appealed, challenging the sufficiency
of the evidence, and the district court’s denial of his request for different courtappointed counsel. He also raised a variety of ineffective assistance of counsel
claims, which we preserved for possible postconviction relief proceedings. We
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rejected Kirchner’s other claims and affirmed his conviction. State v. Kirchner,
600 N.W.2d 330, 335 (Iowa Ct. App. 1999).
Kirchner subsequently filed an application for postconviction relief,
claiming in part that his trial counsel provided ineffective assistance because he
“failed to explain the benefits of the plea agreement made before the first trial
began and the risks of going to trial.” The district court denied the application for
postconviction relief finding, “Jones clearly informed Kirchner of the strengths
and weaknesses of the State’s case.” The court further found Kirchner “failed to
show that but for trial counsel’s alleged misadvice he would have accepted the
State’s plea agreement.”
Kirchner appeals. His appeal asserts ineffective assistance of counsel
only with respect to the twenty-five-year plea offer made prior to his first trial. He
makes no claim of ineffective assistance regarding the five-year plea offer made
prior to his second trial.
Postconviction proceedings are generally reviewed for correction of errors
at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when an
applicant raises issues of constitutional dimension, such as ineffective assistance
of counsel, our review is de novo. Id. We give weight to the district court’s
findings concerning witness credibility. Id.
The United States Supreme Court has long held that the standards
promulgated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674, 693 (1984), apply to ineffective assistance claims arising
out of the plea bargaining process. Wanatee v. Ault, 259 F.3d 700, 703 (8th Cir.
2001); see also State v. Kraus, 397 N.W.2d 671, 673 (Iowa 1986). Kirchner has
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the burden to establish by a preponderance of evidence that his counsel was
ineffective. Ledezma, 626 N.W.2d at 145. To prove ineffective assistance of
counsel, Kirchner must show his counsel failed to perform an essential duty and
prejudice resulted. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d
at 693. If Kirchner is unable to prove either the duty or the prejudice prong, his
ineffective assistance claim will fail. State v. Scalise, 660 N.W.2d 58, 62 (Iowa
2003).
Upon our de novo review of the record in this case, we find it unnecessary
to address Kirchner’s claim that his trial counsel offered deficient advice as to the
State’s plea offer before his first trial. We reach this conclusion because Kirchner
has failed to demonstrate prejudice.
The prejudice inquiry in plea bargain cases focuses on whether counsel’s
ineffective performance affected the outcome of the plea process. Wanatee, 259
F.3d at 703. A defendant who rejects a plea offer due to improper advice from
counsel may show prejudice under Strickland even though he ultimately received
a fair trial. Id. To show prejudice under such circumstances, the defendant
“must show that he would have accepted the plea but for counsel’s advice, and
that had he done so he would have received a lesser sentence.” Id. at 704.
“[T]he inquiry into what [the defendant] would have done under different
circumstances is necessarily subjective.” Id.; accord Engelen v. United States,
68 F.3d 238, 241 (8th Cir. 1995). We therefore reject Kirchner’s claim that the
district court incorrectly applied a subjective standard in determining whether he
established prejudice.
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Like the district court, we find that Kirchner did not establish he would
have accepted the State’s plea offer before his first trial but for counsel’s
allegedly deficient advice. Kirchner maintained his innocence throughout these
proceedings and categorically rejected the State’s plea offers because “he wasn’t
going to plead to anything that he didn’t do.” We also find it significant that the
State informally offered Kirchner a significantly more favorable plea bargain
before his second trial, which he rejected and is not challenging on appeal. We
agree with the district court’s finding “that irrespective of any alleged deficiencies
in trial counsel’s performance Kirchner refused to enter a plea of guilty to any
crime that would result in a prison term because he believed that he was
innocent of the charges.” See, e.g., Engelen, 68 F.2d at 241 (finding defendant
failed to prove he would have pled guilty if properly advised because he
continually asserted he was innocent).
Because we conclude Kirchner did not establish he was prejudiced by his
counsel’s allegedly inadequate advice regarding the State’s plea offer before his
first trial, we affirm the district court’s decision denying Kirchner’s application for
postconviction relief.
AFFIRMED.
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