Shawn William Durrell v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 23-1624
Filed July 24, 2024

SHAWN WILLIAM DURRELL,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeanie Vaudt, Judge.

An applicant appeals the denial of his application for postconviction relief.

AFFIRMED.

Alfredo Parrish of Parrish Kruidenier, L.L.P., Des Moines, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.

Considered by Tabor, P.J., and Greer and Schumacher, JJ.
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SCHUMACHER, Judge.

Shawn Durrell appeals the district court’s denial of his application for

postconviction relief (PCR). Durrell alleges that his counsel failed to inform him of

the collateral and direct consequences of his plea, failed to inform him that he was

not guaranteed a deferred judgment, and failed to negotiate a plea that ensured a

deferred judgment.

I. Background Facts and Prior Proceedings

Our court affirmed Durrell’s conviction on direct appeal. That opinion set

out these facts:

Durrell was an employee of the Iowa Department of
Corrections (DOC) at the women’s correctional facility at
Mitchellville. He was charged with sexual misconduct with an
offender, M.B., in violation of Iowa Code section 709.16(1) (2019),
an aggravated misdemeanor. The State alleged Durrell engaged in
a sex act with a woman who was in the custody of the DOC.
On January 30, 2020, Durrell signed a written plea agreement
in which he agreed to plead guilty to the charge. The plea agreement
stated,
Unless I commit a new crime, or violate a court order
the plea agreement is deferred judgment, 2 years
probation, $300.00 probation fee, $625.00 civil penalty,
court costs, sex offender registry.
The court is not bound by any plea agreement and may
give me the maximum sentence allowed by law,
including any enhanced sentence.
Durrell checked a box to show he gave up his right to have a
record made of the plea proceedings and sentencing. The court
accepted Durrell’s guilty plea. Durrell did not file a motion in arrest
of judgment.
Durrell was sentenced to two years in prison, the sentence
was suspended, and he was placed on probation for two years.
Durrell was ordered to pay a $625.00 civil penalty and a $625.00
surcharge.1 Durrell was also given a special sentence under section
903B.2 and required to register as a sex offender for a period of ten
years.

1 The sentencing order required that Durrell pay the fine of $625.00 and the civil

penalty of $625.00 along with assessed court costs and surcharges.
3

State v. Durrell, No. 20-0967, 2022 WL 108472, at *1 (Iowa Ct. App. Jan. 12, 2022).

II. Standard of Review

Although the denial of an application for PCR is usually reviewed for

correction of errors at law, we review claims of ineffective assistance of counsel

de novo. Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016).

III. Ineffective Assistance of Counsel

Durrell’s PCR action alleged ineffective assistance of counsel. The trial

court denied his application following an evidentiary hearing. On appeal, Durrell

asserts that his counsel failed to inform him of the direct and collateral

consequences of his plea, failed to inform him that he was not guaranteed a

deferred judgment, and failed to negotiate a Rule 2.10 plea.2

To prevail on an ineffective assistance of counsel claim, a defendant must

first show that his attorney’s performance was deficient. Strickland v. Washington,

466 U.S. 668, 687 (1984). Considering an attorney’s performance, we “must

indulge a strong presumption” that the conduct was reasonable, and “the

defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” Id. at 689 (internal

quotation marks omitted). In addition to showing that the counsel was deficient, a

“defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id.

2 Under Iowa Rule of Criminal Procedure 2.10, a plea may be conditioned on the

court’s acceptance. Iowa R. Crim. P. 2.10 (2020) (effective to June 30, 2023);
State v. Hanna, No. 17-2090, 2019 WL 320184, at *2 (Iowa Ct. App. Jan. 23, 2019).
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at 694. “Merely showing a conceivable effect is not enough; a reasonable

probability is one sufficient to undermine confidence in the outcome.” Worthington

v. Roper, 631 F.3d 487, 498 (8th Cir. 2011) (internal quotation marks omitted).

A. Direct and Collateral Consequences

The State contends that Durrell did not preserve error on his argument that

trial counsel failed to advise him on the direct and indirect consequences of his

plea, mainly that there would be a special sentence imposed under Iowa Code

chapter 903B.2. “It is a fundamental doctrine of appellate review that issues must

ordinarily be both raised and decided by the district court before we will decide

them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). However,

“[i]f the court’s ruling indicates that the court considered the issue and necessarily

ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’ the issue has

been preserved.” Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012).

Durrell’s counsel argued that Durrell was not advised of the consequences

of the plea, either direct or collateral. In the background section of the ruling, the

court stated that Durrell “further acknowledged that the collateral consequences of

the sex offender registry would apply to him regardless of whether he received a

deferred judgment,” and the court noted “[t]his included restrictions on movement,

registering during vacations, and other collateral issues.” This was the only time

the court mentioned collateral or direct consequences in its ruling.

“When a district court fails to rule on an issue properly raised by a party, the

party who raised the issue must file a motion requesting a ruling in order to

preserve error for appeal.” Meier, 641 N.W.2d at 537. And Durrell did that by

moving to reconsider: “Applicant respectfully requests that this Court expand its
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June 10, 2023, ruling to expressly address and resolve the issue of whether Trial

Counsel’s failure to advise applicant of the direct and collateral consequences of

the plea constituted ineffective assistance of counsel.” The court order issued

following the motion stated that the court “disagrees that Petitioner’s counsel was

obliged to inform Petitioner of the ramifications of his plea, because this was not a

Rule 2.10 plea.” We determine Durrell’s arguments on the direct and collateral

consequences were preserved for our review.

i. Direct Consequences

Counsel has a duty to inform the defendant of the direct consequences of

a plea. State v. Carney, 584 N.W.2d 907, 910 (Iowa 1998) (en banc) (per curiam).

Durrell argues that trial counsel failed to advise him of the sentencing

consequences of his plea, specifically the special sentence requirements under

Iowa Code section 903B.2. The 903B.2 special sentence is a direct consequence,

and a defendant has the right to be informed of it before their plea. Doss v. State,

961 N.W.2d 701, 710 (Iowa 2021).

Durrell’s argument concerning the direct consequences utilizes

photographs taken by trial counsel or staff of a whiteboard detailing the terms of

the plea agreement. In one whiteboard photo dated November 12, 2019, a “special

sentence” is listed as one of the consequences of his plea. In a whiteboard photo

dated January 9, 2020, the “special sentence” is not listed. Durrell argues this

indicates he was directly misled by trial counsel, asserting that as the plea

negotiations advanced, there was no longer a risk of a “special sentence.” But the

January 9 whiteboard specifically specifies it is for a “deferred judgment,” whereas

the November 12 whiteboard appears to be regarding the terms for a suspended
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sentence. We conclude Durrell has not demonstrated he was unaware that a

suspended sentence encompassed a special sentence. A special sentence

applies when a person is “convicted.” See Iowa Code § 903B.2.

Durrell also argues that trial counsel did not inform him that his plea would

require a submission of a DNA sample. See id. § 81.2(1). But Durrell’s signed

written plea of guilty states he would have to submit a DNA sample if he was

convicted of an aggravated misdemeanor. As expanded on below, Durrell was

aware of the possibility of a conviction, and he was aware he may have to submit

a DNA sample. Durrell was informed of the direct consequences that would apply

if he did not receive a deferred judgment. We determine there was no breach of

an essential duty by counsel.

ii. Collateral Consequences

Despite the duty to inform of direct consequences, “if the fallout from the

plea is collateral, counsel is generally not held to be ineffective for failing to inform

the defendant about it.” State v. Carney, 584 N.W.2d 907, 910 (Iowa 1998)

(cleaned up). In fact, “[t]he failure to advise a defendant concerning a collateral

consequence, even serious ones, cannot provide a basis for a claim of ineffective

assistance of counsel.” Id.

Durrell asserts trial counsel misinformed him on the collateral

consequences of his plea, including the impact a conviction would have on his

ability to travel and own firearms, and the treatment of an aggravated

misdemeanor as a felony in other jurisdictions. He argues this gives him a claim

related to collateral consequences. This is a correct statement of law. Stevens v.

State, 513 N.W.2d 727, 728 (Iowa 1994) (“The rule is well established that defense
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counsel does not have a duty to inform a defendant about the collateral

consequences of a guilty plea, but commits reversible error if counsel misinforms

the defendant as to these consequences.”). To this end, “[i]f the subject of the

misinformation is of substantial importance to the defendant and is considered by

him in deciding to plead guilty, the plea is involuntarily and invalid.” Saadiq v.

State, 387 N.W.2d 315, 324 (Iowa 1986). Durrell argues “he communicated

specific concerns to Trial Counsel which triggered the duty to clarify how his plea

would impact him.” See id. at 325 (noting “counsel’s duties in connection with a

defendant’s guilty plea include advising the defendant of available alternatives and

considerations important to counsel or the defendant in reaching a plea decision”).

Despite Durrell’s assertions, the record does not contain evidence that he

was misinformed, or that he communicated specific concerns regarding these

collateral consequences to trial counsel. Durrell testified he received no

information about the firearms or travel consequences of his plea. But not

informing is not misinforming. See id. (“Failure to inform of the additional

consequence that [defendant] could not possess the firearm . . . does not make

the information which was given inaccurate. The question is not one of

misinformation; instead it is one of whether counsel . . . went far enough in

informing [defendant].”).

Counsel has no general duty to inform of the collateral consequences of a

plea. Sothman v. State, 967 N.W.2d 512, 523 (Iowa 2021). And Durrell has shown

no misinformation or specific concerns that would create a claim of ineffective

assistance regarding the collateral consequences of his plea.
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B. Deferred Judgment and Rule 2.10 Plea

Durrell also alleges his trial counsel represented he was guaranteed a

deferred judgment and that counsel failed to negotiate a Rule 2.10 plea. He again

points to the whiteboard exhibits. The whiteboard photo dated January 9 outlined

a deferred judgment. This included listing elements such as probation, a no-

contact order, and sex offender registry. It also listed “Community Service??” This

was the only portion of the whiteboard that included question marks. Durrell

argues this means it was the only portion of the plea agreement in question, and

therefore a deferred judgment was certain. Durrell also presented an affidavit

authored by himself to support his claim that he was assured a deferred judgment.

But Durrell’s argument that counsel assured him that he was guaranteed a

deferred judgment is contradicted throughout the record. When considering if a

defendant was promised a deferred judgment by counsel, we consider the

evidence beyond just the defendant’s allegations. See Wise v. State, 708 N.W.2d

66, 71 (Iowa 2006) (“In addition to [defendant’s] plea statements, we have recited

a number of other matters that directly contradict [defendant’s] allegation that

[counsel] told her she would receive a deferred sentence if she pleaded guilty.”).

At the PCR hearing, Durrell repeatedly confirmed he knew he was not

guaranteed a deferred judgment. First, when questioned by his PCR counsel:

A. I was under the understanding that I was going to receive
a deferred judgment.
Q. How was that assured to you that you were going to get a
deferred judgment?
A. Jake talked to Meggan, and they said I had a chance to get
that.
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Durrell acknowledged he had a chance to get a deferred judgment, showing

his understanding it was not a guaranteed outcome. And when the State followed

with cross-examination, Durrell confirmed this:

Q. Now, you indicate that you did not have any idea that you
weren’t guaranteed that deferred judgment. Is that what you’re
saying?
A. Can you ask me that again, please?
Q. Well, before you said that [trial counsel] told you you had a
chance to get that. And I actually wrote down “chance.”
A. Yes, yes,
Q. So we understand by just the term “chance,” in and of itself
that’s not a guarantee; right?
A. That’s correct.
Q. So you understood that there was a chance that you would
not get it?
A. Correct.
Q. So when you went into that sentencing, you understood
there was a chance you would not be given that deferred judgment
that the plea agreement said?
A. Right.

Durrell’s testimony confirms he was aware a deferred judgment was not

guaranteed. And Durrell’s signed petition to plead guilty stated: “The Court is not

bound by any plea agreement and may give me the maximum sentence allowed

by law.”

Trial counsel also testified he never guaranteed Durrell a deferred

judgment. And when the PCR court considered trial counsel’s testimony and

Durrell’s testimony, it found trial counsel more credible. We give deference to the

court’s credibility findings. See Cox v. State, 554 N.W.2d 712, 714–15 (Iowa Ct.

App. 1996).

Durrell also claims that trial counsel was ineffective because “trial counsel

failed to prepare a Rule 2.10 plea on Durrell’s behalf.” But the record does not

establish Durrell’s counsel was ineffective in this regard. “Improvident trial
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strategy, miscalculated tactics, and mistakes in judgment do not necessarily

amount to ineffective assistance of counsel.” State v. McKettrick, 480 N.W.2d 52,

55 (Iowa 1992). Trial counsel testified a Rule 2.10 plea is very infrequent in his

practice, and in his experience, judges do not favor them as they interfere with

judicial discretion. Durrell’s signed plea clearly stated that the court maintained

discretion in sentencing. We conclude that counsel did not breach an essential

duty regarding the deferred judgment claims.

IV. Conclusion

For the above stated reasons, Durrell has not shown his trial counsel

breached an essential duty. Accordingly, we affirm.

AFFIRMED.