Kelvin Lee Plain Jr. v. State of Iowa

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.
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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
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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
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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.”).