Kelly Charles Sand v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 22-0523
Filed May 24, 2023

KELLY CHARLES SAND,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Joseph Seidlin, Judge.

An applicant appeals the denial of postconviction relief, alleging his plea

counsel was ineffective. AFFIRMED.

Nathan Olson of Branstad & Olson Law Office, Des Moines, for appellant.

Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.

Considered by Tabor, P.J., Greer, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
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TABOR, Presiding Judge.

Because his plea counsel did not tell him about a “silent mandatory

sentence,” Kelly Sand claims he received ineffective assistance. That claim was

the backbone of Sand’s application for postconviction relief (PCR) from six

convictions following plea negotiations with the State. He argues sex offender

treatment program (SOTP) policies within the Iowa Department of Corrections

(DOC) may result in him serving more time and counsel failed to advise him of that

likelihood. Finding parole eligibility was not a direct consequence of Sand’s guilty

pleas, the district court rejected the ineffective-assistance claim and denied relief.

We do the same.

I. Facts and Prior Proceedings

In 2017, Sand accepted a plea agreement covering two prosecutions. In

the first case, the State charged Sand with burglary in the first degree and two

counts of harassment in the first degree. The charging documents alleged that

after sending his ex-girlfriend, K.D., harassing text messages, Sand broke into her

house and brandished a knife. When police found him in a neighboring yard, he

threatened to kill the officers.

In the second case, the State charged Sand with burglary in the first degree,

assault with intent to commit sexual abuse causing bodily injury, willful injury

causing bodily injury, enhanced domestic abuse assault, and operating a motor

vehicle without the owner’s consent. The charging documents alleged that Sand

entered K.D.’s house in violation of a no-contact order. Once inside, he demanded

oral sex, began to “rip off her clothes,” and strangled her until she passed out.

When she regained consciousness, she fought with him, and he twisted her arm.
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Eventually, she escaped to a neighbor’s house and called for help. When the

police arrived, Sand took her car without permission.

Sand worked out a plea agreement with the State to resolve all counts. In

both prosecutions, the State amended the burglary charges from first degree to

second degree. The State also dismissed the charges of assault with intent to

commit sexual abuse and operating a motor vehicle without the owner’s consent.

Sand then pleaded guilty to two counts of second-degree burglary, two counts of

first-degree harassment, one count of willful injury causing bodily injury, and one

count of second-offense domestic abuse assault. See Iowa Code §§ 713.5, 708.7,

708.1 (2017). The district court sentenced him to an indeterminate term of twenty-

nine years.

Representing himself, Sand filed a PCR application in 2018 that counsel

amended in 2019. In those proceedings, Sand asserted that his plea counsel was

ineffective because she failed to advise him that “even if he was sent to prison on

a non-sexual offense, the Department of Corrections could determine the offense

to be of a sexual nature and require him to complete sexual offender treatment

programming prior to being released on parole.” He claimed that if properly

advised, he would not have accepted the plea offer and would have gone to trial

on the original charges.

While this PCR was pending, Sand and six other offenders filed PCR

petitions in Jasper County alleging that Iowa’s failure to adequately fund SOTP

violated their due process liberty interest in parole. See Bomgaars v. State, 967

N.W.2d 41 (Iowa 2021). Those consolidated cases challenged the DOC procedure

for determining when inmates could begin SOTP. Id. at 42. Because of limited
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resources and a large wait list, most inmates could not receive treatment until near

their tentative discharge date. Id. The Bomgaars court recognized that the

offenders enjoyed a protected liberty interest in parole. Id. at 48 (highlighting

mandatory release language in Iowa’s parole statute). But the court found no

unconstitutional deprivation of due process and denied relief. Id. at 55 (explaining

liberty interest was subject to reasonable limits on SOTP programming including

classroom space and available instructors).

After Bomgaars, Sand argued that because he had a liberty interest in being

paroled, plea counsel had a material duty to tell him how the possibility of SOTP

would affect the length of his prison stay. The district court rejected that argument,

finding even after Bomgaars, parole eligibility remains a collateral consequence of

a guilty plea. Because plea counsel did not have a duty to inform Sand of collateral

consequences, he could not show ineffective assistance and was not entitled to

relief from his convictions. Sand now appeals that PCR ruling.

II. Scope and Standards of Review

As a baseline, we review PCR rulings for correction of errors at law. Brooks

v. State, 975 N.W.2d 444, 445 (Iowa Ct. App. 2022). But when applicants raise

constitutional issues, such as ineffective assistance of counsel, our review is de

novo. Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).

III. Analysis

We analyze ineffective-assistance-of-counsel claims under a two-prong

test. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail, Sand must

show a deficiency in counsel’s performance and that the deficient performance

prejudiced him. Id. We measure counsel’s performance against the standard of
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a reasonably competent practitioner. State v. Clay, 824 N.W.2d 488, 495 (Iowa

2012). On the prejudice prong, because Sand pleaded guilty, he must show that

but for his attorney’s omission he would have insisted on going to trial. See State

v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009).

Sand alleges his counsel’s performance was subpar because she failed to

inform him of the consequences of his guilty plea. Sand was originally charged

with a sexually motivated crime: assault with intent to commit sexual acts. See

Iowa Code § 709.11. But the State dismissed that charge as part of the plea

agreement. Both Sand and his attorney agree that she did not discuss SOTP as

a potential consequence of the plea bargain because he was not pleading guilty to

a sexually motivated crime. On the flipside, counsel did not tell Sand that he was

exempt from the DOC requirement for sex offender treatment.

In reviewing Sand’s claim, we start with the basics. A guilty plea must be

“made voluntarily and intelligently.” Iowa R. Crim. P. 2.8(2)(b). To ensure that a

plea is voluntary and intelligent, the district court must inform the defendant of its

direct consequences. State v. Carney, 584 N.W.2d 907, 908 (Iowa 1998). But the

court need not tell the defendant about “all indirect and collateral consequences of

a guilty plea.” Id. The same is true when it comes to plea counsel; failure to inform

the client of collateral consequences does not constitute deficient performance.

Doss v. State, 961 N.W.2d 701, 713 (Iowa 2021). Yet plea counsel does deliver a

deficient performance by misinforming their client as to those consequences. Id.

So how do we draw the line between direct and collateral consequences?

A consequence is direct if it has a “definite, immediate and largely automatic effect”

on the range of the punishment faced by the defendant. Id. at 710 (citation
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omitted); but see Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (rejecting notion

that distinction between direct and collateral consequences defines scope of

reasonable professional assistance under Strickland). Sand insists that his

required participation in SOTP was “a foreseeable consequence” of his guilty pleas

even though he did not plead to a sex crime. See State v. Iowa Dist. Ct., 888

N.W.2d 655, 667 (Iowa 2016) (holding that chapter 903A does not require a judge

or jury to make a factual finding that an offense was sexually motivated before the

DOC may refer an offender to SOTP, rather DOC can refer an offender to SOTP

based on a victim’s detailed account in a police report.). Sand likens the SOTP

requirement to immigration consequences. See Diaz v. State, 896 N.W.2d 723,

729 (Iowa 2017) (holding that defense counsel must tell clients about potential

immigration consequences should they plead guilty.).

The State counters that “numerous repercussions of a plea have been held

to be collateral consequences that a defendant need not be informed of prior to

entering a plea” including parole eligibility. See Smith v. State, No. 08-0362, 2008

WL 5235548, at *3 (Iowa Ct. App. Dec. 17, 2008) (holding SOTP was not direct

consequence of guilty plea). But is that true post-Bomgaars? Does the supreme

court’s recognition that offenders have a liberty interest in parole mean that parole

eligibility becomes a direct consequence of a guilty plea? The district court said

no, and we agree.

Less than a month after deciding Bomgaars, the supreme court reiterated:

“Parole eligibility is a collateral consequence of a plea.” Sothman v. State, 967

N.W.2d 512, 523 (Iowa 2021) (quoting Stevens v. State, 513 N.W.2d 727, 728

(Iowa 1994)). The court rejected Sothman’s claim that “her plea counsel breached
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an essential duty by failing to correctly advise her on when she would realistically

be considered” for parole. Id. Sothman is instructive here. Sand’s plea counsel

had no duty to warn that the DOC could require him to participate in SOTP and

delay his parole eligibility. Because Sand’s counsel did not provide any

misinformation, her performance did not fall below the standard of a reasonably

competent practitioner. See id.

The “silent mandatory sentence”—experienced by Sand and other

offenders as they waited for SOTP before being eligible for parole—did not have

the same fixed effect on their range of punishment as actual mandatory minimum

sentences. In Bomgaars, the district court found that the DOC was “reducing the

backlog of inmates awaiting SOTP.” 967 N.W.2d at 45. But like any estimate on

the likelihood of parole, there are no guarantees as to a release date. See

Sothman, 967 N.W.2d at 525. The conditions of Sand’s release depended on

decisions by the DOC and board of parole, so they did not have the sort of “definite,

immediate and largely automatic effect” on the range of punishment as direct

consequences of a plea. See Doss, 961 N.W.2d at 713. So plea counsel’s failure

to discuss these collateral consequences was not deficient performance.1 See id.

Because Sand failed to prove deficient performance, we need not consider

the prejudice element of his claim. See Dempsey, 860 N.W.2d at 868.

AFFIRMED.

1That said, it may be desirable for counsel to advise their clients that SOTP might
be required and might affect their parole eligibility, even if they don’t plead guilty to
a sex offense. Cf. Blaise v. State, No. 10-0466, 2011 WL 2078091, at *4 (Iowa Ct.
App. May 25, 2011) (discussing possibility of civil commitment as a sexually violent
predator).