Domnick Demetris Hogan v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 22-0916
Filed March 29, 2023

DOMNICK DEMETRIS HOGAN,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, Wyatt Peterson,

Judge.

An applicant seeks postconviction relief from his conviction for second-

degree robbery. AFFIRMED.

Raya D. Dimitrova of Carr Law Firm, P.L.C., Des Moines, for appellant.

Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee State.

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

Domnick Hogan seeks postconviction relief (PCR) from his conviction for

second-degree robbery. Hogan has not shown he received ineffective assistance

on his claim that defense counsel failed to inform him of the direct consequences

of his guilty plea. We affirm the district court’s decision denying his PCR

application.

I. Background Facts & Proceedings

Hogan was charged with first-degree robbery, in violation of Iowa Code

sections 711.1(1) and 711.2 (2018), a class “B” felony, and possession of a firearm

by a felon, in violation of section 724.26(1), a class “D” felony. If he was convicted

of both charges and the sentences were to be served consecutively, Hogan was

facing thirty years in prison.

Hogan entered into a plea agreement wherein he would plead guilty to a

reduced charge of second-degree robbery, a class “C” felony, and the charge of

possession of a firearm by a felon would be dismissed. The plea agreement

included the provision, “At sentencing, both parties will recommend a 10-year

prison sentence, with the imposition of the mandatory seven-year sentence.”

At the plea hearing, held on October 18, 2018, defense counsel set out the

terms of the plea agreement, including the provision that both parties would

recommend “the imposition of the seven years mandatory time.” The court

informed Hogan the sentencing recommendation in the plea agreement was not

binding on the court. The following exchange also occurred:

The Court: There are certain maximum and minimum
penalties for the crime to which you’re pleading guilty, which I
understand to be Robbery in the Second Degree. The following are
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the maximum and minimum penalties imposed, as well as other
possible consequences of your plea.
The maximum sentence is up to ten years in the Iowa State
Penitentiary. The maximum fine is $10,000, plus a 35 percent
surcharge, plus court costs, and possible restitution, and also
reimbursement to the State for any court-appointed attorney fees.
The minimum penalties are you must serve at least between
50 and 70 percent of the maximum sentence—and, again, the
maximum sentence is ten years—before you are eligible for parole
or work release. There is a minimum $1000 fine, plus the
surcharges, court costs, court-appointed attorney’s fees, and
restitution I mentioned previously. That fine cannot be suspended.
In addition, you are required to submit a DNA specimen or
provide a DNA specimen. Do you understand the possible maximum
and the required minimum penalties for the crime with which you are
charged?
Hogan: Yes, sir.

The court accepted Hogan’s guilty plea to second-degree robbery. On

December 3, 2018, Hogan was sentenced to a term of imprisonment not to exceed

ten years. The judgment entry stated, “The mandatory minimum sentence

pursuant to Iowa Code section 902.12 shall apply.”1 Hogan did not appeal his

conviction or sentence.

Hogan filed a PCR application on January 28, 2019. He claimed he

received ineffective assistance because defense counsel did not adequately

1 Section 902.12(4) provided:
A person serving a sentence for a conviction for robbery in the
second degree in violation of section 711.3 for a conviction that
occurs on or after July 1, 2016, shall be denied parole or work
release until the person has served between one-half and seven-
tenths of the maximum term of the person’s sentence as determined
under section 901.11, subsection 4.
At the time Hogan was sentenced this was section 902.12(3) and it has since been
renumbered. For convenience we refer to the current code number.
The judgment entry did not specify the percentage of the total sentence
Hogan should serve as a mandatory minimum sentence. On appeal, however,
Hogan and the State agree Hogan must serve a mandatory minimum sentence of
seven years.
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inform him of the mandatory minimum sentence for second-degree robbery before

he pled guilty. He stated that if he had known he might be sentenced to fifty

percent of a ten-year sentence, which is five years, rather than seventy-percent,

which is seven years, he would not have pled guilty and would have insisted on

going to trial.

The district court denied Hogan’s PCR claims. The PCR court noted that

at the guilty plea proceedings, the court explained the mandatory minimum

sentence to Hogan, specifically stating, “you must serve at least between 50 and

70 percent of the maximum sentence.” Also, there is no indication the State would

have agreed to a plea agreement where the parties recommended a five-year

mandatory minimum rather than a seven-year mandatory minimum. The court

found Hogan failed to show he received ineffective assistance of counsel. Hogan

now appeals, claiming he received ineffective assistance of counsel.

II. Standard of Review

We conduct a de novo review of claims of ineffective assistance of counsel.

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of

ineffective assistance of counsel, an applicant must prove: (1) counsel failed to

perform an essential duty and (2) the failure resulted in prejudice. State v. El-Amin,

952 N.W.2d 134, 138 (Iowa 2020). “We presume counsel performed competently

unless the claimant proves otherwise by a preponderance of the evidence.” State

v. Booth-Harris, 942 N.W.2d 562, 577 (Iowa 2020). When there has been a guilty

plea, to show prejudice an applicant must establish that “there is a reasonable

probability that, but for counsel’s error he or she would not have pleaded guilty and
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would have insisted on going to trial.” Horton v. State, 966 N.W.2d 663, 666 (Iowa

Ct. App. 2021) (citation omitted).

III. Discussion

Hogan claims he received ineffective assistance because defense counsel

did not inform him about a direct consequence of his guilty plea. He states defense

counsel had a duty to inform him of the mandatory minimum sentence for second-

degree robbery, which under section 902.12(4) could be “between one-half and

seven-tenths of the maximum term of [his] sentence.” Hogan asserts that if he had

known he could receive fifty percent of a ten-year sentence, or five years, he would

not have agreed to the plea agreement that provided the parties would recommend

a mandatory minimum sentence of seven years.

A similar argument was raised in Williams v. State, where Maurice Williams

claimed defense counsel “was ineffective in informing him about the minimum

sentence on the robbery counts.” No. 15-0633, 2016 WL 5480736, at *1 (Iowa Ct.

App. Sept. 28, 2016). We determined, “Assuming without deciding counsel

provided incorrect information about the robbery sentences before Williams

decided to plead guilty, there is a reasonable probability Williams would still have

pled guilty because the district court gave him correct information about his

sentences during a detailed plea colloquy.” Id. at *2. We found that given the

court’s statements to Williams, he “would be hard-pressed to argue any

misinformation from counsel about the robbery sentences affected his decision to

plead guilty.” Id. We concluded Williams failed to establish that he was prejudiced

by defense counsel’s conduct and he did not show he received ineffective

assistance of counsel. Id.
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As noted, during the plea colloquy, the district court informed Hogan, “The

minimum penalties are you must serve at least between 50 and 70 percent of the

maximum sentence—and, again, the maximum sentence is ten years—before you

are eligible for parole or work release.” Hogan responded, “Yes, sir,” when asked

“Do you understand the possible maximum and the required minimum penalties

for the crime with which you are charged?” As with Williams, we find Hogan “would

be hard-pressed to argue any misinformation from counsel about the . . . sentences

affected his decision to plead guilty.” See id.

We conclude Hogan has failed to show he was prejudiced by the conduct

of defense counsel, in that he has not shown “there is a reasonable probability

that, but for counsel’s error he . . . would not have pleaded guilty and would have

insisted on going to trial.” See Horton, 966 N.W.2d at 666. “If the claim lacks

prejudice, it can be decided on that ground alone without deciding whether the

attorney performed deficiently.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa

2001). Therefore, we do not address whether defense counsel breached an

essential duty.

We conclude Hogan has failed to show he received ineffective assistance

of counsel. We affirm the district court decision denying his PCR application.

AFFIRMED.