JAMIE LEE COLE vs. STATE OF IOWA

James Lee Cole appeals the denial of his application for postconviction

relief (PCR), contending his Buchanan County plea counsel was ineffective for

failing to continue sentencing until “Cole’s eligibility to participate in the 321J

program”1 on a plea to a charge in Delaware County was determined.

Because an ineffectiveness claim has as its basis the Sixth Amendment,

our review is de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).

The claim raised on appeal was not raised below and, therefore, is not

properly before us. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)

(“[I]ssues must normally be both raised and decided by the district court before we

will decide them on appeal.”); State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999)

(“Nothing is more basic in the law of appeal and error than the axiom that a party

cannot sing a song to us that was not first sung in trial court.”).

In his PCR application, Cole asserted his plea counsel “fail[ed] to properly

advise Cole during the plea negotiation process and sentencing.” He also alleged

he pled guilty in Buchanan County based on a “promise” that he would complete

the 321J program in a work-release facility. The district court rejected the

allegations. On our de novo review, we conclude the record belies Cole’s claim

that such a promise existed or that counsel failed to properly advise him.

Cole entered an Alford plea to operating while intoxicated (OWI), third

offense, in Buchanan County, and the State agreed it would recommend that the

1 The “321J program” to which Cole refers is an OWI residential treatment program available to certain offenders upon the department of corrections’ determination that such a program is appropriate. See Iowa Code §§ 321J.2(5)(a)(1), 904.513(1)(a), .513(1)(b)(1) (2015).

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sentence imposed would run concurrently to the sentence imposed upon Cole in

Delaware County. While the record shows Cole believed his Delaware County

plea would result in his going to a 321J program, his Buchanan County plea

counsel made it clear that sentencing result was not guaranteed. The prosecutor

agreed only that the State would recommend the sentence in Buchanan County

would run concurrent with the Delaware County sentence. Moreover, the district

court was not bound by the parties’ recommendations, but the court did impose a

sentence in Buchanan County that was to run concurrent to the sentence imposed

in Delaware County.

To establish an ineffective-assistance-of-counsel claim, an applicant must

show both that (1) his trial counsel failed to perform an essential duty, and (2) this failure resulted in prejudice. Clay, 824 N.W.2d at 495. Because Cole has failed to show plea counsel breached an essential duty, his ineffectiveness claim fails. See id. at 494. We affirm the denial of postconviction relief.



AFFIRMED.