IN THE COURT OF APPEALS OF IOWA

No. 15-0946

Filed June 15, 2016

JASON WAYNE FRANSENE,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Marlita A. Greve, 

Judge.

Jason Fransene appeals from the denial of his application for 

postconviction relief. AFFIRMED.

Thomas J. O’Flaherty of O’Flaherty Law Firm, Bettendorf, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant 

Attorney General, for appellee State.

Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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DANILSON, Chief Judge.

Jason Fransene appeals from the denial of his application for 

postconviction relief (PCR). He contends plea counsel was ineffective in failing 

to inform him how his plea and sentence would be applied by the board of parole 

and affect his discharge date. We affirm.

Denial of a PCR application is generally reviewed for corrections of errors 

at law. Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012). However, when a 

claim presents a constitutional issue, such as ineffective assistance of counsel, 

our review is de novo. State v. Ragland, 812 N.W.2d 654, 657 (Iowa 2012). 

“The general test applied to a claim of ineffective assistance of counsel is 

whether under the entire record and totality of the circumstances counsel's 

performance was within the range of normal competency.” State v. Carney, 584 

N.W.2d 907, 910 (Iowa 1998) (citations omitted). In order to prevail on his claim 

of ineffective assistance of counsel, Fransene must show, by a preponderance of 

evidence, that his plea counsel both (1) breached an essential duty and (2) 

caused him prejudice by that breach. See State v. Clay, 824 N.W.2d 488, 495 

(Iowa 2012).

In October 2012, Fransene was already on parole and under the 

supervision of the department of correctional services. On October 22, he was 

arrested for forgery and second-degree theft. He was released on bond that 

same date.

On October 26, 2012, Fransene was arrested and charged with violating 

his parole by passing checks using someone else’s name on twenty-two 

occasions in September 2012. He was held without bond. 
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In November 2012, Fransene was charged with forgery and seconddegree theft, and the State gave notice of its intent to seek the habitual offender 

enhancement. 

In March 2013, Fransene pled guilty to second-degree theft as an habitual 

offender. Pursuant to the plea agreement, the State would dismiss the forgery 

charge and recommend incarceration for a term of fifteen years. The agreement 

also provided, “State recommends this sentence to run concurrent to parole 

violation.” The district court accepted the plea agreement and sentenced 

Fransene to a fifteen-year indeterminate term, to run concurrently with any 

sentences then pending subject to parole or probation requirements. 

In April 2013, an administrative parole judge found Fransene had violated 

his parole by being convicted and sentenced while on parole. The order stated 

Fransene’s parole was revoked as of the date of the offense, September 1, 2012. 

In May 2013, Fransene filed a PCR application, which was tried on April 

17, 2015. In its May 25, 2015 ruling, the district court characterized Fransene’s 

ineffective-assistance-of-counsel claim thus, “Fransene argues [plea attorney] 

Sothmann should have told him his plea of guilty would somehow affect his 

discharge date from parole” and he argues he “may not have pled guilty if he 

would have known it would have affected his discharge date.” 

At the PCR hearing, Sothmann acknowledged Fransene had concerns 

how the plea would affect his parole status. Sothmann stated he talked with 

other experienced criminal defense attorneys and talked with a long-time 

parole/probation officer from the Seventh Judicial District, Kim Crandall. No one 

had a definite answer because the decision was ultimately the board of parole’s 
4

decision. At no time did Sothmann make any promises or predictions to

Fransene regarding what would happen with his parole violation or discharge 

date. 

The PCR court found Sothmann did not breach an essential duty. The 

court wrote, “No one had a specific answer because that issue is left entirely to 

the board of parole. Even if Sothmann had received a definitive answer, the 

board of parole would not have had to follow it.” We agree.

Counsel investigated and informed Fransene that the matter was up to the 

parole board. See Carney, 584 N.W.2d at 910 (“‘When the ineffectiveness claim 

is based on alleged failure to advise a defendant of the consequences of a guilty 

plea, the rule is that, if the consequences flow “directly” from the plea, the plea 

may be held invalid.’” “On the other hand, if ‘the fallout from the plea is 

“collateral,” counsel is generally not held to be ineffective for failing to inform the 

defendant about it.’” (citations omitted)); Mott v. State, 407 N.W.2d 581, 583 

(Iowa 1987) (“The distinction between ‘direct’ and ‘collateral’ consequences of a 

plea, while sometimes shaded in the relevant decisions, turns on whether the 

result represents a definite, immediate and largely automatic effect on the range 

of the defendant’s punishment.” (citation omitted)), abrogated on other grounds 

by Perez v. State, 816 N.W.2d 354, 360 (Iowa 2012). But cf. State v. Fisher, 877 

N.W.2d 676, 683-84 (Iowa 2016) (finding a plea was involuntary when the 

defendant was not informed that revocation of a driver’s license was a mandatory 

consequence of a drug-possession conviction). Moreover, counsel did not 

misinform Fransene of a collateral consequence, a later parole date. See State 

v. Ramirez, 636 N.W.2d 740, 742-43 (Iowa 2001) (citing Charles Alan 
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Wright, Federal Practice and Procedure § 173, at 191-94 (1999), which lists a 

later parole date as a collateral consequence), abrogated on other grounds by

Chaidez v. United States, 133 S. Ct. 1103, 1110 (2013). Rather, Fransene 

proceeded with his plea knowing that neither the court nor his attorney were able 

to provide the information he sought concerning the collateral consequence. 

In any event, the court concluded Fransene could not prove prejudice 

because

the plea agreement called for any sentences to run concurrent to 

any parole violation, which was all Sothmann could ever have 

obtained on Fransene’s behalf. The sentencing order was 

corrected to properly reflect this court’s recommendation of 

concurrent sentencing to the parole violation. Whether the board of 

parole honored that recommendation is not something this court 

could order, nor could Sothmann do any more to require it.

 

The court also observed Fransene did not wish to have his plea withdrawn, only 

that the habitual offender enhancement be removed. 

Upon our de novo review, we find no reason to disturb the denial of the 

PCR application. The district court’s findings are supported by the record. 

Fransene has failed to carry his burden of proof on either element of an 

ineffectiveness claim. Fransene was not given erroneous advice or misled about 

the effect of his plea on his parole discharge date. Cf. Meier v. State, 337 

N.W.2d 204, 206-07 (Iowa 1983) (discussing the prejudice resulting from 

“counsel’s legal misadvice resulting from his unfamiliarity with and failure to 

research applicable statutory provisions that in various plea alternatives would 

determine the length of his client’s incarceration”). 

Fransene also did not prove the requisite prejudice. See Fisher, 877 

N.W.2d at 682 n.3 (noting that “under the rubric of ineffective assistance of 
6

counsel,” a defendant must demonstrate “a reasonable probability that, but for 

counsel’s errors, he [or she] would not have pleaded guilty and would have 

insisted on going to trial” (citation omitted)).

Fransene has failed to prove his ineffectiveness claim, and we therefore 

affirm.

AFFIRMED.