IN THE COURT OF APPEALS OF IOWA

No. 16-2032

Filed December 20, 2017

ANTONIO MONTE GIAMBO II,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, James S. 

Heckerman, Judge.

An applicant appeals the denial of postconviction relief. AFFIRMED. 

Krisanne C. Weimer of Weimer Law, P.C., Council Bluffs, for appellant.

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

General, for appellee State.

Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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TABOR, Judge.

With the jury waiting, Antonio Giambo II entered a plea agreement with the 

State that reduced his charge from third-degree sexual abuse, a class “D” felony, 

to assault with intent to commit sexual abuse, an aggravated misdemeanor. 

Following his guilty plea and sentencing, he unsuccessfully applied for

postconviction relief (PCR) as a self-represented litigant. 

Giambo now appeals the PCR court’s denial of relief, claiming trial counsel 

had a conflict of interest and used threats to coerce his plea. Giambo additionally 

alleges his plea was coerced based on “a conflict of interest with anyone from the 

State Public Defender’s office representing him at his January 2014 [criminal] trial 

because they were concurrently representing the alleged victim in other, unrelated 

cases.” After reviewing the record, we affirm the PCR court’s thorough and wellreasoned decision rejecting these claims. See Iowa Ct. R. 21.26(1)(a), (d), (e).

In a second issue, Giambo asserts his PCR counsel rendered ineffective 

assistance in multiple ways. Such claims are an exception to the rules of error 

preservation. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). Our review

is de novo. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). “We must 

now decide whether these claims present grounds which may be addressed in this 

appeal or preserved for further postconviction proceedings.” Dunbar, 515 N.W.2d 

at 15. Ordinarily, we preserve such claims to allow development of the facts 

surrounding counsel’s conduct. See State v. Rawlings, 402 N.W.2d 406, 408 

(Iowa 1987). But we may address claims where the record is sufficiently 

developed to resolve them. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). 

Here, the record is adequate to resolve all but one of these claims. 
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To succeed, Giambo must establish (1) his PCR counsel failed to perform 

an essential duty and (2) that failure resulted in prejudice. See Strickland v. 

Washington, 466 U.S. 668, 687 (1984). “Reversal is warranted only where a 

claimant makes a showing of both elements.” Dempsey, 860 N.W.2d at 868. If a 

claimant fails to establish one element, we need not address the other. Id. 

Giambo first faults PCR counsel for not amending the self-represented 

application that failed to include a prayer for relief. We conclude Giambo was not 

prejudiced by counsel’s omission because, after his PCR counsel filed a brief 

addressing Giambo’s claims with a specific prayer for relief, the court considered 

and resolved the matters.

Giambo also contends PCR counsel failed to adequately investigate

whether plea counsel had a conflict of interest. Because we agree with the PCR 

court’s conclusion that this claim was meritless, PCR counsel did not breach a duty 

by curtailing further inquiry after she provided Giambo with transcripts refuting his

conflict-of-interest claim. State v. Hoskins, 711 N.W.2d 720, 731 (Iowa 2006)

(ruling counsel is not ineffective for failing to raise meritless issues).

Giambo next asserts PCR counsel failed to identify and present evidence 

on the issue of Giambo’s reasonable ability to reimburse court-appointed trial 

attorney fees. Because such fee issues do not provide grounds for relief, this claim 

is also meritless. See Iowa Code § 822.2(1)(g) (2015).

Giambo next complains PCR counsel failed to challenge his trial counsel’s

ineffectiveness in allowing Giambo to enter a guilty plea without a factual basis. 

Determining a factual basis is a prerequisite for accepting a guilty plea. Iowa R. 

Crim. P. 2.8(2)(b). Where there is no factual basis and trial counsel allows a 
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defendant to plead guilty, trial counsel breaches an essential duty. State v. 

Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). In such circumstances, we 

presume prejudice. Id. In deciding if a factual basis existed for Giambo’s plea, we 

examine the record before the plea court, including the minutes of testimony, for 

sufficient proof supporting the conclusion Giambo assaulted the victim with intent 

to commit sexual abuse. See Iowa Code § 709.11 (2015); State v. Keene, 630 

N.W.2d 579, 581 (Iowa 2001). The record need not contain “the totality of evidence 

necessary to support a guilty conviction, but only . . . demonstrated the facts to 

support the elements of the offense.” Rhodes v. State, 848 N.W.2d 22, 29 (Iowa 

2014) (citation omitted). 

At the plea hearing, Giambo acknowledged the witnesses would testify 

consistently with the minutes of evidence. The minutes show the complaining 

witness would testify Giambo forced her into the bathroom of a vacant apartment, 

threatened her with a knife, and told her to “suck [him] off.” He grabbed her and 

tried to kiss her. When Giambo pressed his penis against the corner of her mouth 

and cheek, she tried to bite it. She started to yell for help, but Giambo covered her 

mouth with his hand and demanded she undress for vaginal sex. He paused when 

he heard voices outside of the bathroom and threatened to kill her with his knife. 

Giambo then sexually assaulted her as she wept. After the assault, she called 911 

and identified Giambo in a photographic line-up while she was at the hospital. 

Giambo’s PCR counsel had no duty to raise this meritless issue—the minutes 

provided a factual basis for his plea. 

Finally, Giambo asserts PCR counsel was ineffective in not challenging the 

plea court’s failure to advise him of “the criminal penalty surcharge imposed by 
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Iowa Code section 911.1 or the sexual abuse victim surcharge imposed by Iowa 

Code section 911.2B.” The State replies “there is no likelihood that Giambo would 

not have pleaded guilty but for being informed regarding a 35% surcharge of $218.” 

A defendant pleading guilty has a right to be informed of surcharges levied 

on fines. State v. Fisher, 877 N.W.2d 676, 678 (Iowa 2016). The “circumstances 

underlying . . . [Giambo’s] willingness to go to trial are facts that should be 

permitted to be more fully developed.” See State v. Gaston, No. 16-1957, 2017 

WL 4317310, at *2 (Iowa Ct. App. Sept. 27, 2017) (quoting State v. Delacy, No. 

16-0827, 2017 WL 1735684, at *4 (Iowa Ct. App. May 3, 2017)); accord State v. 

Iddings, No. 15-1597, 2017 WL 2464049, at *5 (Iowa Ct. App. June 7, 2017); State 

v. Bascom, No. 15-2173, 2017 WL 1733115, at *1 (Iowa Ct. App. May 3, 

2017); State v. Taylor, No. 16-0762, 2017 WL 1735682, at *1–2 (Iowa Ct. App. 

May 3, 2017). Accordingly, we preserve this claim for the possibility of an 

additional postconviction proceeding. See Fetters v. State, No. 03-1088, 2004 WL 

793729, at *3 (Iowa Ct. App. Apr. 14, 2004) (finding record inadequate and 

preserving claims of ineffective assistance of PCR trial counsel).

AFFIRMED.

Danilson, C.J., concurs; McDonald, J., partially dissents.
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MCDONALD, Judge (dissenting in part).

I concur in the majority’s resolution of Giambo’s claims except Giambo’s 

claim of ineffective assistance of postconviction counsel in failing to challenge the 

adequacy of the plea colloquy as it related to the provision of information regarding 

applicable surcharges. I would deny that claim on the merits. I thus concur in part 

and dissent in part.

Iowa Code chapter 822 (2105) creates a statutory procedure for “[a]ny 

person who has been convicted of, or sentenced for, a public offense” to seek 

postconviction relief. Iowa Code § 822.2. “[P]ostconviction relief proceedings are 

not criminal proceedings, but rather are civil in nature and are triable at law to the 

court.” Jones v. State, 479 N.W.2d 265, 269 (Iowa 1991) (emphasis in original 

omitted). As with any civil proceeding, postconviction-relief proceedings are 

subject to rules regarding the timely and prompt presentation of claims. For 

example, the statute provides for a three-year statute of limitations. See Iowa 

Code § 822.3. By way of another example, the statute contains a claim-preclusion 

provision. Specifically, Iowa Code section 822.8 provides:

All grounds for relief available to an applicant under this 

chapter must be raised in the applicant’s original, supplemental or 

amended application. Any ground finally adjudicated or not raised, 

or knowingly, voluntarily, and intelligently waived in the proceeding 

that resulted in the conviction or sentence, or in any other proceeding 

the applicant has taken to secure relief, may not be the basis for a 

subsequent application, unless the court finds a ground for relief 

asserted which for sufficient reason was not asserted or was 

inadequately raised in the original, supplemental, or amended 

application.

Cf. Pavone v. Kirke, 807 N.W.2d 828, 835 (Iowa 2011) (stating the doctrine of claim 

preclusion holds “a valid and final judgment on a claim bars a second action on the 
7

adjudicated claim or any part thereof” and “claim preclusion will apply not only to 

matters actually determined in an earlier action but to all relevant matters that could 

have been determined”). 

With respect to the claim preclusion provision, the supreme court had 

interpreted this provision “to require a postconviction-relief applicant to raise any 

ineffective-assistance claims on direct appeal or ‘show sufficient reasons why any 

ground for relief asserted in a postconviction relief petition was not previously 

asserted on direct appeal.’” State v. Johnson, 784 N.W.2d 192, 196 (Iowa 2010)

(citation omitted). If the postconviction-applicant failed “to prove a sufficient reason 

for failing to raise a claim on direct appeal, he [was] precluded from asserting the 

claim in a postconviction proceeding.” Id. Not only did the supreme court require 

an applicant to present a claim of ineffective assistance of counsel on direct 

appeal, it required the defendant to make a showing “supporting the legitimacy of 

the claim.” Id. Specifically:

To preserve claims of ineffective assistance of counsel for 

postconviction review, a defendant must make some minimal 

showing from which this court can assess the potential viability of his 

or her claim. Such a showing should not only demonstrate some 

need for further development of the record, but should indicate why 

the challenged actions are believed to have been ineffective and 

what prejudice is likely to have resulted from them. The bald 

assertion that certain acts constitute ineffective assistance of 

counsel will be insufficient to preserve the question for postconviction 

proceedings.

Id. 

In 2004, the legislature abrogated the caselaw that required a defendant to 

raise a claim of ineffective assistance of counsel on direct appeal to preserve the 

claim for postconviction-relief proceedings. The new provision provided:
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1. An ineffective assistance of counsel claim in a criminal case 

shall be determined by filing an application for postconviction relief 

pursuant to chapter 822, except as otherwise provided in this section.

The claim need not be raised on direct appeal from the criminal 

proceedings in order to preserve the claim for postconviction relief 

purposes.

2. A party may, but is not required to, raise an ineffective 

assistance claim on direct appeal from the criminal proceedings if the 

party has reasonable grounds to believe that the record is adequate 

to address the claim on direct appeal.

3. If an ineffective assistance of counsel claim is raised on 

direct appeal from the criminal proceedings, the court may decide 

the record is adequate to decide the claim or may choose to preserve 

the claim for determination under chapter 822.

Iowa Code § 814.7. In Johnson, the supreme court recognized this provision 

abrogated “the preservation requirement as it applied to direct appeals.” Johnson, 

784 N.W.2d at 197. The Johnson court also recognized the statutory change 

eliminated the requirement that the defendant on direct appeal “make any 

particular record in order to preserve the claim for postconviction relief.” Id. at 198. 

In making this latter determination, the supreme court overruled cases to the 

contrary. See id. 

In this case, Giambo raises a claim of ineffective assistance of 

postconviction counsel. There is no constitutional right to postconviction relief, 

postconviction counsel, or the effective assistance of postconviction counsel. See 

Williams v. Pennsylvania, 136 S. Ct. 1899, 1921 (2016) (Thomas, J., dissenting); 

Montgomery v. Louisiana, 136 S. Ct. 718, 746 (2016) (Thomas, J., dissenting) 

(“Because the Constitution does not require postconviction remedies, it certainly 

does not require postconviction courts to revisit every potential type of error.”); 

Coleman v. Thompson, 501 U.S. 722, 752 (1991) (“There is no constitutional right 

to an attorney in state post-conviction proceedings. Consequently, a petitioner 
9

cannot claim constitutionally ineffective assistance of counsel in such 

proceedings.”); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We have never 

held that prisoners have a constitutional right to counsel when mounting collateral 

attacks upon their convictions, and we decline to so hold today. Our cases 

establish that the right to appointed counsel extends to the first appeal of right, and 

no further.”). However, the supreme court has recognized a statutory right to 

counsel in chapter 822 proceedings and a corresponding statutory right to the 

effective assistance of postconviction counsel. See Dunbar v. State, 515 N.W.2d 

12, 15 (Iowa 1994). 

With respect to a claim of ineffective assistance of postconviction counsel 

raised on appeal from an adverse judgment in a postconviction-relief proceeding, 

to the extent such a claim can be “preserved” for subsequent rounds of 

postconviction-relief proceedings,1the applicant is still required to make a 

particularized showing of a viable claim. This requirement was set forth in Dunbar. 

 

1 There is no statutory authority to preserve a claim of ineffective assistance of 

postconviction counsel. See Moody v. State, No. 16-1465, 2017 WL 4843182, at *4 (Iowa 

Ct. App. Oct. 25, 2017) (McDonald, J., concurring specially); Moore v. State, No. 15-1779, 

2017 WL 2461427, at *13 (Iowa Ct. App. June 7, 2017) (“Because a postconviction-relief 

proceeding is a civil proceeding rather than a ‘criminal proceeding,’ section 814.7(3) is 

inapplicable here. We thus have no authority to ‘preserve’ a claim of ineffective assistance 

of postconviction counsel. [The applicant] may file another application for postconviction 

relief and assert this or any other claim. The timeliness and propriety of any such 

application, claim, or claims would be governed by chapter 822.”); Cole v. State, No. 15-

0344, 2016 WL 7395722, at *2 (Iowa Ct. App. Dec. 21, 2016) (declining to “preserve” claim 

of ineffective assistance of postconviction counsel on the ground there is statutory 

authority to do so). The lack of statutory authority to “preserve” such a claim does not 

necessarily mean the applicant would be precluded from presenting such a claim in a 

second or subsequent application for postconviction relief. The ineffective assistance of 

postconviction counsel might constitute “sufficient cause” within the meaning of section 

822.8 to excuse the failure to present the claim in an earlier proceeding. See Dunbar, 515 

N.W.2d at 14. 
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See id. (declining to preserve claim where the allegations were “too general” and 

where the applicant failed to articulate particular prejudice). Section 814.7 did not 

abrogate the Dunbar requirement with respect to appeals from postconvictionrelief proceedings because section 814.7 related only to claims on “direct appeal 

from the criminal proceedings.” Nor did Johnson overrule or otherwise limit 

Dunbar. See Johnson, 784 N.W.2d at 197 (noting Dunbar applied a “similar 

specificity requirement” to preserve a claim of ineffective assistance of 

postconviction counsel). To the contrary, the Johnson court very specifically held 

section 814.7 eliminated only the requirement for a heightened showing in the 

context of a direct appeal:

Upon our examination of this issue, we overrule our holding . . . that 

a defendant is required to demonstrate the potential viability of any 

ineffective-assistance claim raised on direct appeal in order to 

preserve the claim for postconviction relief. We think it would be 

inconsistent with the rule that a defendant is not required to raise 

ineffective-assistance claims on direct appeal in order to preserve 

such claims for postconviction relief, yet hold that such claims cannot 

be preserved when they are raised in a general or conclusory 

manner on direct appeal. Moreover, section 814.7(3) clearly gives 

the appellate court only two choices when an ineffective-assistance 

claim is raised on direct appeal: (1) “decide the record is adequate 

to decide the claim,” or (2) “choose to preserve the claim for 

determination under chapter 822.” Iowa Code § 814.7(3). Based on 

the provisions of section 814.7, we hold defendants are no longer 

required to raise ineffective-assistance claims on direct appeal, and 

when they choose to do so, they are not required to make any 

particular record in order to preserve the claim for postconviction 

relief.

Id. at 198 (emphases added). The preservation of this heightened requirement 

with respect to claims of ineffective assistance of postconviction counsel advances 

a legitimate interest in the finality of criminal convictions. Otherwise, it’s just 
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ineffective-assistance turtles all the way down. See Rapanos v. United States, 547 

U.S. 715, 754 n.14 (2006).

Applying the controlling standard to the case at hand, I would not preserve 

Giambo’s claim of ineffective assistance of postconviction counsel related to the 

failure to challenge the adequacy of the plea proceeding insofar as the plea court 

failed to inform the defendant of applicable surcharges. Giambo raises a very 

specific claim, which satisfies the dictate of Dunbar. However, Giambo does not 

allege prejudice. That is, he makes no argument that had he been informed of the 

applicable surcharges he would have foregone the guilty plea and insisted on 

going to trial. Indeed, such a claim is contrary to Giambo’s main argument on 

appeal—that his trial counsel and the district court forced Giambo to accept the 

plea offer against Giambo’s will. Are we to believe that had Giambo been informed 

of the surcharges he would have summoned sufficient additional intestinal fortitude 

to resist the demands of his allegedly overbearing counsel and the district court? 

There is nothing in this record to establish Giambo has a legitimate or viable claim 

in this respect, and I would deny the claim on the merits and affirm the judgment 

of the postconviction court in its entirety. See Dunbar, 515 N.W.2d at 16 (“On 

appeal Dunbar was required to identify specific errors on the part of postconviction 

counsel that prejudiced his case. Dunbar has failed to do so. Consequently, we 

affirm the district court’s denial of his application for postconviction relief.”).

For the foregoing reasons, I concur in part and dissent in part.