IN THE COURT OF APPEALS OF IOWA

No. 14-0187

Filed July 22, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

JOSE LUIS AVALOS-COVARRUBIAS,

Defendant-Appellant.

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Appeal from the Iowa District Court for Johnson County, Douglas S. 

Russell, Judge.

Jose Avalos-Covarrubias appeals from his conviction for domestic abuse 

assault following a guilty plea. AFFIRMED.

Mark C. Meyer, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney 

General, Janet Lyness, County Attorney, and Kristin L. Parks, Assistant County 

Attorney, for appellee.

Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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POTTERFIELD, J.

Jose Avalos-Covarrubias appeals from his conviction for domestic abuse 

assault following a guilty plea. Avalos pled guilty to the domestic abuse assault 

charge, and the State, pursuant to a plea agreement, dismissed two other 

charges. In its colloquy, the district court informed Avalos, “As a Class ‘D’ felony, 

[the charged offense] is punishable by imprisonment of up to five years.” Avalos 

pled guilty. The court informed Avalos that any challenge to the plea needed to 

be raised in a motion in arrest of judgment.

At sentencing, Avalos expressed for the first time to and through his 

attorney that he wished to withdraw his plea. No motion in arrest of judgment 

had been filed. The district court continued sentencing and appointed new 

counsel. Avalos’s new counsel filed a motion in arrest of judgment, claiming 

Avalos’s original counsel “informed Defendant he would not be sentenced to 

prison and would receive probation.” Thus, Avalos claimed, his plea was not 

knowing and voluntary. Avalos’s new counsel had filed the motion in arrest of 

judgment prior to reviewing the transcripts of the plea colloquy. After he did so, 

he filed a motion to dismiss (i.e. withdraw) the previous motion in arrest of 

judgment because it was meritless. The district court acknowledged counsel’s 

request to dismiss the motion in arrest of judgment in open court and on the 

record at the sentencing hearing. Avalos did not comment at that time or during 

his allocution about the motion in arrest of judgment or its withdrawal.

Avalos now claims on direct appeal his second counsel rendered 

ineffective assistance because counsel failed to object to the district court’s 

failure to confirm with Avalos his wish to dismiss the motion in arrest of 
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judgment.1 We review ineffective-assistance claims de novo. State v. Clay, 824 

N.W.2d 488, 494 (Iowa 2012). The record is adequate to resolve this issue on 

direct appeal. See id. Avalos must show (1) his second counsel failed to 

perform an essential duty and (2) the failure resulted in prejudice. See id. at 495. 

If he cannot prove either prong, his claim fails. See id. Counsel has no duty to 

raise an issue that has no merit. State v. Fountain, 786 N.W. 260, 263 (Iowa 

2010).

Avalos cites no authority for his proposition that the district court was 

required to confirm with him personally—not through his attorney—that he 

wished to dismiss his motion in arrest of judgment. He argues we should hold 

the district court to such a requirement by analogy to other unrelated 

requirements: Avalos’s right to address the court at sentencing, the requirement 

that the court engage in a colloquy before accepting a guilty plea, and a 

defendant’s right to be present at all important stages of trial proceedings against 

him. See Iowa Rs. Crim. P. 2.8(2)(b), 2.23(3)(d), 2.27(1). However, Avalos’s 

citation to these procedural requirements does not persuade us there is an 

additional tacit procedural requirement such as the one he asserts in this case.

The district court was not required to ask Avalos directly his thoughts on 

the motion to dismiss the prior motion in arrest of judgment. His second counsel 

was therefore under no duty to raise an objection.

AFFIRMED.

 

1 Avalos notably does not claim that his first counsel rendered ineffective assistance by 

misrepresenting his potential sentence, nor does he claim his second counsel rendered 

ineffective assistance in moving to dismiss the motion in arrest of judgment without his

consent.