IN THE SUPREME COURT OF IOWA 

No. 85 / 07–0566 

Filed September 19, 2008 

GARY KIRCHNER, 

 Appellant, 

vs. 

STATE OF IOWA, 

 Appellee. 

 

On review from the Iowa Court of Appeals. 

 Appeal from the Iowa District Court for Ida County, James D. 

Scott, Judge. 

 On further review of a decision of the court of appeals, a postconviction relief applicant challenges the denial of his ineffectiveassistance-of-counsel claim. AFFIRMED. 

 Martha M. McMinn, Sioux City, for appellant. 

Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson and 

Robert P. Ewald, Assistant Attorneys General, and Kristal L. Phillips, 

County Attorney, for appellee. 
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HECHT, Justice. 

 This case presents a question of whether an attorney provided 

ineffective assistance to a client who rejected the State’s offer of a plea 

bargain in a class “A” felony case. We conclude the district court and the 

court of appeals correctly concluded the client failed to prove he suffered 

prejudice as a consequence of his attorney’s advice, and therefore affirm 

the denial of the request for post-conviction relief. 

I. Factual and Procedural Background. 

In late 1996 Gary Kirchner was charged with two counts of firstdegree burglary, criminal mischief, domestic abuse assault, and firstdegree kidnapping. The charges resulted from an incident in which 

Kirchner transported his estranged wife to remote areas, beat her with a 

tire iron, and otherwise physically and sexually abused her. The firstdegree kidnapping charge carried a mandatory life sentence without 

parole. Iowa Code §§ 710.2, 902.1 (1995). 

 Prior to trial, the county attorney sent a letter to Kirchner’s defense 

attorney, Gregory Jones, detailing an offer for Kirchner to plead guilty to 

one count of second-degree kidnapping, one count of second-degree 

burglary, and one count of third-degree sexual abuse. The plea offer 

provided for a twenty-five year prison sentence. The county attorney 

acknowledged in the letter that his “prior experience with Mr. Kirchner 

suggests that he will not reasonably consider any plea proposal short of a 

dismissal.” Jones forwarded the offer to Kirchner, who was out on bail, 

and asked Kirchner to meet him at the Ida County courthouse to discuss 

the offer. Kirchner did not show up for the meeting. 

Jones’s investigator later located Kirchner at Kirchner’s parents’ 

home in Correctionville. When the investigator communicated the offer 

to him, Kirchner replied, “[F]uck that anyway, I am not taking any plea 
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offer.” When Jones later discussed the possibility of a plea deal with 

Kirchner prior to trial, Jones encouraged Kirchner to accept the twentyfive-year offer. Kirchner flatly rejected the offer and the case proceeded 

to trial in October 1997. 

During the early stages of the trial, Kirchner exhibited bizarre 

behavior. He threatened his wife upon the completion of her testimony, 

became very agitated, and intermittently fell asleep. This conduct led 

Jones to request a mistrial on the ground Kirchner was mentally unfit to 

continue. A mistrial was ordered after Kirchner was found incompetent 

to stand trial as a consequence of psychosis related to chronic 

methamphetamine use. Kirchner was found to have regained 

competency, however, approximately one month later. 

Prior to the commencement of Kirchner’s trial in January 1998, 

the State informally offered to allow Kirchner to plead to “just about 

anything” that would result in a prison term, including a class “D” felony. 

Kirchner again rejected the offer and the case proceeded to trial.1 Before 

the trial began the district court held an ex parte hearing regarding 

Kirchner’s request for a new attorney. During the hearing, Kirchner 

repeatedly accused Jones of working with the prosecutor and others 

against him and professed his innocence of the charges. The court 

ultimately denied Kirchner’s request for a new attorney. The jury found 

Kirchner guilty on all counts. Because he was found guilty of the firstdegree kidnapping charge, Kirchner was sentenced to life in prison 

without the possibility of parole. The court of appeals affirmed the 

convictions on direct appeal. State v. Kirchner, 600 N.W.2d 330 (Iowa Ct. 

App. 1999). 

 1Kirchner’s ineffective-assistance-of-counsel claim relates only to trial counsel’s 

advice in connection with the twenty-five-year plea offer. 
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 Kirchner filed a post-conviction-relief action, contending trial 

counsel rendered ineffective assistance by erroneously advising him as to 

the strength of the State’s case on the kidnapping charge, and asserting 

counsel’s erroneous advice caused him to reject the twenty-five-year plea 

offer. Kirchner testified Jones informed him the case was circumstantial 

and that Jones believed they could prevail. Kirchner also presented the 

deposition testimony of his sisters, Michelle Kline and Debra Sundene, 

and his mother, Thelma Kirchner. Michelle, Debra, and Thelma were 

present on some occasions when Kirchner met with Jones before trial. 

Each of these witnesses testified Jones stated the State’s case was not 

very strong because there were no fingerprints linking Kirchner to the 

crime scenes and the case was otherwise based on circumstantial 

evidence. 

Jones offered the following recollection of his advice to Kirchner 

regarding the relative strength of the State’s evidence on the charges: 

The kidnapping was what I believed before both trials was 

the weakest of the State’s claims, and that was largely 

because of the facts that I thought might support the fact 

that this woman was voluntarily with her husband, but – 

and I may have suggested that to them, that that might be 

the weaker part of it. 

Despite his assessment that the State’s case on the kidnapping charge 

was perhaps less strong than the evidence supporting the other charges, 

Jones believed Kirchner’s wife was a good and credible witness, and he 

advised Kirchner to accept the plea offer calling for a prison sentence of 

twenty-five years. Kirchner does not deny he was advised by counsel to 

accept the State’s plea offer. 

The district court denied Kirchner’s claim for post-conviction relief, 

finding “Jones clearly informed Kirchner of the strengths and 
5

weaknesses of the State’s case.” The district court also found Kirchner 

failed to demonstrate prejudice resulting from Jones’s allegedly 

erroneous advice. Kirchner appealed from the district court’s adverse 

post-conviction ruling, and we transferred the matter to the court of 

appeals for decision. 

The court of appeals did not address whether Jones breached a 

duty owed to Kirchner, but it affirmed the district court’s conclusion 

Kirchner failed to demonstrate prejudice resulting from any claimed 

breach of duty owed by Jones to Kirchner. Kirchner v. State, 2007 WL 

4197129 at *2–3 (Iowa Ct. App. Nov. 29, 2007). We granted further 

review. 

II. Scope of Review. 

 We review ineffective-assistance-of-counsel claims de novo. State 

v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008). To establish an ineffectiveassistance-of-counsel claim, an applicant must demonstrate by a 

preponderance of the evidence “(1) his trial counsel failed to perform an 

essential duty, and (2) this failure resulted in prejudice.” State v. Straw, 

709 N.W.2d 128, 133 (Iowa 2006). “The court need not address both 

components if the [applicant] makes an insufficient showing on one of 

the prongs.” Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995); 

State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999) (noting we may affirm the 

rejection of an ineffective-assistance-of-counsel claim if either element is 

lacking). The two-pronged analysis applies to ineffective-assistance 

claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57, 

106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 209 (1985) (quoting Strickland v. 

Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2065, 2068, 80 

L. Ed. 2d 674, 694, 698 (1984)); Straw, 709 N.W.2d at 135–36. 
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III. Discussion. 

A. Applicable Legal Standard. The district court and the court 

of appeals applied a subjective standard in the determination of whether 

Kirchner met his burden to prove by a preponderance of the evidence 

that he would have accepted the plea deal if he had been properly 

advised by his counsel. Kirchner urges us to conclude prejudice must 

instead be measured by an objective standard—whether a reasonable 

person would have accepted or rejected the plea offer if correctly advised 

by defense counsel. 

 The Supreme Court first held the two-part Strickland test applied 

to claims of ineffective assistance arising out of the plea process in Hill v. 

Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203. In Hill, the 

Court stated the prejudice inquiry “focuses on whether counsel’s 

constitutionally ineffective performance affected the outcome of the plea 

process.” Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d. at 210. Strickland

requires an ineffective-assistance-of-counsel claimant to demonstrate 

actual prejudice. Strickland, 466 U.S. at 693, 104 S. Ct. at 2067, 80 

L. Ed. 2d at 696. This actual prejudice requirement has led courts to 

hold that in order to prove prejudice, an applicant who previously 

rejected a plea offer in favor of going to trial “must show that, but for 

counsel’s advice, he would have accepted the plea.” Engelen, 68 F.3d at 

241. The applicant “must present some credible, non-conclusory 

evidence that he would have pled guilty had he been properly advised.” 

Id. 

We conclude the objective standard proposed by Kirchner for the 

measurement of prejudice would undermine Strickland’s requirement 

that the applicant demonstrate counsel’s unprofessional errors “actually

had an adverse effect on the defense.” Strickland, 466 U.S. at 693, 104 
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S. Ct. at 2067, 80 L. Ed. 2d at 696 (emphasis added). It would allow a 

defendant who claimed innocence and flatly rejected all advice of his 

counsel to accept a reasonable plea bargain to nonetheless claim the 

benefit of what a reasonable person would have done under the 

circumstances. Our rejection of the proposed objective standard is 

consistent with the court’s analysis in Hill. In that case the Court 

rejected the habeas petitioner’s claim because he failed to allege that had 

counsel’s advice on the plea offer been accurate, his decision regarding 

whether to accept the plea offer would have been different. Hill, 474 U.S. 

at 60, 106 S. Ct. at 371, 88 L. Ed. 2d at 210. The Court did not consider 

whether, assuming accurate advice from counsel, a “reasonable 

defendant” would have accepted the plea offer. Instead, it looked to 

whether the petitioner had alleged “special circumstances that might 

support the conclusion that he placed particular emphasis” on the 

erroneous advice. Id. Our reading of Hill and the decisions of other 

courts who have addressed this issue finds no support for the 

application of an objective standard. See, e.g., Wanatee v. Ault, 259 F.3d 

700, 704 (8th Cir. 2001) (“Wanatee II”); Engelen, 68 F.3d at 241 (stating a 

petitioner must present some “credible, non-conclusory evidence that he 

would have pled guilty had he been properly advised” to command an 

evidentiary hearing). 

Kirchner cites only one judicial decision adopting an objective 

standard such as he proposes, Wanatee v. Ault, 101 F. Supp. 2d 1189 

(N.D. Iowa 2000) (“Wanatee I”). On direct appeal in that case, however, 

the Eighth Circuit Court of Appeals expressly disavowed the district 

court’s purported application of an objective prejudice standard. 

We recognize that the district court purported to apply an 

“objective” standard in analyzing whether Wanatee would 

have accepted the plea offer had he been properly advised. 
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Although we think that the inquiry into what Wanatee would 

have done under different circumstances is necessarily 

subjective, we believe it is clear from the district court’s 

opinion that the court actually applied a subjective analysis. 

Wanatee II, 259 F.3d at 704. The court’s conclusion in Wanatee II the 

proper standard was a subjective one was consistent with its earlier 

statement in Engelen that the claimant “must show that, but for 

counsel’s advice, he would have accepted the plea.” Engelen, 68 F.3d at 

241 (emphasis added). Accordingly, we hold a subjective standard for 

the measurement of prejudice shall be applied in the determination of 

whether a defendant would have accepted a plea offer and received a 

lesser sentence but for the ineffective assistance of counsel. 

B. Analysis. We now turn to the question of whether Kirchner 

is entitled to relief under the applicable subjective standard. The thrust 

of Kirchner’s ineffective-assistance argument is that counsel’s allegedly 

erroneous advice made the twenty-five-year plea offer appear far less 

advantageous than it actually was, and induced Kirchner to reject it. On 

de novo review, we reject Kirchner’s claim that Jones misrepresented the 

strength of the State’s case on the kidnapping charge by characterizing it 

as “weak.” We find the assessment of the State’s case provided by Jones 

to Kirchner merely communicated Jones’s professional opinion that the 

evidence supporting the kidnapping charge was less compelling than the 

evidence supporting the other charges. Jones did not believe the State’s 

kidnapping case was weak, and he did not advise Kirchner to go to trial 

on that or any other charge. Our finding on this point is supported by 

the uncontroverted evidence that Jones advised Kirchner to accept 

(1) the plea offer that would have resulted in a prison sentence of twentyfive years, and (2) the prosecutor’s subsequent informal proposal 

contemplating a plea to a class “D” felony. Jones gave this advice 
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because he believed the evidence supported Kirchner’s conviction on the 

serious charges including first-degree kidnapping. 

 Kirchner offered no evidence to support his self-serving statement 

that he would have accepted the plea deal had he known the great 

likelihood of his conviction of first-degree kidnapping. Wanatee I, 101 

F. Supp. 2d at 1204 (stating ineffective-assistance claimant must make 

prejudice showing with something more than self-serving statements). 

Indeed, the only evidence in the record speaking to the likelihood of 

Kirchner accepting the twenty-five-year plea offer overwhelmingly 

establishes Kirchner would not have accepted it regardless of counsel’s 

advice. 

In making the plea offer, the assistant county attorney noted his 

prior dealings with Kirchner led him to believe Kirchner was not likely to 

reasonably consider or accept any plea offer. The response made by 

Kirchner to the proposal conformed to the prosecutor’s expectations. 

After failing to show up at a scheduled meeting with Jones to discuss the 

plea deal, Kirchner was located by Jones’s investigator. Kirchner 

immediately and summarily rejected the notion of taking any plea offer. 

Kirchner again rebuffed the proposed plea bargain immediately prior to 

trial when he rejected Jones’s advice to accept the twenty-five-year plea 

offer. 

Kirchner’s mother and sister testified Kirchner professed his 

innocence of the charges when the plea deal was offered, and 

unequivocally rejected the offer. Kirchner’s own testimony establishes 

that when he rejected the twenty-five-year plea offer, he believed Jones, 

the judge, and the prosecutor were all “in cahoots” with one another. 

Even after the first trial ended in a mistrial and Kirchner was found to 

have regained competency to stand trial, he rejected Jones’s advice to 
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accept an offer of an even more advantageous plea bargain. The evidence 

clearly establishes Kirchner was unwilling to plead guilty to any offense. 

Each time he was approached with the prospect of a guilty plea, Kirchner 

abruptly and boisterously rejected it, claiming he had committed no 

crime. Even when Jones advised him to take a plea offer that would 

eliminate all risk of a life sentence and result in a prison term of up to 

five years, Kirchner summarily rejected it on the ground that he was 

guilty of no crime. Our rejection of the objective standard for the 

measurement of prejudice appropriately denies defendants like Kirchner, 

who unreasonably deny guilt of any criminal offense, flatly reject all plea 

offers, and take their chances on the outcome of a trial, the retroactive 

conferral of the status of “reasonable defendants” and the opportunity for 

a “do-over.” The record in this case provides no credible factual basis to 

support a finding that Kirchner would have accepted the State’s plea 

offer if Jones had characterized differently the likelihood of a conviction 

on the first-degree kidnapping charge. 

Accordingly, Kirchner has failed to demonstrate prejudice. 

IV. Conclusion. 

The district court and the court of appeals correctly found Kirchner 

failed to establish prejudice resulting from counsel’s allegedly erroneous 

advice. We therefore affirm the denial of Kirchner’s petition for postconviction relief. 

AFFIRMED. 

All justices concur except Streit and Baker, JJ., who take no part.