IN THE COURT OF APPEALS OF IOWA

No. 21-0096

Filed February 22, 2023

ROBERT JOHN THEDE,

Applicant-Appellant/Cross-Appellee,

vs.

STATE OF IOWA,

Respondent-Appellee/Cross-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Tama County, Chad Kepros, Judge.

Applicant appeals the district court decision denying his request for 

postconviction relief. The State cross-appeals the court’s grant of relief on a 

sentencing issue. AFFIRMED ON APPEAL; REVERSED AND REMANDED ON 

CROSS-APPEAL.

Chad R. Frese of Kaplan & Frese, LLP, Marshalltown, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney 

General, for appellee State.

Considered by Vaitheswaran, P.J., Schumacher, J., and Carr, S.J.* 

Chicchelly, J., takes no part.

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2023).
2

CARR, Senior Judge.

Robert Thede appeals the district court decision denying his request for 

postconviction relief (PCR). The State cross-appeals the court’s grant of relief on 

a sentencing issue. Thede has not shown he received ineffective assistance 

because defense counsel did not adequately explain to him the rights he was 

giving up by waiving his right to a jury trial or because defense counsel did not fully 

advise him regarding a proposed plea agreement where he would have pled guilty 

to indecent exposure. We find Thede did not prove he was prejudiced by his 

counsel’s failure to object during the sentencing hearing and reverse the PCR 

court’s grant of relief on that ground.

I. Background Facts & Proceedings

The background facts of this case are adequately set out in State v. Thede, 

No. 15-0751, 2016 WL 5930417, at *1 (Iowa Ct. App. Oct. 12, 2016), and will not 

be repeated here. In FECR014046, following a bench trial, Thede was convicted 

of sexual abuse in the third degree, in violation of Iowa Code section 709.4(2)(c)(3) 

(2013); indecent exposure, in violation of section 709.9; and incest, in violation of 

section 726.2. Thede’s convictions were based on his conduct with his teenage 

granddaughter. “The district court imposed indeterminate sentences of ten years, 

five years, and one year to run concurrently with each other but consecutively to 

the thirty-year term Thede faced on other matters.” Thede, 2016 WL 5930417, 

at *1. Thede’s conviction was affirmed on appeal. Id. at *5.

In the same time period of the criminal prosecution in FECR014046, Thede 

was facing criminal charges in two other cases. In FECR014040, Thede was 

convicted of distribution of a controlled substance to a minor. He was sentenced 
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to a term of imprisonment not to exceed twenty-five years, to be served 

consecutively to the sentence imposed in FECR014045. In FECR014045, Thede 

was convicted of willful injury causing bodily injury to a different granddaughter. 

He was sentenced to a term of imprisonment not to exceed five years, to be served 

consecutively to his sentence on the conviction for distribution of a controlled 

substance to a minor.

On February 16, 2017, Thede filed an application seeking PCR for his 

convictions in FECR014046. He claimed he received ineffective assistance 

because defense counsel (1) did not adequately explain the rights he was giving 

up when he waived his right to a jury trial, (2) failed to adequately urge him to 

accept a beneficial plea agreement, and (3) did not correct a district court 

misstatement during the sentencing hearing.1

A hearing was held on December 2, 2020. Thede testified that in 

FECR014040, he was convicted of giving a marijuana joint to his granddaughter, 

who was also the victim of the third-degree sexual abuse conviction. He testified 

that the two incidents—distribution of marijuana and third-degree sexual abuse—

took place on the same day. Thede claimed the sentencing court mistakenly 

believed there were two different victims for these offenses and ordered the 

sentences to run consecutively, rather than concurrently. He stated that he 

received ineffective assistance because defense counsel did not object to the 

court’s erroneous statement the two cases had two different victims.

1 Thede also claimed defense counsel did not adequately investigate the case or 

properly impeach the State’s witnesses. These issues have not been raised on 

appeal.
4

Thede testified defense counsel recommended a bench trial because “the 

judge is going to be bound by law to make his decision, as to where a jury would 

rule on emotion.” He stated defense counsel spent about ten minutes talking about 

waiving his right to a jury trial. Thede additionally testified that defense counsel 

presented a plea agreement to him that would have involved pleading guilty to 

indecent exposure rather than third-degree sexual abuse. Thede refused the offer 

because he did not believe there was evidence of sexual motivation. He claimed 

defense counsel did not explain the penalties he would be facing if he accepted 

the plea offer.

Defense counsel testified he did not recall there was an issue regarding 

Thede being sentenced to consecutive sentences on a mistaken assumption there 

were multiple victims. Defense counsel stated he discussed with Thede the plea 

offer, including the sentence for indecent exposure. He testified:

[The prosecutor] was not willing to—she wanted Mr. Thede to be a 

sex offender, and so there was no sort of agreement that she was 

willing to make where he was not a sex offender. He was not willing 

to do that, and so, yes, we were then going to proceed to trial.

Defense counsel testified he advised Thede to waive his right to a jury trial based 

on the factual circumstances of the case, including the fact that the victim was 

Thede’s granddaughter.

The district court noted Thede signed a written waiver of his right to a jury 

and the court engaged him in a colloquy about the waiver before the bench trial 

began. The court found “counsel’s suggestion that Thede waive jury represented 

a reasonable strategy.” The court also found, “Thede was able to verbalize the 

reasoning for the choice to waive jury, and it is clear to the Court that Thede 
5

understood that choice then and now.” The court determined Thede did not show 

he received ineffective assistance of counsel on this issue.

Prior to Thede’s criminal trial, the State made a record of a plea offer made 

to Thede, which was that in exchange for a guilty plea to third-degree sexual abuse 

the other charges would be dismissed. Thede rejected the offer on the record, 

stating he wished to go to trial. In addition, both Thede and defense counsel 

testified to a different offer that would involve pleading guilty to indecent exposure. 

The PCR court found:

Thede might regret his choice now, but offers were relayed to Thede 

by his attorney, Thede had a sufficient understanding of the offers 

made, and Thede rejected the offers. 

The Court finds that Thede’s claim of ineffective assistance of 

counsel in relation to the plea offers is without merit and should be 

denied.

In the PCR ruling, the court determined the district court was in error when 

stating the conviction for distribution of marijuana to a minor had a different victim 

than the convictions in this case. The court noted the court did not give any 

additional reasons for consecutive sentences. “The Court clearly and 

unequivocally stated that it was running its sentence consecutive to the sentence 

in FECR014040 because FECR014046 and FECR014040 involved different 

victims.” The court determined the case should be remanded for resentencing.

Thede appealed the district court’s ruling on his PCR application. The State 

cross-appealed, claiming the PCR court erred in finding Thede’s defense counsel 

was ineffective for failing to object to a misstatement of fact in the sentencing 

court’s explanation of reasons for making the sentences in this case consecutive 

to a sentence in a different case.
6

II. Standard of Review

Generally, PCR proceedings are reviewed for the correction of errors at law.

Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017). If a claim involves a fundamental 

constitutional right, however, such as the effective assistance of counsel, our 

review is de novo. Id. “On de novo review, ‘we give weight to the lower court’s 

findings concerning witness credibility,’ [b]ut we are not bound by the lower court’s 

determination.” Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021) (citations 

omitted).

III. Ineffective Assistance

In order to show ineffective assistance of counsel, Thede must show both 

a breach of an essential duty by counsel and prejudice “sufficient to undermine our 

confidence in the outcome.” See State v. Swift, 955 N.W.2d 876, 881 (Iowa 2021). 

“We presume counsel performed competently unless the claimant proves 

otherwise by a preponderance of the evidence. Counsel’s performance is 

measured objectively against the prevailing professional norms after considering 

all the circumstances.” State v. Booth-Harris, 942 N.W.2d 562, 577 (Iowa 2020)

(citation omitted). Prejudice requires a showing that but for counsel’s 

unprofessional errors, “the result of the proceeding would have been different.” 

Strickland v. Washington, 466 U.S. 668, 694 (1984).

A. Thede claims he received ineffective assistance because defense 

counsel did not adequately explain to him the rights he was giving up by waiving 

his right to a jury trial. He contends defense counsel did not spend enough time 

counseling him regarding the defense of the case.
7

On October 30, 2014, Thede signed a written waiver of his right to a jury 

trial. The document states, “I have been fully advised of my statutory and 

Constitutional rights to a trial by jury and the ramifications of waiving the same by 

my attorney.” Immediately before trial began on November 17, the court engaged 

in a colloquy with Thede regarding the waiver of his right to a jury trial.2 At the end 

of the colloquy, the court stated, “I do find that that waiver is a knowing and 

voluntary and intelligent choice.” The record does not support Thede’s claim that 

he was not advised of the rights he was giving up by waiving his right to a jury trial.

In Osborn v. State, an applicant claimed “trial counsel was ineffective in 

advising him to waive a jury trial.” 573 N.W.2d 917, 924 (Iowa 1998). Defense 

counsel responded that he recommended waiving a jury trial due to “the nature of 

the act and the potential for a life sentence.” Defense counsel testified he 

discussed the issue with Osborn and they concluded they “might get a fairer shake 

with a judge rather than a jury.” Id. The Iowa Supreme Court concluded, “Tactical 

decisions such as this are immune from subsequent attack by an aggrieved 

defendant claiming ineffective assistance of counsel.” Id.

During the PCR hearing, both Thede and defense counsel testified to the 

reasons a bench trial was preferable to a jury trial based on the factual 

circumstances surrounding the offenses. Thede testified, “All we talked about was 

we’d have a better chance with a judge because he would have to base his ruling 

2 The court reviewed the offenses being charged and the potential penalties for 

those offenses. The court told Thede that instead of having twelve jurors decide 

the case, the court would decide whether Thede was guilty or not guilty. Thede 

stated that he understood the rights he was giving up.
8

on law, or he’s bound to base it—he’s supposed to base it on law anyway.” 

Defense counsel stated:

I probably told him then the same thing that I would tell him now, that 

I don’t think a jury would like to hear some of the allegations that were 

made even though they more or less, you know, may not be what he 

was charged with regards to drinking and drugs, and that there were 

a lot of unsavory things that were unrelated to the question about 

whether or not he was actually guilty of these offenses. And I believe 

that a jury would look—it would be extremely prejudicial and it would 

look not very favorably on him, and would be more inclined to convict 

him based upon the type of character that he had than whether or 

not he actually broke the law.

We find Thede has not shown he received ineffective assistance based on 

defense counsel’s advice to waive the right to a jury trial and instead proceed with 

a bench trial. Generally, tactical decisions such as the decision to advise waiving 

the right to a jury trial “are immune from subsequent attack by an aggrieved 

defendant claiming ineffective assistance of counsel.” See id.

B. Thede contends he received ineffective assistance because defense 

counsel did not fully advise him regarding a proposed plea agreement where he 

would have pled guilty to indecent exposure. He states that if he had known of the 

penal consequences for a conviction of indecent exposure, which is one year in 

jail, he could have been convinced to accept the plea. See Iowa Code § 903.1. 

Thede asserts there was also a plea proposal for a guilty plea to indecent contact 

with a child, which carries a penalty of a term of imprisonment not to exceed two 

years. See id. Thede claims defense counsel should have saved him from himself 

by advocating more vigorously for the plea agreements.

At the PCR hearing, Thede stated defense counsel discussed an offer to 

plead guilty to indecent exposure. Thede testified:
9

[E]ven just indecent exposure requires a sexual motivation or some 

type of sexual-related element. And I said, well, there’s nothing 

sexually related about this haircut and this body shave. I said, I don’t 

want to go to trial—or, I mean, I don’t want to be pleading to 

something that I didn’t do.

When asked again about the plea offer, Thede stated, “No, there was no sexual 

gratification. That’s why I didn’t take the plea.” Defense counsel stated, “[T]here 

was no sort of agreement that [the prosecutor] was willing to make where he was

not a sex offender. He was not willing to do that, and so, yes, we were then going 

to proceed to trial.”

The evidence does not support Thede’s claim that he refused the plea 

agreement due to ineffective assistance of counsel. Thede testified that he refused 

the plea agreement because he did not want to plead guilty to a sexual offense. 

Defense counsel also testified that Thede was not willing to plead guilty to an 

offense where he would be a sex offender. We conclude Thede has not shown he 

received ineffective assistance from defense counsel.

IV. Cross-Appeal

During the sentencing hearing for this case, FECR014046, the district court 

stated:

The Court also orders that the sentences imposed here today be 

served concurrently with each other but consecutively with that 

imposed in FECR014040.[3] The reasons for that part of the 

sentence is the fact that the events that took place are all part of one 

continuous transaction. However, they should be consecutive 

because it involves another victim from the victim in 14040 and 

involved aggravated circumstances with another young person.

3

In FECR014040, Thede was convicted of distribution of a controlled substance 

to a minor. 
10

In this PCR action, Thede claimed the district court misstated the facts when 

it found FECR014046 and FECR014040 involved two different victims. He testified 

at the PCR hearing that the cases involved the same victim, his granddaughter, 

T.T. He also testified that the two offenses occurred on the same day. Thede 

asserted that he received ineffective assistance because defense counsel failed 

to object to the sentencing court’s misstatement that led to the imposition of 

consecutive sentences.

The PCR ruling states:

The reality is that the Court was in error. The minor in 

FECR014040 to whom Thede distributed marijuana was his 

granddaughter, T.T. No other victim was identified in FECR014040.

The person who Thede committed a sex act upon for purposes of the 

conviction for Sexual Abuse in the Third Degree, the person he 

committed incest with, and the person to whom he exposed himself 

in FECR014046 is also his granddaughter, T.T. In addition, the

offenses in FECR014046 and FECR014040 occurred on the same 

date.

The court concluded Thede received ineffective assistance because defense 

counsel did not object or correct the court’s misunderstanding. The PCR court 

determined Thede should be resentenced. 

The State cross-appeals on this issue. It claims the PCR court improperly 

found Thede received ineffective assistance during the sentencing hearing. The 

State asserts the PCR court made an error, not the sentencing court. It also 

asserts the court improperly presumed prejudice.
11

The trial information4for FECR014046 alleged Thede committed sexual 

abuse in the third degree on or about September 18, 2013, against T.T. and 

indecent exposure on the same date against the same victim. The trial information 

was later amended to include a charge of incest, alleged to have occurred on or 

about the same date against T.T. Following a bench trial, the court found Thede 

guilty of the charges. The court’s written ruling discussed only the charges 

involving T.T.

The trial information in FECR014040 alleged Thede distributed a controlled 

substance, marijuana, to a person or persons under age eighteen on or about 

September 18, 2013. The trial information did not specify the individuals involved,

but the minutes of testimony state both T.T. and C.Q. would testify Thede provided 

marijuana to them. Thede pled guilty to the offense. At the plea hearing, the 

prosecutor stated, “[T]his plea agreement does not include any charges relative to 

a named victim with the initials T.T.” Thede told the court the minutes of testimony 

were substantially correct.

Thede was charged with willful injury causing serious injury, also against

C.Q., in FECR014045. He pled guilty to the lesser offense of willful injury causing 

bodily injury along with the delivery of a controlled substance to minors in a 

combined proceeding. He was sentenced to five and twenty-five years 

respectively, to be served consecutively. This sentence was entered before the 

sentencing proceeding now before us. 

4 Some confusion may have arisen because one trial information was used for 

FECR014046 and FECR014045. The charges in FECR014045 involve events on 

August 27, 2012, against another granddaughter, C.Q. Trial on the charges 

involving T.T. were bifurcated from the charges involving C.Q.
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At the sentencing hearing case in FECR014046, the prosecutor agreed that 

the sentences for crimes against T.T. should run concurrently with each other, but 

argued that they should be run consecutively to the “sentences previously imposed 

in matters relating to drug crimes and the offense against [C.Q.].”

After hearing a victim impact statement, argument from defense counsel,

and Thede’s allocution, the trial court passed the sentence now under examination. 

The trial court’s conclusion to impose a consecutive sentence adopted the 

argument advanced by the prosecutor. The reference to a young person other 

than T.T. and to aggravated circumstances could be understood only to apply to 

C.Q. The trial court’s reference to case FECR014040 was also correct in part. 

The drug charge involved C.Q, and possibly others. C.Q. is listed in the minutes 

of testimony for FECR014040 as having received marijuana from Thede. The fact 

that the willful injury against her was alleged under another case number that the 

court did not mention strikes us as at most a minor omission. The willful injury 

sentence had already been combined with and made consecutive to the drug 

charge identified in case FECR014040. All present would have understood the 

court’s intent. The fact that no one before the court rose to object fortifies this 

observation. Had anyone done so, it is evident the court would have included the 

case number for the willful injury charge. 

When considering whether the elements of a claim of ineffective assistance 

of counsel—breach of duty and prejudice—are proven, we think it clear that 

prejudice has not been proven. The PCR court was wrong to conclude otherwise. 
13

We affirm the PCR court on the appeal and reverse and remand the court’s 

decision on the cross-appeal.

AFFIRMED ON APPEAL; REVERSED AND REMANDED ON CROSSAPPEAL.