IN THE COURT OF APPEALS OF IOWA
No. 20

- 0212 Filed March 30, 2022

COBY EUANS, Applicant

- Appellant,

vs. STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________ Appeal from the Iowa District Court for Fayette County, Laura Parrish , Judge.

Coby Euans appeals the denial of his postconviction

- relief application, claiming a breach of an essential duty by trial counsel and , for the first time on appeal, a breach of an essential duty by postconviction counsel

. AFFIRMED.

Thomas M. McIntee, Waterloo, for appellant. Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney General, for appellee State.

Considered by Bower, C.J. , and Vaitheswaran and Schumacher, JJ.2

SCHUMACHER , Judge

. Coby Euans appeals from the denial of his postconviction

- relief (PCR) application. Euan s argues his trial counsel was ineffective in the delivery of recommendations to the court concerning the application of a federal sentencing
order to state court probation revocation proceedings. Euan s , for the first time on appeal, also alleges his PCR c ounsel was ineffective for arguing the court had discretion to choose between consecutive and concurrent sentences under federal
law. Finally, Euan s asserts both trial counsel and PCR counsel were i neffective for failing to obtain a copy of the federal sentencing order. We find neither trial

c ounsel nor PCR counsel breach ed an essential duty. Accordingly, we affirm.
I. Background Facts & Proceedings Euans was convicted in state court on two drug charges in 2013 : possession of marijuana, third offense ; and conspiracy to deliver methamph etamine. He pled guilty and r eceived concurrent five

- and ten

- year

s entences. The sentences were suspended , and Euans was placed on probation.
T he State filed a report of violation of probation in December 2015, based on Euans’s federal con viction for drug trafficking that same year. The federal district court sentenced Euans to sixteen years in prison and ordered the sentence to run consecutively to any sentence yet to be imposed in state court

. 1 Euans’s attor ney did not have a copy of the federal sentencing order at the probation revocation hearing but spoke with Euans’s federal defense counsel and a representative from

1 The fe deral sentencing order is not contained in the record. Both parties agreed at the probation revocation hearing that the order required consecutive sentencing, although Euans now claims such agreement does not reflect the actual order.3

the United States Marshals Servic e, both of who m confirm ed the order provided for consecutive sentences.
Euans admi tted to the probation violation ; however, d isposition on the probation violation was contested. The State argued the state sentences were required to run consecutively pursuant to the federal se ntence

. Euans’s attorney requested concurrent sentencing. Euans’ s attorney also suggested that the court could modify Euan s ’s probation or give Euan s credit for time served. E uans’s
counsel argued :

Your Honor, just briefly, when you’re talking about Section 3584, the position of the United States has been that that section does not authorize a federal sentencing court to order a concurrent or consecutive sentence with a sentence yet to be imposed. Now, I guess it’s

— whether or not the federal court can say co nsecutive or concurrent to that time is up to some interpretation, because he had been sentenced in state court previously but that state sentence had not been imposed. So I would just leave that up to the court. The district court imposed Euans’s origi nal sentence, to be run consecutively to the federal convictions, stating , “ [I] t does appear that the federal government has taken the position that these sentences must be consecutive. I will comply with
t hat . . . . ” Euans filed a PCR application in March 2017, claiming trial counsel was ineffective in failing to argue for concurrent sentences and in failing to argue federal law was not binding on the sta te court

. Euans ’ s PCR counsel argued, “Our position is really two

- fold. One is: It doesn’t matte r what the guidelines from the federal court system say. State court judges apply state law . . .

. And even if [federal law bound state courts], the judge was given misinformation [on what federal law required].” The PCR court denied the application, f inding the trial court record4

supported that trial counsel argued for concurrent s entences and Euans suffered no prejudice. Eu ans appeals

. II. Standard of Review Generally, we review an appeal from a denial of postconviction relief for correction of errors at law. Lamasters v. State , 821 N.W.2d 856, 862 (Iowa 2012). “However, when the applicant asserts claims of a constitutional nature, our review is de novo. Thus, we review claims of ineffective assistance of counsel de novo.” Ledezma v. State , 626 N.W.2d 134, 141 (Iowa 2001) ( int ernal citation omitted).
III. Analysis Euans contends his trial counsel was ineffective for failing to investig ate the federa l sentencing order , as well as for failing to adequately argue for concurrent sentencing. 2 Additionally, he argues PCR counsel was i neffectiv e for failing to investigate the federal sentencing order and for erroneously arguing the court had discretion to order concurrent or consecutive sentences under the federal sentencing guidelines. To prevail on a claim of ineffective assistance of counsel, the applicant must
demonstrate (1) counsel breached a duty and (2) the applicant suffered prejudice.

2 Outside of Euans’s two issues framed for appeal, Euans suggests the district court abused its discretion by basing its sentence entirely on the feder al sentencing order for consecutive sentencing. As to his trial attorney, E u ans failed to raise the matter at the PCR level, so it is unpreserved. Iowa Code § 822.8 (2017) (“All grounds for relief available to [a PCR] applicant under this chapter must be raised in the applicant’s original , supplemental or amended application

. ”); Meier v. Senecaut

, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.”). And Euans has not developed such as part of his argument concerning his assertions in relation to his PCR counsel, so we determine such to be waived. See Iowa R. App. P. 6.903(2)(g)(3).5

L amasters , 821 N.W.2d at 866. The applicant must demonstrate both prongs by a preponderance of the evidence. Ledezma , 626 N.W.2d at 142. “Failure to demonstrate either element is fatal to a claim of ineffective assistance.” State v. Polly , 657 N.W.2d 462, 465 (Iowa 2003). To establish a breach of duty, the applicant must show “the attorney performed below the standa rd demanded of a reasonably competent attorney.”
Ledezma , 626 N.W.2d at 142. “We measure the attorney’s performance against ‘prevailing professional norms.’” Id. (quoting Strickland v. Washington , 466 U.S. 668, 688 (1984)). “[ I ] neffective assistance is more likely to be established when the alleged actions or inactions of counsel are attributed to a lack of diligence as opposed to the exercise of judgment.” Id. We examine each claim in light of the totality of the circumstances. Id.
To demonstrate p rejudice, the applicant “ must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694. “A reasonable probability is a probability suff icient to undermine confidence in the outcome.” Id. Euans’s tr ial counsel did not breach a n essential duty. The S tate argued that a consecutive sentence was required. Euan s ’s counsel originally asked the court “either run these state charges concurrently to his federal charges or modify his probation.” W hen pressed by the court on whether it could override the federal
court orde r, Euan s ’s attorney suggested an alternative w ould be to order no prison
t ime or time served. However, counsel also argued that the “position of the United States has been that that section does not authorize a federal sentencing court to6

order a concurrent or consecutive sentence with a sentence yet to be imposed.” Counsel concluded this explanation by stating, “So I would just leave that up to the court.” Euans’s trial counsel adequately informed the court that it could impose
concurrent sentencing. We will not second

- guess counsel’s reasonable actions. See Lamasters , 821 N.W.2d at 866

. Even if the court erroneously believed it was bound by the federal order, t he court’s alleged improper sentencing decision does not transform counsel’s actions into ineffective assistance. 3
As to Euans’s claim that his trial counse l was ineffective in failing to produce a copy of the federal sentencing order , we find such argument to be unpreserved , as it was neither raised before nor rul ed on by the district court. See Meier , 641 N.W.2d at 537. Euans also argues his PCR counsel was ineffective for failing to investigate
th e federal sentencing order and in erroneously arguing the federal sentencing guidelines gave the court discretion to order consecutive or concu rrent terms. Euans raises his claim of ineffective assistance of PCR counsel for the first time on appeal. If the record is sufficient to allow resolution of a claim of ineffective assistance of PCR counsel raised for the first tim e on appeal , we may addr ess the claim. See Goode v. State , 920 N.W.2d 520, 526

- 27 (Iowa 2018). Here, we
determine the record is s ufficient to decide this issue and proceed accordingly.

3 In deciding this issue, we note that although the S tate argues Euans could have appealed the revocation order, there is not a right to file a direct appeal from a probation revocation proceeding where, as in this case, the applicant was not granted a deferred judgment. State v. Rheuport , 225 N.W.2d 122 , 1 23 (Iowa 1975); cf. State v. Farmer , 234 N.W.2d 89 , 90

- 91 (Iowa 1975).7 Euans’s PCR counsel correctly argued that state court judges are not bound by federal orders. For instance, PCR counsel was clear that , “The sovereignty of the state judicial system is just that. We are not subject to the federal rules for their judges.” Similarly, counsel argued, “It doesn’t matter what the guidelines from the federal court system say. State court judges apply state law.” Thus, PCR counsel correctly argued that the state court was not bound by the federal sentencing order. 4
While counsel did argue that , in the event the federal guidelines apply, they permit either concurre nt or consecutive sentencing, such was an argu ment in the alternative to the primary argument. W e will not secon d

- guess how counsel framed their argument. See L amasters , 821 N.W.2d at 866 (“When counsel makes a reasonable tactical decision, this court will not engage in second

- guessing. Selection of the primary theory or theories of defense is a tactical matter.” (citation
omitted ) ). PCR counsel accurately argue d that the trial court had discretion under state law to impose a concurrent sentence. There was no breach of duty by PCR
counsel. Euans also argues his PCR counsel was ineffective because the federal sentencing order did not provide for consecutive sentences. However, Euans offers nothing beyond this mere allegation . The federal order is absent from the
record. A t the initial probatio n revocation hearing, both the S tate and Euans agreed the federal sentencing order provided for consecutive sentenc es. The

4 The Supreme Court has held that a federal sentencing order does not bind a state court’s discretion in deciding between concurrent and consecutive sentences. See Setser v. United S tates , 566 U.S. 231, 241 (2012).8

burden is on the applicant to demonstrate counsel’s ineffective assistance.
L edezma , 626 N.W.2d at 142. Given the absence of any supporting evidence beyond Euans’s allegations, Euans failed to establish prejudice resulted from the failure of counsel to produce the federal sentencing order

. Lastly, to the extent Euans argues structural error regarding trial counsel and PCR counsel, we determine such was not raised before the PCR court as to
trial counsel

. Additionally, as we find no breach by PCR counsel, we reject the request to find a structural error concerning claims against Euans’s PCR counsel. We affirm the district court’s dismissal of Euans’s PCR application.
For these reasons , we affirm the district court

. AFFIRMED.