Kelly Charles Sand v. State of Iowa

IN THE COURT OF APPEALS OF IOWA No. 22-0523 Filed May 24, 2023 KELLY CHARLES SAND, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Joseph Seidlin, Judge. An applicant appeals the denial of postconviction relief, alleging his plea counsel was ineffective. AFFIRMED. Nathan Olson of Branstad & Olson Law Office, Des Moines, for appellant. Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee State. Considered by Tabor, P.J., Greer, J., and Scott, S.J.* *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2023). 2 TABOR, Presiding Judge. Because his plea counsel did not tell him about a “silent mandatory sentence,” Kelly Sand claims he received ineffective assistance. That claim was the backbone of Sand’s application for postconviction relief (PCR) from six convictions following plea negotiations with the State. He argues sex offender treatment program (SOTP) policies within the Iowa Department of Corrections (DOC) may result in him serving more time and counsel failed to advise him of that likelihood. Finding parole eligibility was not a direct consequence of Sand’s guilty pleas, the district court rejected the ineffective-assistance claim and denied relief. We do the same. I. Facts and Prior Proceedings In 2017, Sand accepted a plea agreement covering two prosecutions. In the first case, the State charged Sand with burglary in the first degree and two counts of harassment in the first degree. The charging documents alleged that after sending his ex-girlfriend, K.D., harassing text messages, Sand broke into her house and brandished a knife. When police found him in a neighboring yard, he threatened to kill the officers. In the second case, the State charged Sand with burglary in the first degree, assault with intent to commit sexual abuse causing bodily injury, willful injury causing bodily injury, enhanced domestic abuse assault, and operating a motor vehicle without the owner’s consent. The charging documents alleged that Sand entered K.D.’s house in violation of a no-contact order. Once inside, he demanded oral sex, began to “rip off her clothes,” and strangled her until she passed out. When she regained consciousness, she fought with him, and he twisted her arm. 3 Eventually, she escaped to a neighbor’s house and called for help. When the police arrived, Sand took her car without permission. Sand worked out a plea agreement with the State to resolve all counts. In both prosecutions, the State amended the burglary charges from first degree to second degree. The State also dismissed the charges of assault with intent to commit sexual abuse and operating a motor vehicle without the owner’s consent. Sand then pleaded guilty to two counts of second-degree burglary, two counts of first-degree harassment, one count of willful injury causing bodily injury, and one count of second-offense domestic abuse assault. See Iowa Code §§ 713.5, 708.7, 708.1 (2017). The district court sentenced him to an indeterminate term of twenty- nine years. Representing himself, Sand filed a PCR application in 2018 that counsel amended in …

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