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IN THE COURT OF APPEALS OF IOWA No. 2-294 / 11-0993 Filed June 13, 2012

CURTIS CASTOR, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Paul L. Macek, Judge.

Curtis Castor appeals the postconviction court's dismissal of his postconviction action. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, Michael J. Walton, County Attorney, and Rob Cusack, Assistant County Attorney, for appellee State.

Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ.

2 DOYLE, J. Curtis Castor appeals following the denial of his application for postconviction relief. We affirm the judgment of the postconviction court and preserve his ineffective-assistance-of-postconviction relief counsel claim for further proceedings. I. Background Facts and Proceedings. We filed our opinion in this case on May 9, 2012, but subsequently granted Castor's petition for rehearing. Our May 9 opinion was vacated and our opinion filed May 23, 2012, replaced it. We subsequently granted Castor's

second petition for rehearing. Our May 23 decision is therefore vacated, and this decision replaces it. In December 2007, Curtis Castor was charged with sexual abuse in the third degree. He entered into a plea agreement with the State and pled guilty as charged under Iowa Code section 709.4(2)(c)(4) (2007), a non-forcible felony. Castor was sentenced to prison not to exceed ten years, and the sentence was suspended. He was placed on probation for a period of three years. As

conditions of probation, Castor was required to complete an in-patient treatment program and then complete the program at the Residential Correctional Facility (RCF). In November 2008, Castor's probation officer filed a report of nume rous probation violations by Castor, and the State subsequently sought to have Castor's probation revoked. Following a hearing, the district court found Castor "willfully violated the terms of his probation as set forth in the report of violation ."

3 The court revoked Castor's probation and ordered him to serve a prison term not exceeding ten years, "[p]ursuant to the judgment previously entered." Neither the probation revocation nor the sexual abuse sentence was directly appealed by Castor. In May 2010, Castor filed an application for

postconviction relief (PCR). He asserted, through his PCR counsel, that his trial counsel provided him ineffective assistance in four respects, all related to his guilty plea. The PCR court determined his claims were without merit and

dismissed his application. Castor appeals. He now, for the first time, contends his PCR counsel was ineffective in failing to challenge the district court's "abuse of discretion" in revoking his probation and imposing his original sentence. II. Scope and Standards of Review. We normally review PCR proceedings for errors at law. Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010). But when there is an alleged denial of

constitutional rights such as ineffective assistance of counsel, we conduct a de novo review. Id. III. Discussion. To prevail on his newly asserted claim, Castor must prove by a preponderance of the evidence that PCR counsel failed to perform an essential duty and prejudice resulted. Id. at 158. "Under the first prong of this test,

counsel's performance is measured against the standard of a reasonably competent practitioner with the presumption that the attorney performed his duties in a competent manner." State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (internal quotation marks omitted). In order to establish prejudice, Castor

4 must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Brubaker, 805 N.W.2d 164, 174 (Iowa 2011) (citation omitted). Here, the State asserts that PCR counsel's failure to challenge the probation revocation and imposition of the prison sentence may have been a trial strategy. We do not know, as the issue was not asserted in the PCR application, was not defended by PCR counsel, and was not decided by the PCR court. An adequate record is important because "[i]mprovident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981). State v.

Although Castor concedes "[a] fair reading of the record demonstrates [he] committed rule violations and, therefore, violated the conditions of his probation," he nevertheless asserts that "[h]ad PCR counsel raised and litigated this issue [in the PCR proceedings before the PCR court], the PCR court would have found that the district court abused its discretion in revoking Castor's probation and he would have been released to probation supervision." We are not mind readers; we are an intermediate appellate court. Iowa Code

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