Opinion
No. 2-696 / 01-1993
Filed January 15, 2003
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Joe Cleary appeals the district court's denial of his postconviction relief action. AFFIRMED.
Frank Burnette II, of Burnette Kelley, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John Sarcone, County Attorney, and Michael Hunter, Assistant County Attorney, for appellee.
Considered by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.
Joseph Cleary appeals a district court ruling denying his postconviction relief application. We affirm.
I. Background Proceedings
A jury found Cleary guilty of second-degree robbery and operating a motor vehicle without the owner's consent for driving off in a car parked at a local convenience store. Our court affirmed the judgment and sentence.
Cleary filed a postconviction relief application. At his hearing, he claimed trial counsel was ineffective in: a) failing to file a motion in limine to exclude his criminal history, b) failing to object to a portion of the prosecutor's closing statements, c) failing to investigate exculpatory witnesses, d) presenting the jury with conflicting alibi evidence, e) questioning the victim on her identification of the perpetrator; and f) failing to explain to Cleary that restitution had been ordered and the amount could be disputed. Cleary also claimed a) trial and appellate counsel were ineffective in failing to object to his sentencing order on the ground it did not mention the eighty-five percent rule and b) newly discovered evidence entitled him to a new trial.
The district court rejected Cleary's ineffective assistance of trial counsel claims on the ground they had already been adjudicated by our court on direct appeal. Characterizing Cleary's challenge to the sentencing order as one based on the constitutionality of the eighty-five percent rule, the court concluded that this issue also had been decided by our court. With respect to the newly discovered evidence claim, the court concluded the new testimony would not probably change the result of trial. The district court denied the postconviction relief application and this appeal followed.
II. Ineffective Assistance of Trial Counsel Claims
A. Failure to Object to Criminal History. Cleary asserts trial counsel was ineffective in failing to file a motion in limine to exclude his criminal history. On direct appeal, our court rejected an identical claim, concluding Cleary had failed to establish he was prejudiced by counsel's omission. Our resolution of the claim on the merits precluded Cleary from relitigating the issue in his postconviction relief action. See Iowa Code § 822.8 (1999) (providing any ground "finally adjudicated" in the proceeding that resulted in defendant's conviction may not be the basis of a subsequent postconviction relief action absent a showing of sufficient reason for failure to raise it earlier). Therefore, the district court correctly denied relief on this claim.
B. Failure to Object to Prosecutor's Closing Arguments. At his postconviction relief hearing, Cleary asserted trial counsel should have objected to the prosecutor's reference to him as a drug dealer. As noted, we rejected a variation of this claim on direct appeal. Our resolution of that claim also effectively disposes of this prosecutorial misconduct claim. Accordingly, we agree with the district court that this claim was "finally adjudicated" within the meaning of Iowa Code section 822.8.
C. Failure to Investigate Inculpatory Witnesses. This claim dovetails with Cleary's newly discovered evidence claim. Therefore, we will address it in that context.
D. Conflicting Alibi Evidence. At the postconviction relief hearing, Cleary testified his trial counsel was aware of timing inconsistencies in the deposition statements of his alibi witnesses, yet chose to put all three of these witnesses on the stand. Specifically, Lori Stalker testified Cleary left to go fishing about 3:30 or 4:00 and came back between 7:00 and 8:00. She stated she was not exactly sure of the return time, but it was in the evening. Rusty Marshall testified Cleary came over to his house around 3:00, went fishing with him that afternoon, and returned with him around 10:00. Ron Armstrong testified Cleary came over in the morning, went fishing with him that afternoon and returned around dinnertime.
The district court rejected this ineffective-assistance-of-counsel claim on the ground that it had already been adjudicated. Iowa Code § 822.8. However, this claim was not raised or litigated on direct appeal. Therefore, the "finally adjudicated" language of section 822.8 is inapplicable.
We need not address whether Cleary waived this claim by failing to raise it on direct appeal because the State did not urge and the district court did not rely on a waiver argument. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002).
We proceed to the merits of this claim. Our review of the merits is de novo. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). An applicant must establish breach of an essential duty and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Prejudice exists when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
We believe Cleary cannot establish he was prejudiced by trial counsel's decision to put all the alibi witnesses on the stand. The victim positively identified Cleary as the perpetrator. While the alibi witnesses did not waver in their testimony that Cleary was with them when the crime occurred, all three were significantly impeached with prior deposition testimony. Therefore, there was not a reasonable probability that the exclusion of one or two of the witnesses would have strengthened the credibility of the third witness and thereby changed the trial outcome.
Counsel for the State raised this alternate prejudice argument in his brief to the district court, stating, "[e]ven if this Court considered these claims anew, applicant is nonetheless unable to demonstrate prejudice and is not entitled to relief." Although the district court did not rely on this ground, we may uphold a district court ruling on a ground other than the one upon which the district court relied provided the ground was urged in that court. DeVoss v. State, 648 N.W.2d 56, 61 (Iowa 2002).
E. Victim Questioning. Cleary claims defense counsel should have asked the victim whether she recalled if the perpetrator had a beard. The district court rejected this claim on the ground it had already been adjudicated. However, the claim was not raised or litigated on direct appeal. Therefore, the "finally adjudicated" language of section 822.8 is inapplicable.
Proceeding to the merits, we are not convinced Cleary established prejudice. Cleary testified he asked his trial attorney to ask the victim if the suspect had a beard, in order to impeach the victim's assertion that she was "100 percent sure" of her identification. Trial counsel asked this question of the victim during a deposition and the victim responded she did not know. At trial, however, counsel did not ask the question and later informed Cleary her failure to do so was a "mistake". There is not a reasonable probability the trial outcome would have changed if counsel had asked this single question. As our court pointed out in its prior opinion, witnesses testified the victim "pointed directly at Cleary and said `That's him'". There was also testimony the victim immediately picked Cleary out of a photo array. We therefore find the prejudice prong was not satisfied.
F. Restitution. Cleary argues trial counsel was ineffective in failing to advise him on the implications of a restitution order. The district court concluded this issue had already been adjudicated. However, this claim was neither raised nor litigated on direct appeal, precluding resolution on the "finally adjudicated" ground set forth in section 822.8.
Proceeding to the merits, we can discern no prejudice in counsel's failure to advise Cleary of the court's restitution order or the ability to challenge the amount of restitution, as the district court expressly advised him of his ability to contest the amount. Accordingly, we affirm the district court's rejection of this claim.
III. Ineffective Assistance of Trial and Appellate Counsel — 85% Rule
Cleary contends his sentencing order did not reveal that his crime was subject to the eighty-five percent rule, requiring him to serve eighty-five percent of his sentence before he was eligible for parole or work release. See Iowa Code §§ 902.12; 903A.2(1)(b) (1999). He contends his sentence was illegal because the Department of Corrections applied the eighty-five percent rule without seeking an amendment of the sentencing order. He further contends trial and appellate counsel were ineffective in failing to raise this asserted illegality.
The district court concluded this issue was addressed by our court on direct appeal. We disagree. Our court addressed the question of whether the eighty-five percent rule violated the constitutional right to be free from cruel and unusual punishment. We did not consider the question of whether the sentence was illegal based on the court's failure to address the eighty-five percent rule. Therefore, this postconviction relief claim was not "finally adjudicated" within the meaning of section 822.8.
Proceeding to the merits, we believe this issue may be resolved based on the absence of prejudice. After sentence was imposed in this case, our highest court held that Iowa Code sections 902.12 and 903A.2 "together impose a mandatory minimum sentence and, accordingly, it is the court's obligation to determine their applicability to a particular defendant." State v. Iowa Dist. Ct., 616 N.W.2d 575, 579 (Iowa 2000). The court further noted, "[t]he practical effect of these two statutes is to require that a defendant convicted of a forcible felony listed in section 902.12 must serve at least eighty-five percent of his sentence." Id.
The district court here did not mention the eighty-five percent rule, but defense counsel did, stating, "[a]s you know, robbery is what we call an eighty-five percent crime, and Mr. Cleary will have to serve eight and a half years of that ten-year sentence before he's eligible for parole." As Cleary was apprised of the eighty-five percent rule on the record, he suffered no prejudice by virtue of trial counsel's failure to ask the district court to discuss the topic or appellate counsel's failure to raise the issue on direct appeal.
IV. Newly Discovered Evidence
Cleary next argues newly discovered evidence in the form of testimony from a fellow inmate entitles him to a new trial. That inmate, Kevin Sellers, testified:
I was speaking with a group of individuals on the yard and it came up in conversation that I had been here before. And at that time a man named Roger Dogett asked me if I knew Joe Cleary. I told him I did. And he said, "Well, Joe probably doesn't like me too much." I said "Why is that?" And he said — Roger Doggett said "Joe's doing time for a car I stole from Quik Trip." That was his exact words.
To establish this claim, Cleary must show (1) the evidence was discovered after the verdict, (2) it could not have been discovered earlier in the exercise of due diligence, (3) the evidence is material to the issues in the case and not merely cumulative or impeaching, and (4) the evidence probably would have changed the result of the trial. Jones v. State, 479 N.W.2d 265, 274 (Iowa 1991).
We are not convinced the evidence was newly discovered. At the postconviction relief hearing, Cleary testified he discussed trial strategy with his attorney before the case proceeded to trial. At that time, he told his attorney he "heard Roger Doggett was the one that done it. . . ." As Kevin Sellers's testimony merely reconfirmed what Cleary already knew and what he had conveyed to defense counsel, Cleary is not entitled to a new trial based on that evidence.
We affirm the denial of Cleary's postconviction relief application.
AFFIRMED.