Summary
describing the juvenile court proceedings concerning the appellant's ineffective-assistance claim on limited remand prior to appeal
Summary of this case from In re C.W.Opinion
No. 5-729 / 04-0933
Filed November 9, 2005
Appeal from the Iowa District Court for Clinton County, James E. Kelly, Judge (adjudication), and Arlen Van Zee, District Associate Judge (disposition).
A minor child appeals a juvenile court order denying her claim of ineffective assistance from counsel regarding a finding that she committed the delinquent acts of third-degree burglary and second-degree theft. AFFIRMED.
Brian Farrell, Goose Lake, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Mike Wolf, County Attorney, and Ross Barlow, Assistant County Attorney, for appellee State.
Considered by Vogel, P.J., Eisenhauer, J., and Hendrickson, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
Grace, who was then fifteen years old, was accused of being a juvenile delinquent for committing the acts of burglary in the third degree, in violation of Iowa Code sections 713.1 and 713A.6 (2003), and theft by possession of stolen property, in violation of sections 714.1(4) and 714.2(2).
In October 2003 the doors were kicked in at some storage units at the Cambridge Apartments in Clinton, Iowa. A dresser, china, and Precious Moments figurines were taken from the storage units. Some of the stolen goods were found in the apartment where Grace lived with her older sister, Diana, at the Cambridge Apartments.
At the time of the crime, Grace was dating Michael and was acquainted with his mother, Shelli Bousman, and his aunt, Traci Kenworthy. Shelli and Traci also lived at the Cambridge Apartments. At the adjudicatory hearing, Traci testified that Grace and her friend, Veronica, told her they had broken into the storage sheds and had taken a dresser, some boxes of dishes, and Precious Moments items. Furthermore, Shelli testified Grace told her she had broken into the storage units and had taken some china. After Grace's revelations Shelli insisted that Michael quit dating Grace.
Grace testified that Michael told her he had found some stuff by a dumpster. When she went down, a shaggy looking man was there and he said he was moving out and they could have what he left by the dumpster. Grace stated she, Michael, and Diana then carried the items, which included a dresser and some china, up to her apartment. Diana testified that she saw the items next to a dumpster by the storage units. Susan, Grace's mother, testified she believed Grace was framed by Shelli as a way to get Grace out of Michael's life.
The juvenile court entered an order adjudicating Grace to be a juvenile delinquent. The court specifically found the testimony of Traci and Shelli was more credible than that of Grace. The dispositional order placed Grace on probation supervision for one year. Grace was ordered to pay restitution in an amount to be determined by the juvenile court officer. Grace appealed, claiming she received ineffective assistance of counsel at the adjudicatory hearing.
Grace filed a motion seeking a limited remand on the ineffective assistance claim, and the motion was granted by the Iowa Supreme Court. On remand, Grace argued her trial attorney was ineffective because he did not present evidence tending to show Shelli was not a credible witness. Gerald Jones testified that in an unrelated incident Shelli had attempted to have him fired from his job. Rich, Diana's husband, testified the stolen goods had been in Papa John's boxes and Shelli worked at Papa John's. Diana testified there was animosity between Shelli and Grace. Susan testified that Shelli stated she was going to put Grace away for a long time to keep her away from Michael. Grace testified Shelli found Grace and Michael in a sexually compromising situation and then Shelli became biased against her. She also stated that Shelli encouraged her to shoplift.
The juvenile court determined the evidence concerning Shelli presented at the remand hearing would not have been admissible at the adjudicatory hearing under Iowa Rule of Evidence 5.608( b). The court further found that even if the evidence had been admissible, Shelli had not shown she was prejudiced because the adjudication was based on testimony of Shelli and Traci, not Shelli alone. In addition, some of the stolen goods were found in Grace's room. The court concluded Grace had failed to show she received ineffective assistance of counsel.
II. Standard of Review
Juvenile delinquency proceedings are not criminal prosecutions, but are special proceedings that serve as an ameliorative alternative to the criminal prosecution of children. In re J.D.S., 436 N.W.2d 342, 344 (Iowa 1989). Our review of juvenile delinquency proceedings is de novo. In re S.M.D., 569 N.W.2d 609, 610 (Iowa 1997); In re W.B., 641 N.W.2d 543, 545 (Iowa Ct.App. 2001). We give weight to the factual findings of the juvenile court, especially when considering the credibility of witnesses, but are not bound by them. In re J.D.F., 553 N.W.2d 585, 587 (Iowa 1996); In re L.A.J., 495 N.W.2d 128, 129 (Iowa Ct. App. 1992). The State must prove beyond a reasonable doubt that the child engaged in delinquent behavior. In re D.L.C., 464 N.W.2d 881, 883 (Iowa 1991).
III. Ineffective Assistance
Grace contends she received ineffective assistance from counsel prior to and during her adjudicatory hearing. She states her counsel was aware of issues regarding Shelli's credibility and failed to pursue these issues. Grace believes she was prejudiced by her counsel's performance.
The test for ineffective assistance of counsel in juvenile proceedings is generally the same as in criminal proceedings. In re D.P., 465 N.W.2d 313, 316 (Iowa Ct.App. 1990). In order to establish ineffective assistance, a party must show counsel's performance was deficient, and actual prejudice resulted. In re J.P.B., 419 N.W.2d 387, 392 (Iowa 1988) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). We presume counsel's performance falls within the range of reasonable professional competency. In re A.R.S., 480 N.W.2d 888, 891 (Iowa 1992). The burden of proving ineffectiveness is on the claimant. Id.
In considering the evidence presented by Grace at the remand hearing, the juvenile court determined the evidence would not have been admissible at the adjudicatory hearing under Iowa Rule of Evidence 5.608( b). Rule 5.608( b) provides:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's credibility, other than conviction of crime as provided in rule 5.609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness's character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The court concluded Grace was attempting to attack Shelli's credibility by extrinsic evidence.
Rule 5.608( b) governs the admissibility of evidence concerning the conduct of a witness as it reflects on the witness's credibility. State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999). Under this rule, a party may not attack the credibility of a witness by showing specific instances of the witness's conduct through extrinsic evidence. State v. Knox, 536 N.W.2d 735, 740 (Iowa 1995). We agree with the juvenile court's conclusion that the evidence presented by Grace at the remand hearing was an attempt to attack the credibility of Shelli by showing specific instances of her conduct through extrinsic evidence, and this evidence would not have been admissible at the adjudicatory hearing under rule 5.608( b). Additionally, we agree with the juvenile court that even if the evidence had been admissible, other evidence supported the adjudication and Grace failed in her burden to show that counsel was ineffective.
Grace asserts that the juvenile court failed to address several other issues which she raised concerning counsel's failure to attack Shelli's credibility. On appeal, she also asserts counsel should have pointed out that Traci was Shelli's sister and likely shared her bias against Grace. Issues must be presented to and passed upon by the juvenile court before they can be raised on appeal. In re V.M.K., 460 N.W.2d 191, 193 (Iowa Ct.App. 1990). We conclude Grace has failed to preserve error on these issues.
In summary, on our de novo review, we determine Grace has failed to show counsel breached an essential duty. She has also failed to show she was prejudiced by counsel's performance. We conclude Grace has not shown she received ineffective assistance of counsel.
IV. Restitution
Grace claims the juvenile court should not have ordered payment of restitution in an amount to be determined by the juvenile court officer. The State concedes that normally the juvenile court should specify the exact amount of restitution in a dispositional order.
In this case, the juvenile court had calculated the amount of restitution to be $1,790. A separate proceeding regarding Grace's friend, Veronica, was pending. If Veronica was also found to be a delinquent regarding the same incident as this case, then the amount of restitution Grace was required to pay would be reduced to $895. Thus, the exact amount of restitution Grace would be required to pay was unknown at the time of the dispositional order.
Once the juvenile court officer specifies whether Grace should be required to pay $1,790 or $895, then if Grace chooses to challenge the amount of restitution ordered, she can request a hearing under section 232.54(1) and seek to have the dispositional order modified. At the dispositional hearing, Grace's counsel recognized this possibility, as follows:
I have not had an opportunity to carefully review the basis of the restitution figure, but if it — if it appears, after doing so and after I've had a chance to discuss my findings with [Grace], that it would be reasonable to contest any aspect of that, we would be submitting an application to the Court for a separate hearing on the matter of restitution.
Based on the specific facts in this case, we determine the juvenile court properly deferred the matter of the correct amount of restitution until after the pending adjudication proceedings concerning Veronica were concluded.
We affirm the decision of the juvenile court.