Opinion
No. 2-275 / 01-1245.
Filed June 19, 2002.
Appeal from the Iowa District Court for Black Hawk County, BRUCE ZAGER, Judge.
Leighton Manning appeals from a district court ruling denying his application for postconviction relief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly A. Griffith, Assistant County Attorney, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Leighton Manning appeals from a district court ruling denying his application for postconviction relief. On appeal, he contends the district court erred in dismissing his application without affording him an evidentiary hearing. We affirm.
I. Factual Background and Proceedings.
Manning pled guilty to two counts of possession of more than five grams of cocaine base with intent to deliver, second offender, and two counts of failure to affix a drug tax stamp. Attorney Lars Anderson, appointed to represent Manning on appeal, filed a motion to withdraw pursuant to Iowa Rule of Appellate Procedure 6.104. Anderson notified Manning of his motion and advised him to write the clerk of the Iowa Supreme Court if he wished the appointment of another attorney and to raise in writing any assertions he wished to urge in support of his appeal. In his resistance, Manning requested the appointment of another attorney, raised several claims regarding the ineffectiveness of his trial counsel, and contended "[t]here is more evidence that will help my appeal." The Iowa Supreme Court found his claims frivolous and dismissed the appeal.
Manning filed an application for postconviction relief. He alleged his trial counsel was ineffective in many new respects and his appellate counsel was ineffective in failing to raise those claims on direct appeal. He further alleged numerous grounds of prosecutorial misconduct. The State filed a motion for summary judgment. The district court granted the State's motion and dismissed Manning's application. He appeals.
II. Scope of Review.
Generally, postconviction proceedings are reviewed for errors of law. Bugley v. State, 596 N.W.2d 893, 895 (Iowa 1999). To the extent the application raises constitutional issues, our review is de novo. McLaughlin v. State, 533 N.W.2d 546, 547 (Iowa 1995). "When summary judgment is granted in a postconviction relief action, we examine the record to determine if a genuine issue of fact exists and whether the moving party is entitled to a judgment as a matter of law." Bugley, 596 N.W.2d at 895. A material issue of fact exists if reasonable minds could draw different inferences and reach different conclusions from the facts. State v. Dryer, 342 N.W.2d 881, 883 (Iowa Ct.App. 1983).
III. Error Preservation.
In its order, the postconviction court addressed only two of Manning's claims asserted in his application for postconviction relief: (1) whether trial counsel was ineffective in failing to seek a plea agreement and failing to properly advise Manning regarding the maximum possible sentence and (2) whether appellate counsel was ineffective in failing to raise these issues on direct appeal. Because Manning failed to file a motion for enlargement or amendment pursuant to Iowa Rule of Civil Procedure 1.904(2) seeking a ruling by the trial court on his other claims, our review is limited to those addressed by the postconviction court. Starling v. State, 328 N.W.2d 338, 341-42 (Iowa Ct.App. 1982).
The State contends Manning waived several of the grounds for postconviction relief upon which he relies because he failed to include them in his resistance to dismissal of his direct appeal and failed to show "sufficient reasons" for their absence. See Iowa Code § 822.8 (1997); see also Bugley, 596 N.W.2d at 896 (holding section 822.8 imposes a "burden upon a postconviction applicant to show sufficient reasons why any ground for relief asserted in a postconviction relief petition was not previously asserted on direct appeal"). We disagree. We find Manning sufficiently preserved error in his resistance to appellate counsel's motion to withdraw by alleging he received ineffective assistance of trial counsel and by contending "[t]here is more evidence that will help my appeal." See Bugley, 596 N.W.2d 896 (holding burden upon a postconviction applicant to show sufficient reasons does not apply "when a direct appeal is dismissed as frivolous in response to a contested 104 motion") (emphasis added). We conclude this general reference to "more evidence" was a sufficient expression by a layperson to alert the court to Manning's desire to raise additional claims of ineffective assistance of counsel in anticipated post-conviction proceedings.
Iowa Code section 822.8 provides:
All grounds for relief available to an applicant under this chapter must be raised in the applicant's original, supplemental or amended application. Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was not adequately raised in the original, supplemental, or amended application.
IV. Merits.
A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results. Bugley, 562 N.W.2d at 178. We determine whether appellate counsel was ineffective under the same two-pronged test. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
Manning contends the postconviction court erred in granting the State's motion for summary judgment because the following genuine issues of material fact existed: (1) whether trial counsel failed to seek a plea agreement, (2) whether trial counsel failed to properly advise him of the maximum possible sentence, and (3) whether appellate counsel was ineffective for failing to raise these issues on direct appeal.
We reject Manning's claims regarding trial counsel's failure to seek a plea agreement. "When complaining about the adequacy of an attorney's representation, it is not enough to simply claim that counsel should have done a better job." Dunbar v. State, 515 N.W.2d 13, 15 (Iowa 1994). Manning fails to assert the existence of a reasonable prospect of, or the prosecutor's willingness to enter, a plea agreement that would have produced an outcome more favorable than the sentence he received following his conviction. In the absence of greater specificity, we are unable to address this ineffective assistance of counsel claim . See Dunbar, 515 N.W.2d at 15 (holding defendant must state specific ways counsel's performance was inadequate and how competent representation would have changed the outcome); State v. Risdal, 404 N.W.2d 130, 131-32 (Iowa 1987) (holding burden of proof is on appellant to establish his counsel was ineffective).
Furthermore, the record shows the district court informed Manning of the maximum possible sentences during the plea colloquy. See Earnest v. State, 508 N.W.2d 630, 633 (Iowa 1993) (holding counsel's failure to advise defendant of restitution amounts did not preclude summary judgment because court informed defendant of restitution provisions during plea colloquy). We fail to see how Manning could have been prejudiced by counsel's failures to inform him of possible sentences, when the district court did so. See Victor v. State, 339 N.W.2d 617, 620 (Iowa Ct.App. 1983) (holding defendant could not prove he was prejudiced by trial counsel's failure to inform him of motion in arrest of judgment because trial court informed defendant during plea colloquy). Accordingly, we conclude appellate counsel committed no error in failing to raise these issue on direct appeal. Ledezma, 626 N.W.2d at 141 ("To prove appellate counsel's deficient performance resulted in prejudice, the applicant must show his ineffective assistance of trial counsel claim would have prevailed if it had been raised on direct appeal.").
The following relevant exchange took place during the plea colloquy:
THE COURT: Section 124.401(1)(b) carries the following possible penalties: It is a class B felony meaning that the possible penalties are not more than 25 years in the state penitentiary, or a fine of at least $5,000 but no more than $100,000. And as a second offender under 124.411 the penalties are enhanced as follows: Not to exceed three times the term otherwise authorized, or a fine not more than three times the amount otherwise authorized. So we are talking in this case a tripling of not more than 25 years and a tripling of not less than a fine of $5,000 nor more than $100,000. So everything that I previously told you is tripled. Do you understand those penalties as well?
MANNING: Yes, I do.
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THE COURT: . . . In Count II you're accused of failing to affix a drug tax stamp . . . [t]hat allows possible penalties of not more than five years in the state penitentiary, or a fine of not less than $500 nor more than $7,500, or both. I might also go back to Count I and tell you that in the event you were committed to prison, then you would not be eligible for parole until you've served at least one-third of the sentence assessed against you. Do you understand that on Count I as well?
MANNING: Yes, I do.
We affirm the postconviction court's grant of summary judgment. All other claims and issues raised by Manning on appeal were either waived or not preserved for our review.
AFFIRMED.