Opinion
No. 2-200 / 01-0979.
Filed July 3, 2002.
Appeal from the Iowa District Court for Dubuque County, RICHARD R. GLEASON, District Associate Judge.
Douglas Sauser appeals from his conviction for assault with a dangerous weapon. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Fred H. McCaw, County Attorney, and Ralph Potter, Assistant County Attorney, for appellee-State.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Douglas Sauser appeals from his conviction and sentence for assault with a dangerous weapon in violation of Iowa Code sections 708.1(3) and 708.2(3) (1999). Defendant claims his trial counsel was ineffective for (1) failing to request a jury instruction on "previous threats against defendant," and (2) failing to timely file a notice of the defense of self-defense. We deny the defendant's ineffective assistance claims based on the trial court record and affirm his conviction.
In April of 2001, a jury found Sauser guilty of assaulting William Denlinger with a baseball bat. To succeed on his claims of ineffectiveness of counsel, Sauser must prove his attorney's performance fell below an objective standard of reasonableness and was prejudicial to his defense. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted). Prejudice is shown by demonstrating a reasonable probability that but for counsel's errors, the result of the proceedings would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
We find no merit to defendant's claim his attorney was ineffective for failing to request a "previous threats" instruction. Sauser asserted the defense of self-defense at trial. The trial court gave the jury six instructions which adequately explained this defense. Defense counsel had no duty to request a "previous threats" instruction.
There was also no prejudice. The State offered the testimony of three witnesses suggesting Sauser was the aggressor in the altercation. Testimony revealed that Sauser approached Denlinger with a baseball bat and swung it at him. Under the facts of this case, we cannot find a reasonable probability the proposed jury instruction would have influenced the jury's ultimate verdict.
Sauser also claims his trial counsel was ineffective for failing to timely file a notice of his intention to present the defense of self-defense. Sauser's counsel filed a notice of self-defense more than two months before trial. However, the notice was untimely, having been filed some six months after arraignment. The record reveals the State did not challenge Sauser's right to assert a justification defense. Sauser, in fact, relied on the defense of self-defense at trial. Because we conclude the untimely filing of Sauser's notice of self-defense was inconsequential to the ultimate course of the proceedings, we find no prejudice resulted from the alleged error.
Because we find no merit in Sauser's claims of ineffective assistance of counsel, we affirm his conviction.
AFFIRMED.