Opinion
No. 2-426 / 01-1538.
Filed July 31, 2002.
Appeal from the Iowa District Court for Black Hawk County, BRUCE B. ZAGER, Judge.
A defendant appeals from the district court's order dismissing his application for postconviction relief. AFFIRMED.
Lewis M. Churbuck of Elwood, O'Donohoe, Stochl, Braun Churbuck, New Hampton, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly A. Griffith, Assistant County Attorney, for appellee.
Considered by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
Richard Yeoman appeals from the district court's order dismissing his application for postconviction relief. He contends he should have been allowed to present evidence at a hearing and his application was sufficient on its face to survive the State's motion to dismiss. We affirm.
Yeoman was charged with first degree kidnapping. He pled guilty to third-degree kidnapping, third-degree sexual abuse, and assault while participating in a felony. Yeoman appealed from the judgment and sentence, claiming the court erred in failing to merge two of the offenses and this court affirmed.
Yeoman filed a pro se application for postconviction relief alleging evidence of his guilt had been obtained improperly, and his trial counsel should have advised against a guilty plea. With the assistance of counsel, Yeoman later filed an amended and substituted application for postconviction relief alleging he was deprived of his constitutional right to assistance of counsel during the custodial interrogation because he was under the influence of controlled substances and alcohol at the time he signed the waiver of his Miranda rights. He also claimed trial counsel was ineffective in failing to obtain a ruling on the motion to suppress before he entered a guilty plea, and appellate counsel was ineffective in failing to preserve this claim.
The State filed a motion to dismiss on the ground that Yeoman waived his claim by failing to raise it on direct appeal. Following an unreported hearing, the district court dismissed the amended and substituted application.
Yeoman's claims stem from his allegation he was rendered ineffective assistance of counsel. Accordingly, we review his claims de novo. See Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). Yeoman must show sufficient reason for failing to raise these issues in his direct appeal. Iowa Code § 822.8 (1999). He must also demonstrate actual prejudice results from the failure. Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998).
The district court found Yeoman failed to establish sufficient reason for raising the issues for the first time in the postconviction relief application. In his amended and substituted application, Yeoman argued his postconviction relief claims were not raised on direct appeal because he was denied effective assistance of appellate counsel. Ineffective assistance of appellate counsel may constitute sufficient cause to permit these issues to be raised for the first time in a proceeding for postconviction relief. Osborn, 573 N.W.2d at 921. However, because the State filed a motion for summary judgment calling upon Yeoman to disclose his proof on the section 822.8 requirement, it was necessary that he provide the court with specific facts as to how his first postconviction counsel acted below the range of normal competency. See Rivers v. State, 615 N.W.2d 688, 689-90 (Iowa 2000). Yeoman was required to state the specific ways in which counsel's performance was inadequate and how competent representation would have changed the outcome. See id. at 690.
The core of Yeoman's claim is his right to assistance of counsel during the custodial interrogation was violated because he was under the influence of controlled substances and alcohol at the time he signed the waiver of his Miranda rights. A plea taken in conformity with Iowa Rule of Criminal Procedure 2.8(2)(b) waives all defenses and objections. State v. LaRue, 619 N.W.2d 395, 398 (Iowa 2000). We find Yeoman failed to do articulate specifically how competent counsel would have changed the outcome.
The hearing on the motion to dismiss was not reported and Yeoman did not make a statement of the proceedings pursuant to Iowa Rule of Appellate Procedure 6.10(3). We will not speculate as to what took place. State v. Mudra, 532 N.W.2d 765, 767 (Iowa 1995).
Yeoman next contends he should have been allowed to present evidence at the hearing. Because Yeoman failed to provide us with a record of the proceedings that affirmatively discloses the error relied upon, we find Yeoman has waived error on this issue. See Mudra, 532 N.W.2d at 767.
AFFIRMED.