Opinion
No. 5-701 / 03-2038
Filed January 19, 2006
Appeal from the Iowa District Court for Black Hawk County, Bruce B. Zager, Judge.
Randy Aneweer appeals from the denial of his postconviction relief application. AFFIRMED.
Randy Allen Aneweer, Fort Madison, pro se.
Kevin E. Hobbs, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly A. Griffith, Assistant County Attorney, for appellee-State.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Randy Aneweer appeals from the denial of his postconviction relief application. We affirm.
Background Facts and Proceedings.
In 1995, the State charged Aneweer with three counts of second-degree sexual abuse, in violation of Iowa Code sections 709.1(3) and 709.3(2) (1995), and one count of possession of a controlled substance, in violation of section 124.401(3). He was alleged to have sexually abused his girlfriend's eight-year-old daughter. Following a trial, the jury found him guilty as charged. We affirmed his convictions on direct appeal. State v. Aneweer, No. 96-806 (Iowa Ct.App. June 26, 1997). Because we addressed the factual and procedural background in that opinion, we do not repeat them here. In that appeal, we rejected the following claims: (1) there was insufficient evidence to support the sexual abuse convictions; (2) the trial court abused its discretion in excluding all defense and alibi witnesses; (3) the court abused its discretion in excluding the defendant's expert witness; and (4) the court abused its discretion in imposing consecutive sentences. We also preserved for a possible postconviction relief (PCR) application certain ineffective-assistance-of-counsel claims.
In May of 2000 Aneweer filed a pro se PCR application, which he subsequently amended in December of 2001. In July of 2003, Aneweer filed a motion for summary judgment, which the court denied. Following a trial, the court entered a detailed ruling denying the PCR application. Aneweer appeals from this ruling.
Ineffective Assistance Standards.
To establish ineffectiveness assistance of counsel, Aneweer must prove his attorney's performance fell below "an objective standard of reasonableness," and "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). The ineffective assistance claims may be disposed of if Aneweer fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999).
When a claim in a postconviction relief proceeding is premised on either trial error or the ineffective assistance of trial counsel and that claim was not raised on direct appeal, the applicant must establish both a "sufficient reason" or "cause" for the failure to raise the claim on direct appeal and actual prejudice. Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998). Cf. 2004 Iowa Acts ch. 1017, § 2 (codified at Iowa Code § 814.7 (2005)) (providing, effective July 1, 2004, and thereafter, that ineffective assistance of counsel claims can be determined in the first instance in a postconviction proceeding, even if not raised in a direct appeal). Generally, however, a sufficient reason or cause is provided if ineffective assistance of appellate counsel is demonstrated. Osborn, 573 N.W.2d at 921.
Claims on Appeal.
Aneweer first claims the court erred in denying his motion for summary judgment. He next raises a variety of claims alleging error on the part of the criminal trial court, including that the court's exclusion of his witnesses violated his "right to present a defense," that the exclusion of his expert testimony denied his constitutional right to a fair trial, that the exclusion of the victim's videotaped interview violated his right to due process, that defective jury instructions violated his due process rights, and that the court improperly revealed to the jury his habitual offender status. Finally, he raises several claims of ineffectiveness of trial counsel, including that counsel failed to confront and attack the credibility of the victim, failed to provide a witness list, failed to depose certain witnesses, failed to move to sever the drug charge, failed to object to certain testimony, and failed to object to the mention of his habitual offender status.
Motion for Summary Judgment.
In his extensive pro se motion for summary judgment, which was subsequently assisted by counsel, Aneweer basically sought summary adjudication of every claim asserted in his PCR application. The PCR court denied the motion, noting "the court cannot conclude that the Petitioner has met his burden of showing that there are no genuine issues of material fact or that he is entitled to judgment in his favor as a matter of law."
The district court properly stated that Aneweer is only entitled to summary judgment if there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Manning v. State, 654 N.W.2d 550, 560 (Iowa 2002). Aneweer has the burden of showing the nonexistence of a material fact and, the court is to consider all materials available to it in the light most favorable to the State. Behr v. Meredith Corp., 414 N.W.2d 339, 341 (Iowa 1987). A genuine issue of material fact exists if reasonable minds could draw different inferences and reach different conclusions from the undisputed facts. Id. Upon our review of the record, we conclude the PCR court properly determined Aneweer was not entitled to judgment as a matter of law.
Trial Court Error.
As noted, in his PCR application Aneweer raised a number of claims implicating trial court error, including that the court's exclusion of his witnesses violated his "right to present a defense," that the exclusion of his expert testimony denied his constitutional right to a fair trial, that the exclusion of the victim's videotaped interview violated his right to due process, that defective jury instructions violated his due process rights, and that the court improperly revealed to the jury his habitual offender status. In its ruling, the PCR court, however, only specifically addressed claims of ineffective assistance of trial counsel.
Postconviction relief is not a means for relitigating claims that were or should have been properly presented on direct appeal. Earnest v. State, 508 N.W.2d 630, 632 (Iowa 1993). Thus any claim not properly raised on direct appeal may not be litigated in postconviction unless there is a showing of "sufficient reason" or "cause" for not properly raising it previously, and of actual prejudice resulting from the alleged error. Polly v. State, 355 N.W.2d 849, 856 (Iowa 1984). Ineffective assistance of appellate counsel may provide "sufficient reason" or "cause" to permit the issue of ineffective assistance of trial counsel to be raised for the first time in a proceeding for postconviction relief. Collins v. State, 477 N.W.2d 374, 376 (Iowa 1991). Aneweer does not now raise the issue of the ineffectiveness of appellate counsel, and thus cannot indirectly raise these claims. Furthermore, the contention that the court erred in excluding certain defense witnesses was addressed and rejected by this court on direct appeal. Consequently, we conclude these claims of error by the trial court are barred.
Ineffective Assistance of Trial Counsel.
Aneweer argued below that trial counsel was ineffective in failing to confront and attack the credibility of the victim, failing to provide a witness list, failing to depose certain witnesses, failing to move to sever the drug charge, and failing to object to the mention of his habitual offender status. The PCR court rejected each of these claims, on both duty and prejudice grounds. We likewise conclude Aneweer cannot prevail on his various ineffective-assistance-of-counsel claims, and we proceed to address them individually.
Failure to "Confront and Attack" Victim.
Aneweer maintains counsel was ineffective for his "unreasonable decision to not confront and attack the victim's credibility and inconsistent statements." He claims counsel was improperly guided more out of concern for the victim's emotional status than for counsel's duty of loyalty to him. As the PCR court observed,
Attorney Ackerman acknowledged he was in the unenviable position of attempting to impeach an eight-year-old child on highly sensitive issues. Through his almost thirty years of criminal law experience, and his experience in dealing with sexual abuse cases involving children, he was well aware of the risk that a strenuous attempt at impeachment may have on the jury.
Our review of counsel's performance is highly deferential, and we must presume that his conduct fell within the range of reasonable professional assistance. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). Furthermore, improvident trial strategy or miscalculated tactics do not necessarily amount to ineffective assistance. State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981). Here, counsel gave reasonable explanations for his actions, and we conclude the PCR court properly determined counsel's performance in this regard fell within the range of reasonable professional judgment.
Failure to Call Alibi Witnesses.
In this portion of his PCR action, Aneweer apparently complained of counsel's failure to timely file a list of defense witnesses, thereby precluding him from calling them at trial. At the PCR hearing, Aneweer stated that he provided Ackerman with a witness list as early as December 1995 or January 1996, which would have provided Ackerman ample time to file the list of defense witnesses. The district court, on credibility grounds, rejected this timing, and found that the list was more likely provided to counsel much later, in fact, shortly before trial. Regardless, in his direct appeal, this court concluded "[i]t is improbable Aneweer's alibi witnesses could account for all of [his] activities over the continuous and intermittent dates in question spanning one and one half months." Furthermore, none of the witnesses presented at the PCR hearing would have reasonably supported his alibi defense. Accordingly, we conclude Aneweer suffered no prejudice by virtue of the failure to file a witness list and call alibi witnesses.
Failure to Depose Witnesses.
Aneweer's trial counsel only took depositions of the victim and her mother. Counsel testified at the PCR hearing that he does not always depose the State's witnesses, and that in this case he found it unnecessary. We conclude this is the type of tactical trial strategy with which we will not interfere. See Van Hoff v. State, 447 N.W.2d 665, 670 (Iowa Ct.App. 1989) ("When counsel makes a reasonable tactical decision, this court will not engage in second-guessing.").
Failure to Sever Drug Charge.
When Aneweer was arrested, police found marijuana on his person, and he was charged with possession of marijuana. Now on appeal, Aneweer maintains counsel was ineffective in failing to move to sever the drug charge from the sexual abuse charges. It appears that the PCR court did not directly address this contention, instead implicitly rejecting it as having been waived. We affirm this ruling, concluding Aneweer has failed to show sufficient reason or cause for having failed to previously raise the issue. Iowa Code § 822.8.
Habitual Offender Status.
Aneweer claims the jury was allowed to learn of his habitual offender status, which he further claims prejudiced his right to a fair trial. First, this claim was not addressed by the PCR court in any fashion, and there does not appear to have been any testimony presented by Aneweer to substantiate this claim. Regardless, we conclude this claim is without merit because the record does not support that the amended trial information, which contained the habitual offender allegation, was ever read to the jury. The record simply reflects that the "trial information," which did not mention the alleged habitual offender status, was read. Further, there was no evidence presented as to Aneweer's habitual offender status, and the habitual offender charge was eventually dismissed.
Disposition.
The PCR court did not err in denying Aneweer's motion for summary judgment. Further, because postconviction relief is not a means for relitigating claims that were or should have been presented on direct appeal, we reject the claims of trial court error. In addition, the claims of ineffective assistance of trial counsel are either without merit or are lacking in prejudice. Finally, whether specifically addressed in this opinion or not, we conclude the remainder of Aneweer's claims are barred, lacking in prejudice, or otherwise without merit.