Opinion
No. 2-1039 / 02-0751
Filed January 29, 2003
Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.
Torrey Brown appeals from the district court ruling dismissing his application for postconviction relief. AFFIRMED.
Terry Wright and Jeanne Johnson, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas Ferguson, County Attorney, and Kim Griffith, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Torrey Brown appeals from the district court ruling dismissing his application for postconviction relief. We affirm.
Background Facts and Proceedings. In January 1999 Brown was convicted of possession with the intent to deliver more than five grams but less than fifty grams of crack cocaine while in the immediate possession of a firearm in violation of Iowa Code section 124.401(1)(b) and (1)(e) (1999). This court affirmed his conviction, finding the district court properly denied Brown's motion to suppress because he failed to show a legitimate expectation of privacy in his girlfriend's coat. State v. Brown, 612 N.W.2d 104 (Iowa Ct.App. 2000). Brown filed a postconviction relief application alleging trial counsel was ineffective in failing to develop necessary facts to establish he had a reasonable expectation of privacy in his girlfriend's coat. The State filed a motion to dismiss, which Brown resisted. The district court granted the State's motion concluding "the issue was resolved adversely to the defense on direct appeal in the Iowa Court of Appeals decision and it may not be relitigated here." Brown appeals.
Dismissal of Application. Our review of postconviction relief proceedings can be for errors at law or de novo. Berryhill v. State, 603 N.W.2d 243, 244-45 (Iowa 1999). When the action implicates constitutional issues, our review is de novo. Id. We review dismissal of an application for postconviction relief for errors at law. Brown v. State, 589 N.W.2d 273, 274 (Iowa Ct.App. 1998).
Brown contends the district court erred in dismissing his application for postconviction relief. He further argues the issue of whether trial counsel was ineffective in failing to show he had a legitimate expectation of privacy in his girlfriend's coat was not raised and litigated on direct appeal. We agree with Brown's contention that the issue of ineffective assistance of trial counsel was not raised and litigated on direct appeal. Therefore, he cannot raise this argument for the first time in his application for postconviction relief unless he can demonstrate a sufficient cause or reason for not properly raising the issue previously. State v. Ledezma, 626 N.W.2d 124, 141 (Iowa 2001). We acknowledge that ordinarily the ineffective assistance of appellate counsel may constitute sufficient reason for failing to raise the issue of ineffective assistance of trial counsel on direct appeal. Berryhill, 603 N.W.2d at 245.
However, Brown failed to raise the argument appellate counsel was ineffective in his application for postconviction relief and, thus, he cannot raise it for the first time on this appeal. Issues must be presented to and passed upon by the district court before they can be raised and decided on appeal. State v. Jefferson, 574 N.W.2d 268, 278 (Iowa 1997). After a careful review of the record, we conclude it reveals no other basis for finding that Brown had sufficient cause for not raising his claim on direct appeal. Accordingly, we affirm the district court's dismissal of Brown's application for postconviction relief.