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Davis v. State

Court of Appeals of Iowa
Oct 12, 2005
707 N.W.2d 336 (Iowa Ct. App. 2005)

Opinion

No. 5-492 / 04-1142

Filed October 12, 2005

Appeal from the Iowa District Court for Bremer County, Paul W. Riffel, Judge.

Anthony Davis appeals from the denial of his postconviction relief application. AFFIRMED.

Mark Milder of Correll, Sheerer, Benson, Engels, Galles Demro, P.L.C., Cedar Falls, for appellant.

Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney General, and Kasey Wadding, County Attorney, for appellee.

Heard by Hecht, P.J., Vaitheswaran, J., and Nelson, S.J.

Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).


Anthony Davis appeals from the denial of his postconviction relief (PCR) application. He maintains the court erred in rejecting his claims of ineffective assistance of counsel and prosecutorial misconduct. He also claims his postconviction relief trial counsel was ineffective. We affirm.

Background Facts and Proceedings.

On October 15, 2001, Davis approached a Hy-Vee grocery store clerk under the pretext of exchanging a beer bottle for a $.05 deposit. When the clerk, Nadine Stansell, opened the cash drawer Davis reached in and began grabbing bills. After Stansell resisted by striking Davis's hands, Davis ran off with cash and the bottle. The store manager, Todd Quibell, and another store employee, Scott Nolte, joined in the pursuit of Davis outside the store, while Stansell called 911 and informed police of the incident.

After an initial sprint, the chase quickly slowed to a walking pace. Quibell claimed that at some point, Davis reached into his pocket and turned toward him, saying, "stay away or I'll blow your head off." Quibell thereafter maintained a distance of approximately fifty feet through this part of the chase, while Nolte was between fifty and seventy-five feet from him. Davis later climbed a fence and entered a nearby cemetery. Quibell and Nolte followed Davis over the fence, after which Nolte came within ten to fifteen feet from Davis. After leaving the cemetery, the beer bottle was broken and Davis continued to carry in his hand the four-inch neck of the broken bottle.

At that point, police officers arrived on the scene. Sergeant Jerry Greenlee yelled, "Police. Stop." However, Davis continued walking. Sheriff's Deputy Rich Greenlee then arrived and drew his weapon, hollering, "Police, freeze, get down." Davis at first continued walking toward deputy Greenlee with the bottle in his hand. However, Davis eventually complied and dropped the broken bottle and cash to the ground.

Based on this incident, the State charged Davis with second-degree robbery. Davis initially pled not guilty and a trial date was scheduled. The State later sought leave to amend the trial information to charge Davis with first-degree robbery. Davis thereafter withdrew his former plea and pled guilty to second-degree robbery. The court sentenced him to a term not to exceed ten years in prison. The Iowa Supreme Court dismissed Davis's direct appeal as frivolous.

Davis later filed an application for postconviction relief in which he sought a new trial on grounds that his trial counsel was ineffective. He also claimed the prosecutor's misconduct deprived him of a fair trial. Davis appeals from the district court's ruling denying postconviction relief.

Scope of Review.

We ordinarily review postconviction relief proceedings on error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when the applicant asserts claims of a constitutional nature, our review is de novo. Id. Thus, we review claims of ineffective assistance of counsel de novo. Id. We also review ineffective assistance of postconviction counsel claims under a de novo standard of review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). We give weight to the lower court's findings concerning witness credibility. Ledezma, 626 N.W.2d at 141.

Ineffective Assistance of Counsel Standards.

Davis must demonstrate both ineffective assistance and prejudice to prevail on his claims that trial counsel was ineffective. Ledezma, 626 N.W.2d at 142. Both elements must be proved by a preponderance of the evidence. Id. To establish the first prong, Davis must prove his counsel performed below the standard demanded of a reasonably competent attorney. Id. If he meets his burden to prove his counsel breached an essential duty, Davis must also establish that the breach caused prejudice. Id. at 143. To sustain this burden, Davis must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)). In the context of a guilty plea, Davis must establish by a preponderance of the evidence that he would not have pled guilty, not that he would have been acquitted if tried, despite his lawyer's ineffectiveness. See Irving v. State, 533 N.W.2d 538, 541 (Iowa 1995).

I. Counsel's Advice on State's Motion to Amend Trial Information.

As noted, the State originally charged Davis with second-degree robbery. However, prior to trial the State moved to amend the trial information seeking to charge Davis with first-degree robbery. The county attorney justified the motion by claiming he had come to believe Davis intentionally broke the beer bottle to convert it to a weapon while he was being pursued and before he was apprehended. According to Davis, after a discussion in which his defense counsel informed him the State's motion to amend the information would likely be granted, Davis wrote to Rausch communicating Davis's decision to plead guilty to second-degree robbery rather than face the proposed first-degree charge.

In his PCR action, Davis alleged his defense counsel's erroneous advice on the likelihood that the motion would be granted caused him to plead guilty. The PCR court concluded Davis's defense counsel did not fail to perform an essential duty because (1) the amendment was never granted, and (2) Davis's plea was entered voluntarily. The court further concluded Davis was not prejudiced because the second-degree robbery conviction was likely the best result Davis could have achieved under the circumstances of this case.

We first conclude it is at least arguable whether Rausch failed to perform an essential duty when he failed to research the motion to amend issue and informed Davis that the motion likely would be granted. Under Iowa Rule of Criminal Procedure 2.4(8), a trial information may be amended unless "substantial rights of the defendant are prejudiced by the amendment, or if a wholly new and different offense is charged." In State v. Sharpe, 304 N.W.2d 220, 222 (Iowa 1981), the appellant contended the trial court erred in allowing the State to amend a trial information to change the charge from second-degree to first-degree murder. Our supreme court concluded the district court's ruling allowing the amendment was erroneous because first-degree murder was a "wholly new and different offense." The court's conclusion was based upon the fact that a first-degree murder charge requires proof of elements not found in second-degree murder and upon the great disparity in punishment to which those convicted of the respective offenses are exposed Id. at 223. Davis asserts the analytical framework applied in Sharpe would have caused the district court to deny the State's motion for leave to amend the information to charge first-degree robbery in this case if defense counsel had properly resisted the motion.

However, because it is unnecessary to the resolution of this case, we need not decide whether defense counsel breached a duty to Davis in this case. We choose instead to address the prejudice prong of Davis's ineffective assistance claim. See State v. Nebinger, 412 N.W.2d 180, 192 (Iowa Ct.App. 1987). The State maintains that even if defense counsel had successfully resisted the motion for leave to amend by asserting the analytical framework applied in Sharpe, it still would have been able to achieve its charging objective by dismissing the second-degree charge and filing a new information alleging first-degree robbery. Thus, the State contends Davis could not have been prejudiced by counsel's legal advice as to whether the requested leave to amend the information would have been granted.

Davis counters that it is far from certain that the district court would have granted such a motion to dismiss and that the State is "grasping at could-have-beens." We disagree. Iowa Rule of Criminal Procedure 2.33(1) allows the State to move to dismiss a felony prosecution when it is "in the furtherance of justice." "In the furtherance of justice" as used in rule 2.33(1) has been interpreted to include facilitating the State's attempts to plea bargain. See State v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984). We believe the discretion placed in prosecutors to file motions to dismiss pending criminal prosecutions and the authority of courts to dismiss charges in the furtherance of justice under rule 2.33(1), dictate that such a motion likely would have been granted if defense counsel had successfully resisted the State's motion for leave to amend the information. Because the robbery charge in this case was a felony, the State could have, under such circumstances, simply dismissed the pending action and filed a new information charging Davis with first-degree robbery.

Rule 2.33(1) provides that a dismissal is not a bar to further prosecution if the offense charged is a felony or aggravated misdemeanor.

We reject Davis's assertion that the court must engage in speculation to conclude the State would have pursued such a course and that the district court would have allowed it in the interest of justice. We note that the prosecutor clearly stated his position during plea negotiations: Davis could either plead guilty to robbery in the second degree or face a robbery in the first-degree charge. The likelihood that the prosecutor would have maintained this position by moving to dismiss if the district court had denied leave to amend the information is enhanced by the fact that Davis had two prior criminal convictions. We are not persuaded that the district court would have rejected the State's strategic choices under the circumstances of this case. Accordingly, we conclude that whether or not a successful resistance to the motion for leave to amend the information had been asserted by defense counsel, Davis would have ultimately faced the very same choice: whether to plead guilty to second-degree robbery and avoid the risk of a conviction for first-degree robbery. We therefore find no reasonable probability that Davis would have chosen to go to trial, had trial counsel successfully resisted the State's motion for leave to amend the information.

Because we find no reasonable likelihood of a different outcome had defense counsel successfully resisted the State's motion for leave to amend the information, we conclude Davis has failed to establish prejudice resulting from his defense counsel's advice.

Prosecutorial Misconduct.

In his PCR application, Davis contended the prosecutor engaged in prosecutorial misconduct by making a motion in bad faith to amend the trial information for the sole purpose of attempting to coerce a guilty plea to the second-degree robbery charge. The PCR court rejected this claim, finding that the record reflected the prosecutor initially considered filing a first-degree robbery charge and that "the minutes of testimony contained sufficient evidence, if unexplained, to warrant a conviction for either charge."

The United States Supreme Court has recognized that in the event an offer to plead guilty to a lesser offense is refused, a prosecutor may decide to prosecute a greater offense without a due process violation unless the decision is based on vindictiveness of the prosecutor. See United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74, (1982). A presumption of prosecutorial vindictiveness is not invoked when a prosecutor makes a pretrial decision to modify the charge after a defendant refuses to plead guilty to the initial charge. Id. at 382-84, 102 S. Ct. at 2493-94, 73 L. Ed. 2d at 85-88. Prosecutors remain free before trial to exercise the broad discretion entrusted to them to determine the extent of the societal interest in prosecution. Id. at 382, 102 S. Ct. at 2493, 73 L. Ed. 2d at 86. "An initial decision should not freeze future conduct." Id.

Although the law does not raise a presumption of vindictiveness under the circumstances of this case, Davis may nonetheless obtain relief if he meets his burden to prove objectively "that the State's charging decision was motivated by the prosecutor's desire to punish him for doing something that the law plainly allowed him to do." Id. at 384, 102 S. Ct. at 2494, 73 L. Ed. 2d at 87. Our assessment of the prosecutor's motivation is tempered by the principle that prosecutors "should "remain free before trial to exercise the broad discretion entrusted to [them] to determine the extent of the societal interest in prosecution." Id. at 383, 102 S. Ct. at 2493, 73 L. Ed. 2d at 86. We are also mindful that the initial charges filed by the prosecutor "may not reflect the extent to which an individual is legitimately subject to prosecution." Id. After carefully reviewing the record in this case, we conclude Davis failed to produce such objective proof. The prosecutor considered charging Davis with first-degree robbery shortly following his arrest but elected initially to file a lesser charge as a concession to Davis. Given Davis's record of prior convictions and evidence, although disputed, that he broke and brandished a bottle in furtherance of his escape, we cannot conclude that the prosecutor's charging decision fell outside "the broad discretion entrusted to him to determine the extent of the societal interest in prosecution." Id. We therefore affirm the PCR court's holding that Davis failed to establish that the prosecutor engaged in misconduct.

Ineffectiveness of Postconviction Counsel.

Davis now maintains his PCR trial counsel provided ineffective assistance in two respects, including that (1) counsel failed in the PCR trial to offer into evidence a deposition in which a police officer testified about the State's charging discussions, and (2) counsel "did not adequately prepare and zealously present his case." We prefer to preserveineffective assistance of counsel claims for possible postconviction relief proceedings but will consider them in a direct appeal if the record is adequate. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999).

We find the record adequate to address these claims in this appeal. The deposition testimony which Davis contends should have been offered by postconviction counsel essentially confirms and duplicates evidence produced from other sources and offered during the PCR trial. Because this testimony does not alter our conclusions that Davis was not prejudiced by defense counsel's failure to resist the State's motion for leave to amend the information and that no prosecutorial misconduct was proved, we affirm on this issue.

We also reject Davis's claim that counsel breached a duty by filing an inadequate brief and in failing to "give the judge [better] guidance on how to analyze the issues. . . ." Post-conviction counsel's brief cited to Sharpe, the main authority relied on by Davis in this appeal, adequately apprised the court of Davis's legal contentions and adequately discussed the relevant facts. Thus, we affirm the district court's determination that all of Davis's post-conviction claims are without merit.

AFFIRMED.


Summaries of

Davis v. State

Court of Appeals of Iowa
Oct 12, 2005
707 N.W.2d 336 (Iowa Ct. App. 2005)
Case details for

Davis v. State

Case Details

Full title:ANTHONY JAMES DAVIS, Applicant-Appellant, v. STATE OF IOWA…

Court:Court of Appeals of Iowa

Date published: Oct 12, 2005

Citations

707 N.W.2d 336 (Iowa Ct. App. 2005)

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State v. Wilder

304 N.W.2d at 222, 225 (holding district court erred in allowing the State to amend a trial information…