Summary
finding counsel was not ineffective for failing to inform defendant about accommodation offense where defendant admitted to possessing more than "the ounce accommodation limit of section 124.410"
Summary of this case from State v. JohnsonOpinion
No. 2-758 / 01-1739
Filed January 15, 2003
Appeal from the Iowa District Court for Polk County, George Bergeson, Judge.
Applicant appeals from denial of postconviction relief. AFFIRMED.
Jeffrey T. Mains of Benzoni Mains, P.L.C., Des Moines, for appellant.
Thomas Dodge, Newton, for appellant pro se.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and Gary W. Kendall, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel, and Mahan, JJ.
Thomas Dodge appeals from the denial of his postconviction relief application. Upon our de novo review, State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002), we affirm.
As part of a binding plea agreement, see Iowa R.Crim.P. 2.10, Dodge pled guilty to felony possession of marijuana with intent to deliver and received a suspended sentence and probation. Dodge filed a notice of appeal, but his appellate defender filed a motion for leave to withdraw pursuant to Iowa Rule of Appellate Procedure 6.104. Dodge did not challenge the motion, and the supreme court dismissed his appeal. Dodge then sought postconviction relief, alleging, for the first time, the ineffectiveness of trial counsel. The district court found Dodge had not shown sufficient reason for his failure to raise ineffective assistance of trial counsel on direct appeal and also determined his claims were without merit. Upon review, we must agree with the district court.
A drug tax stamp charge was also dismissed. Dodge was sentenced immediately upon entry of the plea, having waived the presentence investigation report and his right to file a motion in arrest of judgment.
That rule allows counsel to seek withdrawal from appellate representation if, "after conscientious investigation of the entire record," counsel is convinced the appeal is frivolous.
Dodge correctly notes his failure to resist the rule 6.104 dismissal does not automatically preclude him from pursuing, in a postconviction action, grounds for relief that could have been raised on direct appeal. Bugley v. State, 596 N.W.2d 893, 896 (Iowa 1999). He must still show sufficient reason, however, for his previous failure to raise those grounds. Id. at 896-97 (noting failure to resist a rule 6.104 dismissal transforms counsel's decision into a decision by the applicant). Dodge asserts sufficient reason is shown by appellate counsel's failure, on direct appeal, to "explore all aspects of the `rest of the story' from Dodge to determine if the [ineffective assistance of counsel] issue could be resolved" on the trial court record. He contends that if such a review had been undertaken, competent counsel would have then requested preservation of ineffective assistance claims on the ground the record was inadequate to resolve the issue. In his supplemental pro se brief Dodge characterizes this same claim as a failure by appellate counsel to provide a "conscientious investigation."
Appellate counsel is presumed to be competent, and Dodge faces a heavy burden in demonstrating the inadequacy of counsel's performance. Osborn v. State, 573 N.W.2d 917, 922 (Iowa 1998); State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994). Ineffectiveness will not be presumed from the mere fact appellate counsel failed to raise an arguable error by trial counsel. See Osborn, 573 N.W.2d at 922. Even where, in hindsight, counsel may have been wrong, "this is a far cry from qualifying as ineffective representation." Cuevas v. State, 415 N.W.2d 630, 633 (Iowa 1987).
Based on the record, we cannot find appellate counsel should have been independently alerted to the ineffective assistance claims Dodge now makes. While Dodge complains of appellate counsel's failure to query him about "the rest of the story," we find it significant that Dodge, who clearly possessed knowledge relevant to his current claims, failed to raise the pertinent facts and issues with his appellate counsel, so that a further examination of the record could be undertaken. See Bugley, 596 N.W.2d at 898. We cannot find appellate counsel's performance fell below the normal range of competency.
Dodge seeks to excuse his failure to raise ineffective assistance issues on direct appeal because he "had no training in law and did not know how to respond to the authorities cited in the Rule [6.]104 brief." Presumably, the vast majority of the current prison population is without legal training and unfamiliar with legal authority. To find a lack of legal training constituted sufficient reason for failure to raise a claim on direct appeal would open the proverbial flood-gates on postconviction applications and render prior case law meaningless.
Accordingly, we concur with the district court assessment that Dodge did not demonstrate sufficient cause for his failure to raise the ineffective assistance of counsel claims on direct appeal. However, even if we were to overlook this fatal flaw to his postconviction application and address the merits of his claims, we would still affirm the district court. Based upon the record, the sentencing court substantially complied with Iowa Rule of Criminal Procedure 2.8( b), and Dodge's plea and subsequent waivers were knowing and voluntary.
We further find, as did the district court, that Dodge's primary complaint — trial counsel's failure to inform him about the possibility of an accommodation offense under Iowa Code section 124.410 (1997) — is without merit. During plea proceedings Dodge admitted, not to a future intent to purchase marijuana, but to the possession of marijuana on the date in question. The only marijuana to which such an admission could apply was clearly in excess of the one ounce accommodation limit of section 124.410.
Finally, we reject Dodge's pro se claim that his postconviction counsel was ineffective for failing to adequately develop both issues and evidence. We see no proof that any of the claimed deficiencies of counsel, if shown to exist, were sufficient to prejudice Dodge's case. See State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999).