Opinion
No. 4-867 / 04-0351
Filed January 13, 2005
Appeal from the Iowa District Court for Lee (South) County, R. David Fahey, Jr. Judge.
Applicant appeals from the district court's denial of his application for postconviction relief. AFFIRMED.
John Wright of Wright Law Firm, Fort Madison, for applicant-appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Michael Short, County Attorney, and Bruce McDonald, Assistant County Attorney, for respondent-appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Michael Kelly Jeffrey appeals from the district court's denial of his application for postconviction relief. He contends his trial counsel rendered ineffective assistance. We review his claim de novo. See Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). In order to prevail, Jeffrey must prove by a preponderance of the evidence deficient performance and prejudice. See id. at 142.
Jeffrey was convicted of first-degree kidnapping and first-degree robbery. This court upheld his convictions. State v. Jeffrey, No. 02-0353 (Iowa Ct.App. Jan. 15, 2003). The issues of whether counsel was ineffective in failing to move for a judgment of acquittal and whether counsel was ineffective in failing to advise Jeffrey of an Alford plea were preserved for postconviction relief. On May 8, 2003, Jeffrey filed an application for postconviction relief, followed by an amended application. Following a January 2004 hearing, the district court denied Jeffrey's application. Jeffrey contends his trial counsel breached a professional duty in failing to move for a judgment of acquittal urging insufficient evidence of his intent to inflict serious injury. To be convicted of first-degree kidnapping or first degree robbery, the State was required to prove Jeffrey intended to inflict serious injury on his victim. See Iowa Code §§ 710.2, 711.1. Jeffrey's intent may be determined by reasonable inference and deduction drawn from the facts. State v. Salkil, 441 N.W.2d 386, 387 (Iowa Ct.App. 1989).
We conclude Jeffrey's counsel did not breach an essential duty in failing to move for judgment of acquittal on this ground. Jeffrey's victim testified at trial regarding the extent of his injuries, including the loss of a front tooth, a broken wisdom tooth, cuts to his forehead, and a hole in his lip. These injuries were inflicted upon the victim after he lost consciousness. Jeffrey then left the victim in an isolated area without medical attention. One can reasonably infer Jeffrey intended to inflict serious injury to his victim. Accordingly, any motion for judgment of acquittal on this basis would have failed, and trial counsel was not required to bring such a meritless motion.
Jeffrey also contends his trial counsel breached an essential duty in failing to advise him on an Alford plea. Jeffrey's counsel did describe an Alford plea to him without referring to it by name. The evidence also indicates the State and Jeffrey were never close to reaching a mutually agreeable plea arrangement. Accordingly, counsel did not breach an essential duty.
Finally, Jeffrey contends his counsel was ineffective in failing to call the deputy sheriff as a witness. Although Jeffrey did not preserve this claim on direct appeal, the State did not make this "failure to preserve" claim in its response to Jeffrey's application for postconviction relief. Accordingly, we may consider its merits on appeal. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002).
Jeffrey contends his counsel was ineffective in failing to call the deputy sheriff as a witness because he could potentially exonerate Jeffrey. The deputy sheriff's testimony would have impeached the victim's version of events. Trial counsel testified he believed this impeachment had already been accomplished, and therefore calling the sheriff's deputy would have been cumulative. We conclude counsel did not breach an essential duty in failing to call the witness.
We affirm the district court's denial of Jeffrey's application for postconviction relief.