Opinion
No. 1-1042 / 01-0342.
Filed July 19, 2002.
Appeal from the Iowa District Court for Polk County, ARTIS L. REIS, Judge.
The defendant appeals the district court's denial of her postconviction relief application. AFFIRMED.
Paul Rosenberg of Paul Rosenberg Associates, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Gary Kendall, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.
Laura Jordison appeals the district court's denial of her postconviction relief application. Jordison contends the district court erred in denying her postconviction application because both her trial and appellate counsel were ineffective. She also contends she is entitled to a delayed appeal since her appellate counsel's failure to file an appellate brief on her behalf constructively denied her representation on appeal. We affirm.
I. Background Facts and Proceedings . Jordison and her passenger, Stephanie Pingel, were pulled over by Des Moines police due to a missing license plate and cracked windshield. Officers became suspicious of the women's furtive movements in the car as they approached, and separated the two women. When officers requested Pingel's identification, she produced a paper indicating she was on probation for carrying a gun. The officers removed Pingel from the vehicle, handcuffed her, and conducted a consent search. Within the closed center console, the officers discovered six individual amounts of methamphetamine, $275 in cash, and a billfold containing drug paraphernalia.
Both women denied any knowledge of the drugs. Jordison claimed her car had recently been stolen and recovered and she had no knowledge regarding processing or inventory of the vehicle. She maintained she had not cleaned out the vehicle when it was returned and was unaware of the console's contents. Both women were arrested. Jordison was charged with possession of a controlled substance (methamphetamine) with intent to deliver, in violation of Iowa Code section 124.401(1)(b)(7) (1999), and failure to possess a drug tax stamp, in violation of sections 453B.3 and 453B.12.
Following a joint bench trial, Jordison was found guilty as charged. Pingel was acquitted of all charges. Jordison's family retained the services of attorney Alan Bernard for her appeal. Bernard filed a notice of appeal, prepared an appellate brief, and showed the brief to Jordison. However, he failed to file it and was served a notice of default. Bernard failed to cure the default and Jordison's appeal was dismissed.
Instead of filing a request for a delayed appeal, Jordison retained new counsel and filed a postconviction relief action. Jordison argued trial counsel was ineffective in failing to (1) argue for severance from the trial against Pingel, and (2) object to the admission of hearsay statements. She additionally contended she should be afforded a delayed appeal due to the presumptively prejudicial failure of appellate counsel to file an appellate brief. The postconviction court ruled that although appellate counsel's performance was substandard, Jordison did not suffer any prejudice. The court additionally concluded trial counsel was not ineffective. Jordison has appealed.
II. Procedural Issues . Jordison requests this court grant her a delayed appeal because her appellate counsel was presumptively ineffective in failing to file her appellate brief. The State argues the postconviction court should have addressed the question of whether appellate counsel was ineffective and referred the request for a delayed appeal to the supreme court. The State requests we consider Jordison's postconviction relief action as a request for a delayed appeal, grant it, and address the underlying merits.
The supreme court has recognized its inherent authority to grant delayed appeals in those instances where a valid due process argument might be advanced should the right of appeal be denied. Swanson v. State, 406 N.W.2d 792, 793 (Iowa 1987). Relief in criminal cases has been granted when counsel's procedural errors have denied a defendant's clearly expressed intention and good faith effort to appeal. See State v. Anderson, 308 N.W.2d 42, 46 (Iowa 1981). A defendant, however, may not seek a delayed appeal by filing an application for postconviction relief. Cleeson v. Brewer, 201 N.W.2d 474, 476 (Iowa 1972).
Rather than filing a request for reinstatement of the appeal, the defendant chose to proceed with a postconviction relief application claiming ineffective assistance of trial and appellate counsel. We therefore decline to treat this case as a request for a delayed appeal. Rather, we review this case under the standards of a postconviction relief action. Postconviction relief proceedings are generally treated as actions at law. Risdal v. State, 573 N.W.2d 261, 263 (Iowa 1998). Where, however, a defendant claims a constitutional violation, we review the claim in the light of the totality of the circumstances and the record upon which the postconviction court's ruling was made. Id.
It is not disputed appellate counsel in the present case was ineffective in failing to file Jordison's appellate brief. The postconviction court, however, ruled that while appellate counsel's performance was substandard, Jordison did not suffer any prejudice because she failed to show that but for counsel's alleged errors, the result of the trial would have been different.
Although our courts have not directly addressed the issue of whether it is presumptively prejudicial if appellate counsel fails to file a brief, our courts have recognized the failure of an attorney to perfect an appeal can constitute ineffective assistance of counsel resulting in a due process violation. See Heath v. State, 372 N.W.2d 265, 266 (Iowa 1985). The United States Supreme Court in Penson v. Ohio, 488 N.W.2d 75, 85-88, 109 S.Ct. 346, 353-54, 102 L.Ed.2d 300, 313-14 (1988) ruled that where counsel has been ineffective, resulting in a constructive denial of counsel, a defendant need not demonstrate prejudice. Other jurisdictions have concluded where appellate counsel fails to file an appellate brief, prejudice is presumed, and the defendant need not satisfy the prejudice prong of the ineffective assistance of counsel test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Nixon v. Singletary, 758 S.W.2d 618, 622 (Fla. 2000); Mitchell v. State, 971 P.2d 727, 731 (Idaho 1998); Rowland v. State, 452 S.E.2d 756, 758-59 (Ga. 1995); Young v. Oklahoma, 902 P.2d 1089, 1090-91 (Okla.Cr. 1994).
While we agree appellate counsel's performance was substandard, we disagree with the conclusion Jordison was required to prove that but for appellate counsel's alleged failure, the result of the appeal would have been different. Where appellate counsel fails to file a brief resulting in the dismissal of the appeal, prejudice will be presumed. We therefore presume appellate counsel's failure to file a brief was prejudicial, and turn to an examination of Jordison's claims of ineffective assistance of trial counsel.
III. Ineffective Assistance . Jordison claims trial counsel was ineffective for not seeking a severance of trials and failing to properly object to the admission of hearsay statements made by Pingel. We find no merit to these claims.
Jordison's asserts trial counsel's failure to file a motion to sever resulted in the admission of hearsay statements made by Pingel against her in violation of the rule enunciated in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). During cross-examination, the county attorney elicited testimony from Pingel regarding statements she made to the police at the time of the arrest claiming Jordison owned the methamphetamine and her boyfriend had previously purchased the drug through Jordison. She contends these statements are precisely the type that required severance in Bruton.
We find Jordison's reliance on Bruton to be misplaced. Bruton holds the Confrontation Clause of the Sixth Amendment makes inadmissible a non-testifying codefendant's confession incriminating the other defendant. Bruton, 391 U.S. at 126, 88 S.Ct. at 1622, 20 L.Ed.2d at 479. Where a codefendant testifies and is subject to cross-examination, Bruton is inapplicable. State v. Glessner, 572 N.W.2d 562, 564 (Iowa 1997). In the present case, Pingel testified and was subject to cross-examination. Thus, there was no Bruton violation. Jordison does not argue she was entitled to severance under Iowa Rule of Criminal Procedure 2.6(4). We therefore need not address that issue.
Jordison also contends trial counsel was ineffective in failing to properly lodge a hearsay objection to Pingel's statements made to the police. Hearsay is defined as a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Iowa R. Evid. 5.801. Hearsay is not admissible, except as provided by the Iowa Constitution, by statute, by the rules of evidence, or by other rules of the Iowa Supreme Court. Iowa R. Evid. 5.802. If hearsay is admitted, prejudice to the nonoffering party is presumed unless the contrary is affirmatively established. State v. Rice, 543 N.W.2d 884, 887 (Iowa 1996). Admission of hearsay alone is not a valid ground for reversal in cases where the State proves the challenged evidence did not impact upon the fact-finder's verdict of guilty. Id.
At trial, Pingel testified she did not know to whom the drugs belonged. Her prior inconsistent statement that she believed the drugs belonged to Jordison impeached this testimony. Jordison contends this statement was hearsay and should not have been admitted. Where, however, evidence is offered to impeach a witness, it is not offered to prove the truth of the matter asserted and thus not hearsay. State v. Sowder, 394 N.W.2d 368, 370 (Iowa 1986). It is clear the State offered these statements not to prove the truth of the matter asserted, but to impeach Pingel's statements at trial. Trial counsel was therefore not ineffective in failing to object to the admission of those statements.
Jordison also contends Pingel's statements regarding her boyfriend's purchase of drugs from Jordison were hearsay. When asked whether she knew where her boyfriend obtained methamphetamine, Pingel responded, "At one time, he went through [Jordison]." Later on, Pingel stated "I know that he got it through her before. I don't know that he got it from her. I know he went through her." Pingel additionally testified that she had never purchased drugs from Jordison nor was she offered any.
Although it is not totally clear from the record whether Pingel had personal knowledge of Jordison's sales to her boyfriend, we conclude the statements were neither made out-of-court nor are they hearsay. While trial counsel may have plausibly objected to the statements based on lack of personal knowledge under Iowa Rule of Evidence 5.602, our courts have recognized that even in the absence of conclusive evidence, a declarant's statements may be considered personal knowledge by inference if the facts support such a finding. State v. Rawlings, 402 N.W.2d 406, 409 (Iowa 1987). The evidence supports an inference Pingel had personal knowledge of her boyfriend's prior drug transactions with Jordison. Furthermore, given the fact the trial was to the bench, any prejudice resulting from their admission was significantly lessened. State v. Geier, 484 N.W.2d 167, 172 (Iowa 1992).
We therefore affirm the district court's denial of Jordison's postconviction relief action.
AFFIRMED.