Opinion
No. 2-625 / 01-1829
Filed September 11, 2002
Appeal from the Iowa District Court for Fayette County, Margaret L. Lingreen, Judge.
Jayson Keniston appeals from the dismissal of his application for postconviction relief. AFFIRMED.
Linda Hall of Gallagher, Langlas Gallagher, P.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, W. Wayne Saur, County Attorney, and J.D. Villont, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Hayden and Habhab, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Jayson Brooks Keniston appeals from the dismissal of his application for postconviction relief by the granting of a motion for summary judgment filed by the State. He asserts on the appeal that his postconviction relief counsel provided ineffective legal assistance.
On February 11, 1997, Keniston was charged with first-degree robbery in violation of Iowa Code sections 711.1 and 711.2 (1995). He was later also charged with escape from custody in violation of section 719.4.
Keniston, represented by counsel, offered to plead guilty by Alford plea to robbery in the second degree as a part of a plea bargain relating to all pending charges. Keniston also entered a plea of guilty to the escape charge as a part of the plea bargain.
Keniston was sentenced to a ten-year indeterminate term of incarceration for the crime of second-degree robbery and a five-year indeterminate term of incarceration for the crime of escape.
Keniston filed a notice of appeal, and the state appellate defender was appointed to represent him. In a motion for leave to withdraw filed by the State appellate defender, the attorney represented that the appeal was frivolous. She notified Keniston explaining in detail the consequence of a failure to respond within thirty days. Keniston did not respond. The Iowa Supreme Court determined the appeal was frivolous and dismissed the appeal.
Keniston filed a pro se application for postconviction relief. Patrick Wegman was appointed and appeared as counsel on his behalf in the postconviction proceedings. The State filed a motion for summary judgment pursuant to section 822.6 requesting that the application be dismissed. Wegman appeared personally at the hearing and presented arguments on behalf of Keniston resisting the motion. He had filed no written resistance nor filed briefs in response to the motion.
The trial court sustained the motion and dismissed the application for postconviction relief.
Standard of review. Ordinarily postconviction proceedings are law actions. Collins v. State, 588 N.W.2d 399, 401 (Iowa 1998). When a constitutional claim is implicated, appellate review is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001); State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). The right of an accused to effective assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and article 1, section 10 of the Iowa Constitution. Collins v. State, 588 N.W.2d at 401. The right to effective legal representation extends to counsel appointed to represent an applicant in postconviction relief. Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994). Thus, appellate review of a claim of ineffective assistance of counsel on postconviction relief is de novo. Collins v. State, 588 N.W.2d at 401.
Burden of proof. The applicant bears the burden of demonstrating ineffective assistance of counsel. State v. Speaks, 576 N.W.2d 629, 633 (Iowa Ct.App. 1998). To establish a claim of ineffective assistance of counsel, the applicant has the burden to prove: (1) counsel failed in an essential duty; and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma, 626 N.W.2d at 142; State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). The standards that apply to trial counsel also apply to subsequent counsel. Collins, 588 N.W.2d at 401. An ineffective assistance of counsel claim may be disposed of if the applicant fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Ramirez, 616 N.W.2d 587, 593 (Iowa 2000). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.
Ineffective assistance of postconviction counsel. The assertions submitted by Keniston on this appeal concerning the claim of ineffective assistance of postconviction counsel are threefold:
1) counsel failed to amend the pro se petition to allege ineffective assistance of appellate counsel;
2) counsel failed to file a resistance or any responsive pleading to State's motion for summary judgment;
3) counsel failed to have Keniston participate and testify at the hearing notwithstanding Keniston's desire and willingness to do so.
The determination whether the failure to amend the petition to allege ineffective assistance of appellate counsel is ineffective assistance of postconviction counsel is resolved by a determination whether such an allegation would be meritorious. Counsel is not ineffective when the issue counsel failed to raise has no merit. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999). To resolve this issue it is necessary to examine the merit of any claim of ineffective assistance of appellate counsel if it had been raised. The appellate defender who represented Keniston filed a motion to withdraw pursuant to Iowa Rule of Appellate Procedure 6.104(1) (formerly rule 104) and followed the prescribed procedure by notifying Keniston by letter of the action and specifically describing to him the process required to indicate disagreement, and a clear statement reflecting the effect if Keniston failed to do so. This is appropriate and prescribed procedure when, in the judgment of counsel, the appeal appears frivolous. Iowa R. App. P. 6.104.
Even if it were determined that some consideration should have been given by appellate counsel that a claim of ineffective assistance of trial counsel should have been made, the same standard is applied. If a claim of ineffective assistance of trial counsel does not have merit, the failure to raise the issue does not support a claim of ineffective assistance of appellate counsel.
Keniston pled guilty to the charge. A plea of guilty waives all defenses and objections which are not intrinsic to the plea itself. Speed v. State, 616 N.W.2d 158, 159 (Iowa 2000); State v. Antenucci, 608 N.W.2d 19, 19 (Iowa 2000). The written plea signed by Keniston contains the statement: "I represent to my lawyer and to the Court that the Minutes of Testimony accurately describe what happened in all significant aspects." The minutes of testimony detail the robbery of the convenience store and Keniston's involvement in it.
At the plea proceedings Keniston agreed that trial counsel did all he could to assist him and he was satisfied with counsel's advice. Trial counsel also stated to the court that he had a number of conversations with Keniston concerning potential trial strategies and that it was a joint decision to enter an Alford plea of guilty to a charge of second-degree robbery as part of a plea bargain. Keniston raised no issue with the correctness of this statement at the plea proceedings.
To establish prejudice in the context of a guilty plea the applicant must show "that there is a reasonable probability that, but for the counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1986); Irving v. State, 533 N.W.2d 538, 541 (Iowa 1995). A relevant factor is whether it can be determined to a reasonable probability that applicant would have been acquitted if he had gone to trial. Hill, 474 U.S. at 59, 106 S.Ct. at 370-371, 88 L.Ed.2d at 210.
Keniston has failed to carry the burden necessary to establish ineffective assistance of trial counsel. The claim of ineffective assistance of trial counsel is without merit. Thus any claim that appellate counsel was ineffective for failure to raise the issue of ineffective assistance of trial counsel is also without merit. Following the same reasoning, any assertion of ineffective assistance of appellate counsel by postconviction counsel would similarly also be without merit. The failure to amend the petition to assert such a claim in this case does not constitute ineffective assistance of counsel.
Keniston also claims that postconviction counsel was ineffective for failure to file written responses to the motion for summary judgment. Iowa Rule of Civil Procedure 1.981(3) directs the manner of response by a defending party to a motion for summary judgment. However, it is incumbent upon Keniston to support a conclusion that he was prejudiced by any failure of response. The court was presented with a stipulation adopted by the parties reflecting that if Keniston were to testify he would state that he did not fully understand his rights, and he had not been fully advised of his rights by appellate counsel. The issue of ineffective assistance of appellate counsel was before the trial court in the summary judgment proceedings. Keniston argues that the trial court in ruling on the motion for summary judgment concluded that there was no proof that trial counsel was ineffective, and was silent as to whether appellate counsel was ineffective, contending that the absence of such reference is a result of the postconviction counsel's failure to raise the issue in written response to the motion.
The fallacy of that argument is that the validity of any claim of ineffective assistance of appellate counsel depends on the merits of any claim of ineffective assistance of trial counsel and we determine, as did the trial court, that the claim of ineffective assistance of trial counsel was without merit. No prejudice can be attributed to Keniston by the failure of postconviction counsel to file a written response to the motion for summary judgment.
Keniston asserts that he was prepared to participate in the hearing and testify. The trial court had access to the stipulation previously referred to in this opinion. Notwithstanding that fact, the court ruled against Keniston. There is nothing presented to support a conclusion that the court would have ruled differently if Keniston had orally testified similarly to that presented in the stipulation. There is no requirement that the applicant be a participant in this civil postconviction hearing. Webb v. State, 555 N.W.2d 824, 826 (Iowa 1996).
Keniston's claim on this appeal depends on an initial determination that he received ineffective assistance of trial counsel. Failure to establish the merits of that claim, the claim of ineffective assistance of appellate counsel fails for the reason that it was based on a failure to assert a claim of ineffective assistance of trial counsel, and the claim of ineffective assistance of postconviction counsel fails for the same reason.
Keniston has failed to establish the claim of ineffective assistance of postconviction counsel in these proceedings. The trial court correctly dismissed the application on the motion for summary judgment.
AFFIRMED.