Opinion
No. 4-800 / 03-1814
Filed January 26, 2005
Appeal from the Iowa District Court for Linn County, William L. Thomas, Judge.
Applicant-appellant, David Kostman, appeals the denial of his application for postconviction relief. AFFIRMED.
Phillip B. Mears, of Mears Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, Harold Denton, County Attorney, and Todd Tripp, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
David Kostman, applicant-appellant, appeals the denial of his application for postconviction relief. Kostman argues that his trial counsel provided ineffective assistance by failing to call his court-appointed psychologist to testify in an effort to cast doubt on the reliability of Kostman's confession. He also argues his appellate counsel was ineffective in his direct appeal because counsel did not preserve Kostman's claim of ineffective assistance of trial counsel for postconviction relief. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
David Kostman, applicant-appellant, was convicted of one count of lascivious acts with a child as a habitual offender and sexual predator, in violation of Iowa Code sections 709.8, 902.8, and 910A.2 (1997). Kostman was charged by trial information in 1996 with lascivious act with a child after he allegedly engaged in sexual acts with a thirteen-year-old boy. Kostman was found guilty after a trial in 1997, in which the victim testified as to three sexual encounters with Kostman in Kostman's home. Other testimony included that of Detective Tina Debben, who interviewed Kostman and obtained a confession from him that was reduced to writing and signed by Kostman.
Trial counsel for Kostman did not call Dr. Dan Rogers, the court-appointed psychologist who evaluated Kostman, to testify. At a hearing on Kostman's motion to suppress his confession, Dr. Rogers testified that Kostman had a relatively low verbal I.Q. and that he was essentially unable to read, making it unlikely he could have understood the Miranda warnings. Dr. Rogers further testified that Kostman was suggestible, that he could be easily manipulated, and that he would have said anything to end the police interrogation. However, Kostman's motion to suppress was denied and his trial counsel did not call Dr. Rogers to repeat his testimony at trial. At the postconviction relief hearing, both members of Kostman's defense team indicated that Dr. Rogers was not called for fear evidence of Kostman's prior record would be admitted.
At sentencing, Kostman was adjudged a habitual offender based upon six prior felony convictions for lascivious acts with a child. He was sentenced to an indeterminate prison term of thirty years after the district court applied the habitual offender and sexual predator enhancement provisions.
On direct appeal in 1998, Kostman argued there was insufficient evidence and that the enhanced sentence was inappropriate. He did not raise a claim of ineffective assistance of trial counsel on direct appeal, the ground that he now alleges in his application for postconviction relief. The supreme court affirmed his conviction. In 2000 Kostman brought a motion to correct an illegal sentence in the district court. The motion was granted and his sentence was reduced to an indeterminate prison term of fifteen years.
A hearing was held on Kostman's application for postconviction relief in August of 2003. The district court denied Kostman's application. On appeal of that denial, Kostman argues that his trial counsel and his appellate counsel were ineffective. He argues his appellate counsel was ineffective in failing to preserve the claim of ineffective assistance of counsel for postconviction relief. He argues his trial counsel was ineffective due to the failure to call Dr. Rogers at trial to raise doubt as to the reliability of his confession to the police.
II. ANALYSIS.
Because a claim of ineffective assistance of counsel implicates constitutional rights, our review is de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
To establish an ineffective assistance of counsel claim, the defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999); State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). The test of ineffective assistance of counsel focuses on whether the performance by counsel was reasonably effective. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The defendant must show that counsel's performance fell below an objective standard of reasonableness so that counsel failed to fulfill the role in the adversary process that the Sixth Amendment envisions. Id. A strong presumption exists that counsel's performance falls within the wide range of reasonable professional assistance. Wemark, 602 N.W.2d at 814. The defendant has the burden of proving by a preponderance of the evidence both elements of a claim of ineffective assistance. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989).
Due to Kostman's failure to preserve error as to his ineffective assistance of counsel claim against trial counsel on direct appeal, we first address whether appellate counsel was ineffective by failing to preserve error. Counsel is not ineffective for failing to raise a meritless issue. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999). Therefore, we must determine whether there is any merit to the claim that appellate counsel should have preserved the ineffective assistance claim. To do so, we examine Kostman's underlying claim that his trial counsel was ineffective, because if his trial counsel was ineffective then his appellate counsel may have been ineffective for failing to preserve error on that issue.
Kostman argues his trial counsel should have called Dr. Rogers to attempt to impeach his confession as unreliable. Improvident trial strategy, miscalculated tactics, mistake, carelessness, or inexperience do not necessarily amount to ineffective assistance of counsel. State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981). A defendant is not entitled to perfect representation, but rather only that which is within the range of normal competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000); Cuevas v. State, 415 N.W.2d 630, 632 (Iowa 1987). To warrant a finding of ineffective assistance of counsel, the circumstances must include an affirmative factual basis demonstrating counsel's inadequacy of representation. Aldape, 307 N.W.2d at 42.
After de novo review, we agree with the postconviction court's conclusion that trial counsel's choice not to call Dr. Rogers to testify was a reasonable strategic and tactical decision. The fact that the decision may have, with hindsight, not achieved the desired result is irrelevant. Both members of Kostman's defense team indicated that they had significant concern about the possibility of Kostman's prior convictions coming up in the trial testimony. For this reason they chose not to call Dr. Rogers. Kostman had been convicted of lascivious acts with a child on six prior occasions. Dr. Rogers had knowledge of Kostman's sexual abuse history and that history could have come up had he been called to testify. Specifically, in his testimony at the motion to suppress hearing, Dr. Rogers testified that Kostman did not understand the Miranda warnings he received in this case. That testimony could have opened the door to the fact that Kostman had previous involvement with the criminal justice system and that he had been given Miranda warnings at least four previous times. While hindsight reveals that it may have been beneficial to call Dr. Rogers to testify, it was reasonable for trial counsel to avoid calling Dr. Rogers in an effort to keep the jury from hearing about Kostman's past convictions; the strategy was well within the range of reasonable professional competence. We will not second guess the course of action when choosing between equally hazardous options. See State v. Risdal, 404 N.W.2d 130, 133 (Iowa 1987); see also State v. Wilkins, 346 N.W.2d 16, 19 (Iowa 1984).
Having determined that Kostman's claim of ineffective assistance of trial counsel fails, we also conclude Kostman's claim his appellate counsel was ineffective also fails because his appellate counsel had no duty to raise or preserve a meritless claim on direct appeal.