Opinion
No. 4-804 / 04-0353
Filed February 24, 2005
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.
Applicant appeals from the district court's denial of his application for postconviction relief. AFFIRMED.
Jesse Macro, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney General, John Sarcone, County Attorney, and Stephanie L. Cox, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, Hecht and Eisenhauer, JJ.
Richard Shiner appeals from the district court's denial of his application for postconviction relief. He contends the district court erred in denying his application because his counsel was ineffective in a number of respects. We affirm.
I. Background Facts and Proceedings.
In December 1999, Shiner was charged with conspiracy to manufacture a controlled substance and manufacturing a controlled substance. He was charged with four co-defendants. Three of the co-defendants accepted a plea agreement. Shiner and his fiancée were left to face trial on the charges.
On the day before trial, Shiner and his fiancée notified the State of their acceptance of the State's plea offer. On the day set for trial, they attempted to plead guilty. However, when it came time to admit the crimes, they requested the court allow them to waive a jury trial and proceed with a trial on the minutes. The court denied their request. Shiner and his fiancée then attempted to enter an Alford plea, which the court refused.
Following a jury trial, Shiner was convicted of both charges. His fiancée was acquitted. Shiner appealed his conviction to this court and was affirmed in State v. Shiner, No. 00-1210 (Iowa Ct.App. Feb. 20, 2002).
Shiner filed an application for postconviction relief alleging ineffective assistance of trial and appellate counsel. He claimed his trial counsel was ineffective in (1) failing to establish a good cause for the waiver of a jury, (2) failing to object to splitting six preemptory strikes between the two defendants during the voir dire process, (3) failing to object to hearsay evidence contrary to a ruling in limine, and (4) failing to sever his trial from his fiancée's. He further claimed his appellate counsel was ineffective in failing to raise these issues on direct appeal.
Following a hearing, the district court denied Shiner's application. It concluded trial counsel did not breach any essential duty. Shiner appeals.
II. Scope and Standard of Review.
Normally, a trial court's denial of a postconviction relief action is reviewed for correction of errors at law. Fenske v. State, 592 N.W.2d 333, 338 (Iowa 1999). Where, however, the applicant asserts violations of constitutional safeguards, such as effective assistance of counsel, our review is de novo. Giles v. State, 511 N.W.2d 622, 627 (Iowa 1994).
III. Ineffective Assistance of Counsel.
Shiner contends the district court erred in denying his application for postconviction relief because his trial counsel was ineffective in several ways. Shiner must also show his appellate counsel was ineffective in failing to present these claims on direct appeal. See Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999) (holding ineffective assistance of appellate counsel may provide sufficient reason for failing to raise a claim of ineffective assistance of trial counsel on direct appeal). If we determine Shiner has not established a sufficient ineffective assistance claim against his trial counsel, we need not address the ineffective assistance of appellate counsel claim. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001).
To prevail on a claim of ineffective assistance of counsel, Shiver must show that his attorney's performance fell outside the normal range of competency, and the deficient performance so prejudiced his case as to give rise to a reasonable probability that, but for counsel's alleged errors, the outcome of the proceedings would have been different. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). There is a strong presumption counsel performed competently, and the claimant has the burden to prove that counsel was ineffective. Id. An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
A. Waiver of Jury Trial.
Shiner first contends his trial counsel erred in "failing to establish good cause for the waiver of a jury" on the day of trial. He alleges good cause could have been established by the fact all other co-defendants were granted stipulated trials, and by the actions he took to accept the plea agreement.
Iowa Rule of Criminal Procedure 2.17 states:
Cases required to be tried by jury shall be so tried unless the defendant voluntarily and intelligently waives a jury trial in writing and on the record within 30 days after arraignment, or if no waiver is made within 30 days after arraignment the defendant may waive within ten days after the completion of discovery, but not later than ten days prior to the date set for trial, as provided in these rules for good cause shown, and after such times only with the consent of the prosecuting attorney.
It is the legislature's prerogative to decide whether, and under what circumstances, the right to a jury trial may be waived. State v. Mann, 512 N.W.2d 814, 816 (Iowa Ct.App. 1993).
On the day before trial was scheduled to begin, Shiner and his fiancée notified the State they would accept the plea offer. On the day of trial, the fiancé's counsel requested a trial on the minutes of testimony as opposed to a guilty plea. The court refused to accept this proposal because the minutes of testimony were insufficient to convict Shiner's fiancée.
The plea agreement was contingent upon both Shiner and his fiancée making the same plea. Shiner's complaint is not about his right to a jury trial. He wanted a trial based on the minutes of testimony leading to a conviction of the reduced charge contained in the plea agreement. Because the court would not accept the arrangement, the plea offer was no longer valid. Therefore, his counsel did not breach an essential duty in failing to show good cause as to why he made a late waiver of jury trial. Furthermore, to deny a defendant a bench trial by refusing to grant his motion to waive a jury trial only subjects him to a trial by an impartial jury. Id. We find no basis for reversal.
B. Testimony in violation of motion in limine.
Shiner next contends his counsel was ineffective in failing to object to testimony regarding a citizen complaint.
Prior to trial, the district court granted Shiner's motion in limine to prohibit "any reference to the anonymous complaint of strong odors and high traffic made by an unidentified complainant." During trial, a police officer testified that an investigation of Shiner's activities began after an anonymous complaint was received. The substance of the complaint was not revealed.
We conclude the limited testimony revealing the police obtained a search warrant following a complaint did not violate the motion in limine and was not prejudicial to Shiner. No reference was made to strong odors or high traffic. The testimony did not prove the existence of illegal activity at the home, but rather explained why a search was conducted.
C. Motion to sever trials.
Shiner contends his counsel was ineffective in failing to file a motion to sever the trials of himself and his fiancée. At trial, Shiner testified and admitted to his criminal record in an effort to showcase his fiancée's innocence. Shiner contends that in contrast to his innocent fiancée, he appeared to be guilty. He claims that if tried separately, he would not have needed to testify on his fiancée's behalf, or he would have been tried before her and therefore would be free to testify without concern for himself.
Iowa Rule of Criminal Procedure 2.6(4)( b) states:
When an indictment or information jointly charges two or more defendants, those defendants may be tried jointly if in the discretion of the court a joint trial will not result in prejudice to one or more of the parties. Otherwise, defendants shall be tried separately. When jointly tried, defendants shall be adjudged separately on each count.
In order to show prejudice, the co-defendants' defenses must be more than merely antagonistic to one and another. State v. Olsen, 482 N.W.2d 452, 455 (Iowa Ct.App. 1992). Severance is only mandated where the defenses conflict to the point of being irreconcilable and mutually exclusive. Id. Such conflict exists where, in order for the jury to believe one defendant, they must necessarily disbelieve a co-defendant. Id. Shiner's reasons for wanting a separate trial are not sufficient to warrant severance.
Because Shiner has not shown his trial counsel rendered ineffective assistance, we affirm the district court's order denying his application for postconviction relief.