Opinion
No. 2-1000 / 02-0487
Filed January 15, 2003
Appeal from the Iowa District Court for Johnson County, L. Vern Robinson, Judge.
Defendant appeals his conviction and sentence, following a bench trial, for second-degree burglary in violation of Iowa Code sections 713.1 and 713.5 (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, J. Patrick White, County Attorney, and Emily Colby, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Eisenhauer, JJ.
Defendant-appellant Keith Antonio Smith appeals his conviction and sentence, following a bench trial, for second-degree burglary in violation of Iowa Code sections 713.1 and 713.5 (1999). On appeal defendant requests preservation of his ineffective assistance of counsel claim for postconviction relief. We affirm defendant's conviction but preserve his ineffective assistance claim for possible postconviction proceedings.
According to the ruling on the motion to suppress as well as the trial court's findings of fact, following a burglary at his residence Mr. Richey Thongvahn told police two uninvited individuals had come to a party at the residence and that one of their names had been "Skinny." Officer Lorence of the Iowa City Police Department knew defendant's street name was "Skinny." Officer Lorence and at least two other officers went to an address where they were aware defendant spent a considerable amount of time. After observing defendant outside, the officers observed defendant proceed into an apartment and shut the door. Defendant came out again and spoke with one officer while another officer knocked on the apartment door. Another individual opened the door. The other officer heard noises sounding like people running, even though the individual at the door denied any additional people other than a baby were in the apartment. As the nature of the investigation was stolen guns, the police conducted a protective search of the apartment, uncovering three other people inside.
Following this protective search the State claims the officers obtained valid consent to conduct a search of the apartment. That search resulted in the discovery of the missing guns. The lessee of the apartment, Rachel Horn, who was defendant's companion's sister, apparently consented to the search. Following the discovery of the guns, defendant confessed to stealing them.
On appeal defendant claims Ms. Horn's consent was coerced, it was therefore involuntary, and that the gun evidence and defendant's statements following their discovery should be suppressed as the products of an unlawful search. See State v. Reinier, 628 N.W.2d 460, 465 (Iowa 2001). Defendant claims his trial counsel was ineffective for failing to subpoena Ms. Horn for purposes of demonstrating the "subtle coercion" used by the officers in obtaining her consent.
The State responds that defendant has made only general claims of ineffective assistance, and that he has provided no affirmative factual basis from the record showing evidence of the involuntariness of Ms. Horn's consent. To warrant a finding of ineffective assistance of counsel, the circumstances must include an affirmative factual basis demonstrating counsel's inadequacy of representation. State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981). The State also argues Ms. Horn's consent did not result from coercion, that any statements able to be construed as possible coercion occurred after consent had been given and the search completed, and that furthermore, defendant has no standing to challenge the search.
Ineffective assistance claims are reviewed de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). In order to prevail upon a claim of ineffective assistance of counsel, a defendant must demonstrate 1) counsel failed to perform an essential duty, and 2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). Both elements must be proved by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted).
Ordinarily, we preserve ineffective assistance of counsel claims for postconviction proceedings. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). Such claims may be resolved on direct appeal if the record adequately presents the issues. Id. We conclude this record is insufficient to address the issues raised and therefore preserve defendant's claim for postconviction proceedings.