Opinion
No. 4-862 / 03-1173
Filed February 24, 2005
Appeal from the Iowa District Court for Story County, Ronald H. Schechtman, Judge.
Applicant appeals from district court's dismissal of his application for postconviction relief. AFFIRMED.
Terrance Walker, Des Moines, appellant pro se.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, and Stephen H. Holmes, County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Terrance Walker appeals from the district court's dismissal of his application for postconviction relief. We affirm.
I. Background Facts and Proceedings.
On September 13, 1995, Terrance Walker signed a subpoena before a notary public, Dorinne De Krey. By his signature Walker certified he had personally served a minor witness, Chance Beardon. Although the notary did not administer an oath to Walker on this occasion, she had previously notarized a number of documents for Walker, and had previously given Walker admonitions regarding truthfulness. De Krey believed Walker knew he was signing the proof of service under oath. After De Krey notarized the subpoena, but before Walker left De Krey's office, he indicated that he had yet to serve Beardon. When De Krey pointed out Walker had just sworn that he had already served the witness, Walker stated he was "going to do it right now," and left the office. However, Walker did not personally serve Beardon. Rather, Walker gave the subpoena to his girlfriend's daughter, who attended the same school as Beardon, and instructed the child to give the subpoena to Beardon at school.
Walker presented the subpoena to the district court on September 14, 1995, in the course of a simple misdemeanor traffic hearing. The judge, who had been previously apprised of the mode of delivery by the principal of Bearden's school, questioned Walker about the service and whether he had in fact personally served Bearden. Rather than answering directly, Walker stated, "Won't you believe the back of the subpoena?"
The State subsequently changed Walker with perjury in violation of Iowa Code section 720.2 (1995), and tampering with records in violation of section 715A.5. Following trial a jury returned a guilty verdict on each count. The convictions and sentences were upheld by the supreme court on direct appeal. See State v. Walker, 574 N.W.2d 280 (1998) ( Walker I).
Walker was also charged with false representation of records or process in violation of Iowa Code section 720.5, but that charge was later dismissed.
In upholding the perjury conviction the court determined that a person could be "under oath" in the context of the perjury statute so long as that person's "conscience was bound by the events which took place." Id. at 286. Looking to Iowa's statutory and case law, as well as case law from other jurisdictions, the court concluded that a formal administration of an oral oath was not required. Id. at 286-87. In upholding the tampering charge the court concluded the term "falsifies" should be given its plain and ordinary meaning, and that Walker's actions in making false statements on the proof of service fit within that plain and ordinary definition. Id. at 289-90.
Walker timely filed a pro se application for postconviction relief, which was later supplemented by counsel. Following an evidentiary hearing, the district court dismissed the postconviction application. Walker appeals.
II. Scope of Review.
Postconviction relief proceedings are reviewed for the correction of errors at law. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). However, claims that raise constitutional issues, such as the alleged ineffective assistance of counsel, are reviewed de novo. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
III. Discussion.
Walker's claims center on the ineffective assistance of appellate counsel. To establish ineffectiveness assistance of counsel, Walker must prove his attorney's performance fell below "an objective standard of reasonableness," and "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). The ineffective assistance claims may be disposed of if Walker fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999).
Walker first asserts that appellate counsel was ineffective for failing to consult or communicate with him, "master the record," and accurately cite to the record. In essence, this claim is based on alleged failures by counsel to properly discover and present certain facts and arguments on appeal surrounding Walker's use or intended use of the subpoena, or his representation of surrounding facts and circumstances in the simple misdemeanor hearing. However, most of these facts and arguments have no impact upon Walker's perjury and tampering convictions, which were based wholly on his "actions and statements at the time of the notarization of the proof of service on the subpoena, not the statements made . . . regarding the accuracy of the subpoena at his simple misdemeanor trial." Walker, 574 N.W.2d at 282.
Moreover, to the extent the facts and arguments are relevant to the perjury or tampering convictions, they were either clearly known to the supreme court in Walker I, or have so little impact upon the convictions that their inclusion in the direct appeal would not have created a reasonable probability of a different outcome. Accordingly, Walker has not established that he was prejudiced by any of these alleged failures. See Atwood, 602 N.W.2d at 784.
Walker's primary allegations of ineffective assistance of appellate counsel center on appellate counsel's alleged failure to raise on direct appeal the three "clearly stronger issues" Walker is now asserting on postconviction review. Those issues are stated by Walker as follows: (1) Walker's due process rights were violated in the state court's ex post facto construction of the element of an oath as being proved, though not administered; (2) Walker's due process rights were violated in the state court's ex post facto construction of the element of "falsifies" in the tampering statute as being a "false entry"; and (3) Walker was denied unanimous jury instructions on the means in which the oath occurred and the means in which a falsification occurred. A. Ex Post Facto Claims.
When a claim in a postconviction relief proceeding is premised on either trial error or the ineffective assistance of trial counsel, and that claim was not raised on direct appeal, the applicant must establish both a "sufficient reason" or "cause" for the failure to raise the claim on direct appeal, and actual prejudice. Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998). Cf. 2004 Iowa Acts ch. 1017, § 2 (codified at Iowa Code § 814.7 (2005) (providing, effective July 1, 2004, and thereafter, that ineffective assistance of counsel claims can be determined in the first instance in a postconviction proceeding, even if not raised in a direct appeal). Generally, however, a sufficient reason or cause is provided by the ineffective assistance of appellate counsel. Osborn, 573 N.W.2d at 921.
We begin by noting that Walker's first two claims relate to issues decided adversely to Walker on direct appeal: (1) that he was not "under oath" in the context of the perjury statute because De Krey did not formally administer an oath, and (2) that his actions did not come within the definition of "falsifies" as used in the tampering statute because falsifies, in this context, contemplates only a change or alteration to a document, and not a false statement. To the extent Walker's claims in the postconviction proceeding reassert issues and arguments made on direct appeal, they are barred. See Jones v. Scurr, 316 N.W.2d 905, 911 (Iowa 1982).
Walker asserts that he is in fact raising new and different claims in the postconviction proceedings. He contends that while the ultimate questions may have been decided in the State's favor on direct appeal, the interpretations of "under oath" and "falsifies" used during trial and affirmed on direct appeal are in fact ex post facto pronouncements, allowing the State to unconstitutionally punish him for conduct that was not criminal when the conduct took place. Walker asserts that, if his appellate counsel had raised these constitutional arguments on direct appeal, there is a reasonable probability the supreme court would have concluded the interpretations utilized by the district court served to criminalize his conduct without fair notice. After due consideration of all of Walker's arguments, we cannot agree.
To the extent Walker is criticizing the supreme court's analysis in Walker I, his contentions are without merit. Postconviction proceedings are not a form of collateral attack on supreme court decisions. Once procedendo issued in the initial appeal, the supreme court's opinion became law of the case, binding upon this court in a later appeal. See State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987).
The United States Constitution forbids ex post facto laws. See U.S. Const. art. I, § 10, cl. 1. "[L]aws that impose punishment for an act that was not punishable when committed" violate this constitutional provision. State v. Pickens, 558 N.W.2d 396, 397 (Iowa 1997). The proscription applies equally to legislative enactments and judicial constructions. Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S. Ct. 1697, 1702, 12 L. Ed. 2d 894, 900 (1964).
The interpretations of "under oath" and "falsifies" approved by the supreme court constitute an ex post facto violation only if they were "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." Id. at 354, 84 S. Ct. at 1702, 12 L. Ed. 2d at 900 (citation and internal quotation marks omitted). Stated another way, "a state court's construction of a criminal statute [must be] so unforeseeable as to deprive the defendant of the fair warning to which the Constitution entitles him." Id. Neither interpretation in Walker I meets this standard.
Iowa Code section 720.2 (1995), defining perjury, required that a false statement or denial of material facts be made by a person "while under oath or affirmation in any . . . matter in which statements under oath or affirmation are required or authorized by law." Walker, pointing to case law and a comment to former Iowa Rule of Evidence 603 (now Iowa R. Evid. 5.603), asserts that prior to the decision in Walker I, a person was "under oath" only if an oath had been formally administered at the time of the false statement or denial. However, a review of the supreme court's opinion in Walker I makes it clear that the court was interpreting the phrase "under oath" consistent with existing Iowa statutory and case law. Walker, 574 N.W.2d at 284-88. As the supreme court subsequently recognized in City of Cedar Rapids v. Atsinger, 617 N.W.2d 272, 275 (Iowa 2000), " Walker was only being consistent with earlier decisions of this court holding that the formality of an oral recitation of the oath is not necessary."
Moreover, former rule 603, which does expressly provide for the administration of an oath, applies to a "testifying . . . witness," and furthermore applies in a "proceeding in the courts of this state." See Iowa R. Evid. 5.1101 (formerly Iowa R. Evid. 1101). Thus, the rule contemplates the administration of an oath in an evidentiary proceeding. It has no application to the circumstance appearing here, wherein the defendant has made a materially false statement in an out-of-court, non-testimonial setting.
We similarly reject Walker's second ex post facto claim. Section 715A.5 states, in pertinent part, that a person commits the offense of tampering with records when, "knowing that [he or she] has no privilege to do so, the person falsifies, destroys, removes, or conceals a writing or record, with the intent to deceive . . . anyone. . . ." Walker contends that, because the crime is "tampering" with records, "falsifies" must refer, not to simply making a false statement, but to some form of alteration or change. See Black's Law Dictionary 1494 (8th ed. 2004) (defining tamper as "[t]o meddle so as to alter (a thing); esp., to make changes that are illegal, corrupting, or perverting"). However, in reading the totality of the statute, it is clear that, as found by the supreme court in Walker I, "falsifies" cannot be so narrowly defined.
While the common and ordinary meaning of falsifies embraces the alteration or changing of a document, as advocated by Walker, it also embraces the written rending of false information. See Walker, 574 N.W.2d at 289 (listing definitions from standard and legal dictionaries). Moreover, the heading of a section cannot limit the plain meaning of the text. Searls v. Iowa Dep't of Transp., 405 N.W.2d 808, 810 (Iowa 1987). Even though the heading of section 715A.5 is "Tampering with records," the section clearly criminalizes conduct beyond mere alteration. Provided the defendant possesses the necessary intent, section 715A.5 criminalizes not only the falsification of documents, but their destruction, removal, or concealment.
Given all the foregoing, the interpretations of "under oath" and "falsifies" as used by the district court, and stated by the supreme court in Walker I, were clearly not "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." Bouie, 378 U.S. at 354, 84 S. Ct. at 1702, 12 L. Ed. 2d at 900 (citation and internal quotation marks omitted). The claims were without merit, and appellate counsel was not ineffective for failing to raise a meritless claim. See State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999).
C. Jury Instruction.
Walker's final argument relates to Jury Instruction No. 13, which outlined the elements of perjury as follows:
1. On or about September 13 or 14, 1995, the Defendant was under oath, as explained further in Instruction No. 14.
2. At that time the Defendant signed a return of service for a subpoena issued to Chance Bearden, as explained further in Instruction No. 15.
3. In signing the return of service, the Defendant made a statement of material fact, as explained further in Instruction No. 16.
4. The Defendant's statement of material fact was false when made.
5. The Defendant knew that the statement was then false.
Walker asserts this instruction allowed the jury to reach a less than unanimous verdict, in that some of the jurors could have found him guilty of committing the complained of acts on September 13, while others could have found him guilty of the committing those acts on September 14. He contends that if appellate counsel has raised a challenge to this instruction on direct appeal, the supreme court would have found prejudicial error, and reversed his convictions. As with the ex post facto arguments, above, there is no merit to this contention.
First, we do not believe the instruction was erroneous. The date upon which Walker made the false statement of material fact is not itself a material element of the offense. See Iowa Code § 720.2 (1995). In such a circumstance, the State is not required to prove any specific date upon which the offense occurred. See State v. Griffin, 386 N.W.2d 529, 532 (Iowa App.Ct. 1986). Moreover, the instruction makes it clear that Walker was guilty of perjury only if the jurors found he had performed one discrete act, that of signing the subpoena.
Second, even if there was error in the instruction, we find any such error harmless beyond a reasonable doubt. See State v. Engle, 590 N.W.2d 549, 551 (Iowa Ct.App. 1998) (noting erroneous jury instruction is presumed prejudicial unless, from review of whole case, the contrary appears beyond a reasonable doubt). As previously noted, the instruction limited the alleged offense to the act of the signing the proof of service on the subpoena, and all the evidence at trial indicated the subpoena was signed on September 13.
Because there is no merit to this claim, appellate counsel was not ineffective for failing to raise it on direct appeal. See State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999).
IV. Conclusion.
Appellate counsel was not ineffective for failing to raise either the ex post facto claims or the claim premised on Jury Instruction No. 13. Accordingly, we affirm the district court's dismissal of Walker's postconviction application.