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Wilkerson v. State

Court of Appeals of Iowa
Oct 12, 2005
707 N.W.2d 336 (Iowa Ct. App. 2005)

Opinion

No. 5-663 / 04-1862

Filed October 12, 2005

Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.

Maury Wilkerson appeals the district court's ruling on his application for postconviction relief. AFFIRMED.

Linda Murphy, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant Attorney General, John Sarcone, County Attorney, and Stephanie L. Cox, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., and Mahan and Miller, JJ.


Maury Wilkerson appeals the district court's ruling on his application for postconviction relief. He argues that his probation was improperly revoked because (1) his probation revocation hearing counsel was ineffective and (2) the district court erred when it required him to prove by the preponderance of the evidence that he was prejudiced by his ineffective counsel. We affirm.

I. Background Facts and Proceedings

Wilkerson entered an Alford plea to one count of delivery of a controlled substance and two counts of delivery of a simulated controlled substance in violation of Iowa Code section 124.401(1)(b)(5) (2001) on July 30, 2001. He was sentenced to a maximum of twenty-five years on each count, to be served consecutively. His sentence was suspended and he was placed on probation.

While on probation, Wilkerson allegedly violated his probation at least fourteen times. Between October 30, 2001, and October 30, 2002, he was arrested on four different occasions: on October 30, 2001, for public intoxication; on May 20, 2002, for interference and driving with a license under suspension; on October 26, 2002, for domestic abuse assault without intent; and on October 27, 2002, for violation of a no-contact order, domestic assault with intent, and second-degree burglary. At various times throughout that year he also allegedly used alcohol and tested positive for cocaine; left Polk County; failed to pay court monies; failed to abide by his supervision fee payment plan; failed to perform his community service hours; refused to submit to a urinalysis; and lied to his probation officer about his drug and alcohol use and performance of his community service hours.

We note these two offenses allegedly occurred within a forty-eight-hour period. The second allegedly took place after Wilkerson was processed out on the first offense.

As a result of the arrests on October 26 and 27, 2002, proceedings for probation revocation were commenced. E. Frank Rivera, whose representation Wilkerson claims was ineffective, represented him during his probation revocation hearing. The hearing was initially set for November 6, 2002. Rivera obtained a continuance until November 19, 2002, after learning that Wilkerson's brother would not be taking responsibility for the charges as Wilkerson had originally told Rivera.

At the hearing, Rivera initially asked the court to determine whether Wilkerson was competent. Wilkerson then admitted to all of his probation violations except for his community service violations. In addition, he exercised his presumption of innocence on the assault and burglary charges. The state then called a witness who testified about Wilkerson's burglary charge and a police officer who testified about the assault and burglary charges. Rivera cross-examined the first witness and objected during the police officer's testimony. The State then called Wilkerson's probation officer. She recommended that Wilkerson's original sentence be served. When asked about the basis of her opinion, she testified:

It's based on given the violations that he has, I don't think Fort Des Moines would be sufficient and the violator program would not accept him with pending charges or probably accept him with recent domestics, if those should become convictions.

When asked about sending Wilkerson to another treatment program, she testified:

When we're looking at his opportunity to complete several programs already and the fact that he has not been truthful about his use, our resources are very limited and I, frankly, do not believe he deserves a shot at another treatment.

Rivera then cross-examined Wilkerson's probation officer. She admitted Wilkerson had a good employment record and that he completed drug treatment programs.

Q. And then is it your opinion that because your resources are scarce that Mr. Wilkerson should be confined for a period up to 75 years, who has a known drug and alcohol problem? A. When we look at the overall degree of noncompliance, Mr. Rivera, what I see is someone who has not been truthful to his probation officer and, therefore, makes it very difficult to work with him. And there are several areas in which he has been noncompliant other than the work and showing the verification of that and coming to his appointments. There is pretty much everything else. He did follow through with the treatment, but he has continued to use and I think very likely been untruthful about that.

In his summation, Rivera argued that neither the witness nor the police officer identified Wilkerson as the person who committed the assault. He pointed out that Wilkerson had not been proven guilty of the charges. He argued that Wilkerson's other violations did not warrant revocation of his probation. Rivera asked the court to consider a violator's program or impose a lesser sentence. He also introduced three letters, two from Wilkerson's employers and one from his sister, testifying to Wilkerson's good character and his need for drug treatment. At the end of the hearing, the court found that Wilkerson had been given sufficient opportunity for community-based corrections. His probation was revoked.

Wilkerson filed for postconviction relief alleging ineffective assistance of counsel. The district court assumed, without deciding, that Rivera had rendered ineffective assistance. However, it found there was not a reasonable probability that the outcome of the hearing would have been different. Wilkerson appeals that ruling.

II. Standard of Review

We review postconviction relief proceedings for error at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). We review constitutional violations de novo. Id. Therefore, we review Wilkerson's claim that the district court applied an incorrect legal standard for legal error. State v. Robinson, 506 N.W.2d 769, 770 (Iowa 1993). We review his ineffective assistance of counsel claim de novo. Id.

The burden is on Wilkerson to prove by a preponderance of the evidence that his counsel was ineffective. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994); State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct.App. 1996). He must show (1) his counsel's performance was deficient and (2) that deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The test for the first element is objective: whether counsel's performance was outside the range of normal competency. Kone, 557 N.W.2d at 102. We start with a strong presumption that counsel's conduct was within the "wide range of reasonable professional assistance." Strickland, 466 U.S. at 687, 104 S. Ct. at 2052, 80 L. Ed. 2d at 694. The test for the second element is whether there is a reasonable probability that, without counsel's errors, the outcome of the proceedings would have been different. Id. at 694, 104 S. Ct. at 2052, 80 L. Ed. 2d at 698. A reasonable probability is one that undermines confidence in the outcome. Id.; Kone, 557 N.W.2d at 102. We only presume prejudice if counsel completely fails to subject the prosecution's case to meaningful adversarial testing. United States v. White, 341 F.3d 673, 678 (8th Cir. 2003). We may resolve the case on either prong of the test. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699.

The right to effective assistance of counsel in Iowa applies to appeals and postconviction actions, as well as trial. Schertz v. State, 380 N.W.2d 404, 412 (Iowa 1985).In reviewing Wilkerson's case, we are to consider the totality of the evidence. Strickland, 466 U.S. at 695, 104 S.Ct. at 2069, 80 L. Ed. 2d at 698. We need not address both elements if one is sufficient to dispose of the claim. Id. at 697, 104 S.Ct. at 2069, 80 L. Ed. 2d at 699. Ultimately, our focus is to be on the "fundamental fairness" of the proceeding. Id. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699. We are concerned with whether there has been a breakdown in the adversarial process that would make the result of the proceeding unreliable. Id.

III. Merits

First, Wilkerson argues that the district court applied an incorrect legal standard to his ineffective assistance claim. Wilkerson claims that the district court required him to prove by a preponderance of the evidence, rather than by a reasonable probability, that he was prejudiced by his counsel's ineffective performance. The State, in turn, argues that Wilkerson's claim of legal error was not preserved below. It claims that Wilkerson should have filed a motion to enlarge the findings of the trial court pursuant to Iowa Rule of Civil Procedure 1.904 (2001).

Wilkerson could have presented this issue in a rule 1.904 motion. His failure to file such a motion, however, does not preclude either his attack on the sufficiency of the evidence or his reliance on other legal error. See State v. Miles, 346 N.W.2d 517, 519 (Iowa 1984). We therefore conclude the issue was sufficiently preserved.

Wilkerson, however, fails to put forth any evidence to show the district court applied the wrong standard. He argues only that there are no means by which the district court could have come to its conclusion other than by applying the wrong standard. We find this argument unpersuasive. The district court repeated the correct standard three times. Because we find no evidence to support Wilkerson's claim, we conclude that the district court did not use an incorrect legal standard.

Second, Wilkerson argues that his counsel was ineffective because he (1) failed to investigate and present evidence in defense of the most recent charges against Wilkerson, (2) failed to request a continuance until the underlying charges were resolved, and (3) failed to investigate and present evidence in support of a lesser sentence. Specifically, Wilkerson claims that Rivera should have obtained the police reports from his October 26 and 27 charges, challenged the State's witness's competency, and presented mitigating evidence on behalf of Wilkerson.

Our deference to counsel's performance is quite high. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Even if we were to decide that Rivera's performance was deficient, we would be unable to find that Wilkerson's defense was prejudiced by it. Rivera effectively cross-examined all of the state's witnesses, bringing out whatever evidence might have been favorable to his client. Rivera's argument to the court both pointed out the deficiencies in the state's case and offered alternatives to revoking Wilkerson's probation. Wilkerson puts forth no evidence that could have been discovered that would have proven to be exculpatory. As a result, we cannot find any breakdown of the adversarial process.

Wilkerson argues that it was the most recent charges that heavily weighed both his probation officer's recommendation and the district court's decision to revoke his probation. We think the charges were more like a grain of sand that tipped the scale. Wilkerson's probation officer pointed out that with the violent charges, let alone convictions, against him, it was unlikely that another offender program would take Wilkerson. Further, as the district court pointed out, even if the judge had waited until those charges were either dismissed or resolved, he would not be bound by that result. The standard for proving the charges in a probation revocation hearing is only by a preponderance of the evidence.

In addition to those charges from October, as Wilkerson's probation officer said, "[t]here is pretty much everything else." Wilkerson had two other arrests and convictions. He violated his probation numerous times by using drugs and alcohol, even after attending treatment programs. He proved himself untrustworthy by continually lying to his probation officer. As a result, we find there is no reasonable probability that the outcome of Wilkerson's hearing would have been any different. Therefore, Wilkerson has failed to show any prejudice.

AFFIRMED.


Summaries of

Wilkerson v. State

Court of Appeals of Iowa
Oct 12, 2005
707 N.W.2d 336 (Iowa Ct. App. 2005)
Case details for

Wilkerson v. State

Case Details

Full title:MAURY WILKERSON, Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee

Court:Court of Appeals of Iowa

Date published: Oct 12, 2005

Citations

707 N.W.2d 336 (Iowa Ct. App. 2005)