Opinion
No. 3-996 / 03-0277
Filed February 11, 2004
Appeal from the Iowa District Court for Black Hawk County, Thomas Bower, Judge.
Antwan Young appeals from the dismissal of his application for postconviction relief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Antwan Young appeals from the dismissal of his application for postconviction relief. He contends trial counsel was ineffective for allowing his guilty plea to go forward because he was not informed of the mandatory minimum punishment aspects of the eighty-five percent rule. He also argues his postconviction counsel was ineffective for failing to pursue the above issue. We affirm.
Background Facts and Proceedings.
On October 13, 2000, Young entered a plea of guilty to robbery in the second degree. During the plea, the court stated in part:
The charge of Robbery in the Second Degree is a Class C felony. The maximum punishment for that is ten years incarceration in prison and/or a $10,000 fine. There is a required $1,000 fine which the Court could suspend. Do you understand the maximum punishment that could be imposed?
The district court did not advise Young that robbery in the second degree was subject to the eighty-five percent rule pursuant to Iowa Code section 902.12 and 903A.2(1)(b) (1999). In addition, the following colloquy occurred:
THE COURT: Were you here in Black Hawk County back on August 9 of 1999?
DEFENDANT: Yes.
THE COURT: And did you go to that Taco John's that day?
DEFENDANT: Yes.
THE COURT: And did you attempt to gain money by threatening the employees, pretending as if you had a gun with you at the time to try to get money?
DEFENDANT: Yes.
Young also agreed that the court could accept the minutes of testimony. The district court found Young made a knowing, voluntary, and intelligent waiver of his constitutional rights and he established a factual basis for the plea. Young then requested immediate sentencing. The district court informed Young that by pleading guilty and requesting immediate sentencing he was giving up his right to attack the plea and the plea would "always stand" Young agreed to waive this right, and he was sentenced to a term of imprisonment not to exceed ten years. Young did not appeal his conviction.
On May 22, 2002, Young filed a pro se application for postconviction relief. Counsel was appointed by the court to represent Young. On May 25, 2002, the State filed a motion to dismiss. Following a hearing, the postconviction court dismissed Young's application. He appeals.
Standard of Review.
We ordinarily review postconviction relief proceedings on error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when the applicant asserts claims of a constitutional nature, our review is de novo. Id. Thus, we review claims of ineffective assistance of counsel de novo. Id. We also review ineffective assistance of appellate and postconviction counsel claims under a de novo standard of review as well. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). In addition, we give weight to the lower court's findings concerning witness credibility. Ledezma, 626 N.W.2d at 141.
Preservation of Young's Claims.
The State argues that Young's appeal from the denial of postconviction relief presents error preservation and procedural difficulties. "[A]ny claim not properly raised on direct appeal may not be litigated in a postconviction relief action unless sufficient reason or cause is shown for not previously raising the claim, and actual prejudice resulted from the claim of error." Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). To prove prejudice, the applicant must show that the alleged error actually and substantially disadvantaged him. Ledezma, 626 N.W.2d at 141.
Our supreme court has stated ineffective assistance of appellate counsel or postconviction counsel may furnish sufficient reason for failure to raise an issue on direct appeal. Osborn, 573 N.W.2d at 921; Collins v. State, 588 N.W.2d 399, 402-03 (Iowa 1998). We judge ineffective assistance of appellate and postconviction counsel claims against the same two-pronged test utilized for ineffective assistance of trial counsel claims. Osborn, 573 N.W.2d at 922; Collins, 588 N.W.2d at 401-02. We have determined Young's claims should be addressed on their merits to determine the issue of error preservation.
Young's Claims.
We first consider the claim against Young's trial counsel. If we find Young's claim to be without merit we need not address his ineffective assistance of postconviction counsel claim.
Young argues his trial counsel was ineffective for allowing his guilty plea to go forward because he was not informed of the mandatory minimum punishments aspects of the eighty-five percent rule. The standards necessary to resolve ineffective assistance of counsel claims are well established. To establish a claim of ineffective assistance of counsel, defendant has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct. App. 1999).
Iowa Rule of Criminal Procedure 8(2)( b)(2) requires a defendant be advised of any mandatory minimum punishment. Robbery in the second degree requires that a defendant serve eighty-five percent of a term before being eligible for parole. Iowa Code §§ 902.12, 903A.2(1)(b) (1999). This sentence is a mandatory minimum sentence and subject to rule 8(2)( b)(2). State v. District Court, 616 N.W.2d 575, 579 (Iowa 2000). It is clear from the record that Young was not advised of the mandatory minimum punishment and, thus, his plea does not comply with the rule. As a result, Young's counsel failed to perform an essential duty when he allowed Young to plead guilty to robbery in the second degree without being advised of the mandatory minimum punishment.
Once Young proves counsel breaches an essential duty, he must also show such error caused prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067, 80 L. Ed.2d at 697. In order to establish prejudice in the context of a guilty plea, Young must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985); Irving v. State, 533 N.W.2d 538, 541 (Iowa 1995). A relevant factor is whether it can be determined to a reasonable probability that a defendant would have been acquitted. Hill, 474 U.S. at 59, 106 S.Ct. at 370, 88 L. Ed.2d at 210.
Our review of the record leads us to the conclusion that the evidence against Young was overwhelming. Therefore, he fails in his attempt to show prejudice. Young entered a Taco John's restaurant in Waterloo and handed the employee behind the counter a note stating "To whom it may concern, I have a gun, I'll shoot you if you don't give me the money." Young then said "Do it now!" The employee opened the cash register, and Young reached over the counter and grabbed all the cash in the drawer.
A witness saw Young running down the alley behind Taco John's after the robbery. Young was also videotaped at the Taco John's wearing a black and white shirt. Young's girlfriend, Ramona Crawley, told police that he hid the clothes he wore during the robbery under her bed. Officers found a black and white shirt and windbreaker pants under Crawley's bed. Young's fingerprints were found on the note used in the robbery. In addition, Young confessed to police that he committed the robbery.
Accordingly, we find Young suffered no prejudice because it could not be determined to a reasonable probability that he would have been acquitted. Therefore, his claim of ineffective assistance of counsel must fail. As a result, postconviction counsel did not prejudice Young by not raising this claim in Young's postconviction relief application. Therefore, we find Young did not preserve error and his claim lacks merit.