Opinion
No. 4-271 / 03-1608
July 14, 2004
Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge.
Applicant appeals from the district court's dismissal of his application for postconviction relief. AFFIRMED.
Paul Rosenberg of Paul Rosenberg Associates, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, John Sarcone, County Attorney, and Joseph Weeg, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Robert Rounds appeals from the district court's dismissal of his application for postconviction relief. We affirm.
I. Background Facts and Proceedings.
In September of 1995 a jury found Robert Rounds guilty of sexual abuse in the second degree and sexual abuse in the third degree for molesting his daughter. His convictions were upheld by this court on direct appeal. State v. Rounds, No. 95-1944 (Iowa Ct. App. Dec. 5, 1997), further review denied, March 6, 1998.
Rounds filed a pro se application for postconviction relief in March 2001. Rounds's postconviction counsel filed an amended and recast petition on May 5, 2003. In its final form the application for postconviction relief forwarded eight claims of ineffective assistance, by both trial and appellate counsel. Following a hearing, at which Rounds testified and presented evidence, the district court dismissed Rounds's application. The postconviction court concluded Rounds had not established any of his claims. In particular the court concluded Rounds could not assert claims for ineffective assistance, as he had represented himself during the criminal proceedings. Rounds appeals.
II. Scope of Review.
We review this matter de novo. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
III. Discussion.
To establish ineffectiveness assistance of either trial or appellate counsel, Rounds 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). For claims premised on ineffective assistance of trial counsel, he must further show a "sufficient reason" for his failure to raise the claims on direct appeal. Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998). However, Rounds may not now assert a claim adequately raised, and decided adversely to him, on direct appeal. See Iowa Code § 822.8 (2001). A. Ineffective Assistance of Trial Counsel.
The State concedes it did not raise a waiver argument below. We recognize the State cannot rely on the raise-all-grounds requirement of section 822.8 for the first time on appeal when a waiver argument was not advanced in the postconviction relief proceedings. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002). However, we do not believe DeVoss precludes this court from determining that a procedural bar exists to the review of a claim previously adjudicated and decided.
Of the eight ineffective assistance of counsel claims listed by Rounds, five allege ineffective assistance by trial counsel. However, on direct appeal we determined Rounds was precluded from asserting claims of ineffective assistance of trial counsel, as he "chose to proceed pro se." Rounds, No. 95-1944. We relied on the case of State v. Hutchison, 341 N.W.2d 33, 42 (Iowa 1983), which provides that a defendant "cannot knowingly and intelligently make an election to proceed pro se and then, having lost his trial on the merits, seek a reversal on appeal by claiming ineffective assistance of counsel."
Rounds asserts the ineffective assistance of counsel claims he now makes should not be barred under Hutchison. He contends the record demonstrates that his "advisory counsel" in fact engaged in active representation during trial. This argument ignores the fact that we have already concluded Rounds did proceed pro se. This matter has been litigated and decided adversely to Rounds. "`[T]he principle of Res Judicata bars additional litigation on this point.'" State v. Wetzel, 192 N.W.2d 762, 764 (Iowa 1971) (citation omitted). In addition, Rounds does not assert, much less demonstrate, a sufficient reason why his five claims of ineffective assistance of trial counsel were not raised in his direct appeal. See Osborn, 573 N.W.2d at 921. Even if we were to assume that a sufficient reason could be found in the ineffective assistance of appellate counsel, Rounds neither asserts nor demonstrates how any of the alleged errors by counsel prejudiced the outcome of his trial. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (requiring a defendant to identify how competent representation probably would have changed the outcome).
All of these reasons provide an adequate basis on which to affirm the district court's dismissal of Rounds's claims of ineffective assistance of trial counsel. However, we have also reviewed the record, and conclude that Rounds has failed to establish a factual basis for his claims of ineffective assistance of trial counsel.
Three of the five claims advanced by Rounds address alleged failures by counsel to challenge the charges in the trial information. The fourth asserts that counsel provided faulty advice regarding a plea offer. However, the evidence clearly establishes, with a limited exception that has no demonstrable application to these claims, that Rounds asserted his right to self-representation from at least the March 31, 1995 filing of the trial information to the start of his September 1995 trial. Since Rounds chose to represent himself in these pre-trial matters, he cannot now claim that counsel was ineffective for failing to raise certain pre-trial challenges, or give proper advice. See Hutchison, 341 N.W.2d at 42.
Rounds has articulated these claims as follows:
[1.] Trial counsel was ineffective in failing to challenge Count I of the trial information which erroneously charged sexual abuse under the 1993 Iowa Code for pre-1989 conduct not covered by the 1993 sexual abuse definition. A "sex act" involving manual contact with the genitalia was criminalized only in 1989;
[2.] Trial counsel was ineffective for failing to allege an ex post facto violation by the State use of a post-1989 law to criminalize pre-1989 conduct as alleged in Count I;
[3.] Trial counsel was ineffective in failing to allege a due process violation by the State allegation in Count I of a statutory offense covering a lengthy time period during which multiple definitions of sex act were in effect;
[4.] Trial counsel was ineffective in giving faulty advice as to the advisability of accepting a plea offer of 5 years in prison. Counsel grossly overstated the chance of success at a jury trial stating the odds of winning were 50%; . . .
Rounds confirmed that, by the time the trial information was filed, he had elected to proceed pro se; his attorney, Cynthia Moisan, was serving as advisory counsel only. Rounds's pro se status, and attorney Moisan's advisory role, were confirmed in May 1995 court orders. In late May 1995 attorney Moisan withdrew, and attorney Thomas McCann entered an appearance in this matter. However, attorney McCann appeared as Rounds's attorney of record solely for the purpose of taking two depositions. The appearance stated that it had yet to be determined whether attorney McCann would thereafter continue as attorney of record, or as advisory counsel. Approximately two weeks later, in mid-June 1995, Rounds reasserted his right to self-representation, and stated that attorney McCann was retained only as advisory counsel. Subsequent filings and transcripts from court hearings confirm that, but for that limited period, Rounds continued to assert his right to self-representation until the morning of his trial.
Rounds's last claim of ineffective assistance by trial counsel alleges a failure to present certain evidence at his trial. Rounds asserts the record demonstrates that his advisory counsel, Thomas McCann, in fact actively represented him, as an attorney of record, during the course of the trial. A review of the record does reveal that attorney McCann conducted voir dire and questioned witnesses. Rounds asserts that this demonstrates he in fact ceased pro se representation, as he no longer "controlled" the litigation. See State v. Martin, 608 N.W.2d 445, 451 (Iowa 2000) (indicating limitations on advisory counsel, and when actions by counsel, appointed over a defendant's objections, interfere with self-representation).
Rounds contends, "Trial counsel was ineffective in failing to present evidence that no acts of sexual abuse occurred during the only period covered by count I for which the post-1989 definition of "sex act applied."
The record reveals that, on the morning of his criminal trial, Rounds announced for the first time his wish to be represented by attorney McCann in some particulars, while still reserving a right of pro se representation. Rounds indicated that he wished to have attorney McCann to conduct voir dire and question witnesses, but reserved to himself the right to "assist" in the striking of jurors, conduct additional questioning of witnesses, and give a closing statement. It is clear attorney McCann took an active role in the defense, but did so at Rounds's request and only on the very eve of trial. The mere fact of attorney McCann's participation does not establish that Rounds relinquished control of his defense. See id. ("A defendant's invitation to counsel to participate in the trial obliterates any claim that the participation in question deprived the defendant of control over his own defense."). In fact, Rounds testified at the postconviction hearing that, without regard to attorney McCann's participation, "[f]rom June 15th, . . . until time of trial; in fact, throughout trial, I would say that I was pro se." B. Ineffective Assistance of Appellate Counsel.
It is conceivable that Rounds's ineffective assistance claims based on the failure to challenge the trial information are aimed at not only pre-trial proceedings, but also trial. To the extent this is Rounds's contention, it is equally without merit.
The postconviction court's ruling suggests that Rounds also represented himself on direct appeal, and the court dismissed Rounds's claim of ineffective assistance of appellate counsel in part on that basis. We agree with Rounds that the record demonstrates, and our decision on direct appeal indicates, that he was in fact represented by counsel in his prior appeal. Thus, Hutchison cannot serve as a bar to Rounds's three claims of ineffective assistance by appellate counsel. We nevertheless conclude that all three claims are without merit.
Two of the claims focus on incriminating statements Rounds made to a Department of Human Services investigator, apparently in March 1993. The admissibility of these statements was addressed on direct appeal, with this court concluding that Rounds had waived his right to counsel by initiating the conversation with the investigator. Rounds asserts appellate counsel was ineffective because he failed to argue there was no evidence "Rounds was advised or knew he had a right to counsel." However, on direct appeal counsel stated, "Mr. Rounds was never informed of his right to have counsel present." We believe this statement adequately addresses the claim now made.
In addition, Rounds asserts that on further review appellate counsel should have urged this court erred in concluding Rounds was acting pro se, because he was in fact represented by counsel at the time he made the incriminating statements. To the extent this claim is meant to address alleged ineffectiveness of trial counsel in not raising the issue in a pre-trial motion, it suffers the same fate as Rounds's other allegations of ineffective assistance of trial counsel. To the extent the claim is meant to address the merits of our ruling on direct appeal regarding the admissibility of the statements, Rounds does not suggest, much less demonstrate, how representation at the time of the statement would somehow alter our conclusion that he waived his right to counsel. He has therefore failed to demonstrate prejudice. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also Dunbar, 515 N.W.2d at 15 (requiring specificity of allegation).
Rounds's third and final claim focuses on the issue, raised at trial and on direct appeal, of whether Iowa in fact had jurisdiction over the crimes allegedly committed by Rounds. Rounds asserted the trial information charged him with acts of alleged sexual abuse that occurred prior to the time he and the victim lived in Iowa. The trial court allowed the State to amend the trial information to conform to the proof, and modified the jury instructions accordingly. On direct appeal we concluded the actions taken by the district court adequately cured any jurisdictional problems. Rounds, No. 95-1944.
Rounds now asserts appellate counsel should have argued the district erred in allowing the amendment, and precluding him from mounting a defense of lack of jurisdiction, as this "was in fact an acquittal for insufficient evidence." We have already concluded that the district court properly addressed the question of territorial jurisdiction. Nothing in Rounds's brief suggests, much less establishes, how such an argument would have altered our decision. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Dunbar, 515 N.W.2d at 15. The district court did not err in dismissing Rounds's claims of ineffective assistance of appellate counsel.
We affirm the district court's dismissal of Rounds's postconviction relief application.