Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
The opinion of the court was delivered by: Doyle, P.J.
Cecil Watson seeks post-conviction relief from his convictions for conspiracy to distribute crack cocaine, possession with intent to deliver crack cocaine, and failure to possess a tax stamp. AFFIRMED.
Considered by Doyle, P.J., and Mullins and Bower, JJ.
Cecil Watson seeks post-conviction relief (PCR) from his convictions for conspiracy to distribute crack cocaine, possession with intent to deliver crack cocaine, and failure to possess a tax stamp. We affirm.
I. Background Facts and Proceedings.
This court has already established the facts relevant to this case in its opinion regarding the appeal of Watson's alleged co-conspirator, Larry Perry:
On August 30, 2007, police officers obtained a warrant to search Cecil Watson's residence and person. Watson was not at home when officers arrived to search his residence. Later that day, officers received a tip that Watson would be driving to CiCi's Pizza and waited for him in unmarked vehicles. When Watson pulled into the parking lot, officers blocked in the vehicle driven by Watson and converged on the vehicle to execute the warrant.*fn1 Several officers removed Watson from the car, handcuffed him, and searched him.
Officers also approached the passenger side of the car where Larry Perry was seated. When an officer ordered Perry to show his hands, Perry raised his right hand but refused to show his left hand. Lieutenant Eric Nation testified that he saw Perry throw a baggie containing a white substance onto the empty driver's seat vacated by Watson. This baggie was later found to contain a 29.18 gram rock of crack cocaine. After officers removed Perry from the vehicle, they found another baggie containing 1.69 grams of crack cocaine on the left side of the passenger seat, near the area Perry's hand was located when he refused to show it. Officers found a third baggie containing 5.66 grams of crack cocaine inside a brown paper sack on the driver's seat. Officers found no money, drug paraphernalia, or other indicia of drug involvement on Perry's person. The amount of cocaine found in the vehicle was consistent with drug dealing, as it was an amount greater than would be held for personal use. No tax stamps were affixed to the crack cocaine.
While officers searched the vehicle, they left Perry and Watson alone in the back seat of a patrol car with a video camera that, unbeknownst to them, was recording their conversation. Perry and Watson discussed the story they would tell police and tried to identify the person who had notified the police of their location. The recording primarily consists of Perry talking and Watson mumbling in agreement.
The State charged both Perry and Watson with conspiracy to deliver crack cocaine in excess of ten grams in violation of Iowa Code section 124.401(1)(b)(3) (2005); possession of crack cocaine with intent to deliver in violation of Iowa Code section 124.401(1)(b)(3); and failure to possess a tax stamp in violation of Iowa Code sections 453B.3 and 453B.12.
State v. Perry, No. 08-0488, 2009 WL 139536, at *1 (Iowa Ct. App. Jan. 22, 2009).
After a joint trial to a jury, Watson and Perry were convicted as charged. In sentencing Watson, the district court imposed twenty-five-year sentences on the conspiracy and possession convictions, merged the sentences, and imposed a concurrent five-year sentence on the failure to possess tax stamp conviction. On direct appeal, this court vacated Watson's conviction for conspiracy, affirmed his possession and tax stamp convictions, and preserved for PCR his ineffective-assistance-of-counsel claims. State v. Watson, No. 08-0339, 2009 WL 1492690, at *4 (Iowa Ct. App. May 29, 2009).
Watson filed an application for PCR, claiming he received ineffective assistance of counsel in numerous respects. The district court dismissed Watson's application, finding no ineffective assistance on the part of Watson's counsel in regard to failed efforts to exclude the videotape, failure to move to suppress evidence obtained in the search, and failure to request a "proper" instruction on constructive possession. The court also concluded Watson's pro se claims were without merit.
II. Scope and Standards of Review.
We review claims of ineffective assistance of counsel de novo. Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective assistance of counsel, an applicant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied applicant a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2008). "In determining whether an attorney failed in performance of an essential duty, we avoid second-guessing reasonable trial strategy." Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). We presume counsel is competent, and miscalculated trial strategies and mere mistakes in judgment normally do not rise to the level of ineffective assistance. Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008). In order to show prejudice, an applicant must show that, but for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Madsen, 813 N.W.2d 714, 727 (Iowa 2012).