Appeal from the Iowa District Court for Plymouth County, Robert J. Dull, District Associate Judge, (motion to suppress) and Jeffrey A. Neary, Judge (trial).
The opinion of the court was delivered by: Eisenhauer, C.J.
Corey Ruden appeals from his conviction of possession of marijuana, third offense. AFFIRMED.
Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.
Corey Ruden appeals from his conviction of possession of marijuana, third offense, contending his attorney was ineffective in not challenging the voluntariness of his confession. We affirm.
In April 2010 Deputy U.S. Marshall McCormick and Sergeant Te Brink of the Plymouth County Sheriff's office conducted a sex offender compliance check at Ruden's registered residence. When Ruden opened the door, McCormick smelled a strong odor of burnt marijuana. When Te Brink came closer to the door, he also smelled the strong odor. The officers questioned Ruden about the odor. He denied anyone had been smoking marijuana and said the odor was from his cleaning a tortoise tank and cleaning mold in the house. Te Brink asked Ruden if they could enter. As Ruden stepped aside, the officers entered. Upon entering officers saw a man and woman in a room to the left of the entrance. Te Brink went into the room and asked them if they had been smoking marijuana; they denied it. Te Brink saw an ashtray containing ashes and a small amount of a green leafy substance in the side room. Ruden denied the ashtray contained marijuana, claiming the ashes were from cigarettes.
Sergeant Te Brink asked Ruden for permission to search the residence. The two went into the kitchen while McCormick stayed with the man and woman in the other room. Ruden asked if he could call an attorney to come during the search. Te Brink replied Ruden was free to call an attorney, but the attorney could not be present during a search. Ruden asked about a warrant for the search. Te Brink responded, "[W]e can do this the easy way or the hard way," and if Ruden did not consent, the officers would obtain a search warrant. Ruden indicated to Te Brink he wanted to talk with him privately, and they went to the back staircase of the residence. Ruden told Te Brink he had just started a new landscaping business, he wanted to turn his life around and go straight, he did not want any trouble, and he had some marijuana in a tin under the couch in the other room. Ruden and Te Brink then returned to the other room, and with Ruden's help, Te Brink retrieved a tin containing marijuana from under the couch.
Te Brink took Ruden outside to the front porch, read him his Miranda rights, and obtained Ruden's signature on a written consent to search.
After he was charged with possession of marijuana, third offense, Ruden filed a motion to suppress, alleging the officers did not have consent to enter the residence, they had no reasonable grounds to enter without consent or to search the residence, the search was illegal, and all evidence and statements obtained by the officers should be suppressed. Following a hearing, the court denied the motion, concluding Ruden's consent to search was voluntary, Ruden initiated the private conversation with Te Brink in which he told Te Brink about the marijuana, Ruden helped Te Brink retrieve the marijuana, and the odor of burnt marijuana and the ashes and residue in the ashtray would have supported issuance of a search warrant had one been sought. Ruden's motion to reconsider was denied. The judge who considered and ruled on the motion to suppress then recused himself from further participation in this case.
To preserve the suppression issue for appeal, Ruden consented to a trial to the court, during which he re-urged the motion to suppress. The court found Ruden guilty of possession of marijuana, third offense. Concerning the motion to suppress, the court concluded:
The Court here has been urged to review and in essence overrule the ruling on the Motion to Suppress made by Judge Dull. This would constitute in essence an appeal of Judge Dull's ruling over which this Court does not have jurisdiction in this setting. Therefore the Court does not overturn Judge Dull's ruling on the Motion to Suppress.
Ruden appealed, contending his attorney was ineffective in not challenging the voluntariness of his confession in the motion to suppress.
Our review of ineffective assistance of counsel claims is de novo. State v. Madsen, 813 N.W.2d 714, 721 (Iowa 2012). We give deference to the trial court's findings of fact because of its ability to assess the credibility of witnesses, but we are not bound by them. State v. Crawford, 659 N.W.2d 537, 541 (Iowa 2003). To prove ineffective assistance, a defendant must demonstrate his trial counsel failed to perform an essential duty, resulting in prejudice. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). A defendant's inability to prove either element is fatal; thus, we may resolve a claim on either prong. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003).
"Ineffective-assistance claims are an exception to our normal rules of error preservation." State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). Such claims are normally considered in post-conviction relief proceedings. Id. Even though such claims need not be raised on direct appeal, a defendant may do so if he or she has "'reasonable grounds to believe that the record is adequate to address the claim.'" State v. Johnson, 784 N.W.2d 192, 197 (Iowa 2010) (citation omitted). If we determine the record is adequate, we resolve the claim. Id. We conclude the record here is adequate for us to resolve the claim.
Ruden argues his attorney should have challenged his confession as involuntary because "police threats to detain [him] and tear his house apart if they had to secure a search warrant before conducting a search led to ...