Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.
Applicant seeks postconviction relief from his conviction for possession of a simulated controlled substance with intent to deliver.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John Sarcone, County Attorney, and Steve Bayens, Assistant County Attorney, for appellee.
Considered by Doyle, P.J., Danilson, J., and Miller, S.J. [*]
I. Background Facts and Proceedings
On September 26, 2007, three police officers were travelling in an unmarked vehicle in Des Moines, Iowa, when Yancey Russell flagged them down near the corner of 21st Street and University Avenue. Russell attempted to sell them a rosary, and one of the officers stated, "We're looking for something a little harder than that." Russell offered to sell them two rocks of crack cocaine. He briefly showed them a baggie containing a brown substance. A later search of Russell, however, revealed only a small bag of peanuts.
Russell was charged with possession of a simulated controlled substance with intent to deliver, in violation of Iowa Code section 124.401(1)(c)(3) (2007), and delivery of a simulated controlled substance, in violation of section 124.401(1)(c)(3). Trial was initially set for January 16, 2008. On December 31, 2007, Russell filed pro se motions to dismiss his court-appointed attorney and for the discovery of evidence. After a hearing, the court granted the motion to dismiss counsel. New court-appointed counsel was appointed on January 8, 2008.
On the day set for trial, the parties discussed whether "the two counts" would merge. Defense counsel argued that they would merge, but stated, "I haven't had time to research it as thoroughly as I would like." No resolution of the merger issue was made at that time. The trial was continued to February 20, 2008.
On February 12, 2008, Russell filed a notice of intent to take depositions. The State resisted on the ground that the notice was untimely under Iowa Rule of Criminal Procedure 2.13(6) because it was filed more than thirty days after arraignment. After a hearing, the district court denied Russell's late request to take depositions, finding he had not shown good cause for extending the time for depositions.
The case proceeded to a jury trial. A jury found him guilty of possession of a simulated controlled substance with intent to deliver and delivery of a simulated controlled substance.
At the sentencing hearing, defense counsel and the prosecutor agreed that the "sentences" for the two charges would merge. The district court sentenced Russell to a term of imprisonment not to exceed ten years on each charge, and ordered that the sentences merge. Russell appealed, claiming that not only the sentences, but also the convictions should merge. The Iowa Court of Appeals agreed, and the case was remanded to the district court. State v. Russell, No. 08-0497, 2009 WL 1067324 (Iowa Ct. App. Apr. 22, 2009). On remand, Russell's two convictions were merged into one conviction for the greater offense. He was sentenced to a term of imprisonment not to exceed ten years.
On August 28, 2009, Russell filed an application for postconviction relief, claiming he received ineffective assistance from both his first and second defense counsels. Russell claimed his first defense counsel should have deposed the police officers. He claimed his ...