Appeal from the Iowa District Court for Pottawattamie County, Charles Fagan, District Associate Judge.
Defendant was convicted by a jury of operating while intoxicated (OWI) and he appeals.
Drew H. Kouris, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Elisabeth Reynoldson, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Shelly Sedlak, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Danilson and Tabor, JJ.
Michael J. Wurtz was convicted by a jury of operating while intoxicated (OWI) in violation of Iowa Code section 321J.2 (2011), and he appeals. On appeal, he maintains that he received ineffective assistance of counsel at trial. He asks that we reverse his conviction and grant him a new trial. Because Wurtz was not prejudiced by any alleged errors of counsel, we affirm.
I. Background Facts and Proceedings.
At about midnight, on January 28, 2012, Wurtz met his girlfriend at a local bar after completing a fourteen-hour shift as a truck driver. At the bar, they shared a couple of pitchers of beer before leaving the establishment about 2:00 a.m. Wurtz then drove to a friend's house. While there, Wurtz and his friend split a quart jar of hard liquor containing peppermint sticks and pineapple. Between 3:00 a.m. and 3:30 a.m., Wurtz got into his car and drove towards home.
Just before 7:00 a.m., the dispatch center received a 911 call claiming that a car was parked in an intersection with the driver slumped over the wheel. Firemen and medical responders were the first to arrive on the scene and found Wurtz's vehicle as it had been described. At trial, Fireman McKeon testfied that Wurtz's vehicle was running when they arrived. He further testified that the car was in drive with the keys in the ignition when they opened the car door to check on Wurtz. When asked if he had any medical issues or needed help, Wurtz stated he wanted to move his car. Both Fireman McKeon and the State's rebuttal witness, Fireman Hoevet, testified that Wurtz then drove his car forward one to two car lengths. The medical responders removed Wurtz from his vehicle and had him sit in the back of the ambulance until the police officers arrived.
Wurtz contradicted the firemen's testimony. He testified that the car was not running, was not in drive, and that he did not move the vehicle at any time after pulling over to sleep. He also contested that he was ever asked to sit in the ambulance and instead maintained that he stayed in his vehicle until the police officers arrived on scene.
After the police officers arrived to the scene, Officer Archibald administered a horizontal gaze nystagamus test. The results indicated that Wurtz was under the influence. Officer Archibald also observed that Wurtz's eyes were red, bloodshot, and watery. After administering a preliminary breath test (PBT), he arrested Wurtz and transferred him to the station. At the station, Wurtz submitted to a breath test. The results showed that his blood alcohol content was .124.
Wurtz was charged with operating while intoxicated and his jury trial took place in June 2012. After deliberation, the jury returned a guilty verdict.
At sentencing, in September 2012, Wurtz filed a motion in arrest of judgment and a motion for a new trial. In support of the motions, counsel cited issues with a transcript that had been ordered from the Department of Transportation hearing, which did not arrive before trial; Wurtz believed the transcript would have allowed him to impeach Officer Archibald's testimony. Counsel also cited a belief that the trial was not held within ninety days, even though Wurtz did not waive his right to a speedy trial, and further cited her own failure to enter a hearsay objection to a document entered into evidence by the State. The court overruled both motions. Wurtz was then sentenced to ninety ...