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McCullough v. State

Court of Appeal of Iowa

October 23, 2013

CORTEZ MCCULLOUGH, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge.

The applicant appeals the district court decision denying his application for postconviction relief.

Susan R. Stockdale, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Jacob Marshall, Student Legal Intern, John Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.

Considered by Potterfield, P.J., Doyle, J., and Sackett, S.J. [*]

SACKETT, S.J.

After a night of drinking and using drugs, McCullough sped through downtown Des Moines and crashed his car into a parked vehicle. When two Per Mar security guards approached to offer help, McCullough pointed a gun at them and ran away. McCullough, with the gun tucked in the waistband of his pants, approached a truck waiting at a stop light. After opening the door, McCullough ordered the driver, Matthew Wignall, out of the truck. When Wignall reached for his radio instead of exiting immediately, McCullough grabbed Wignall's arm, pulled him out of the truck, and entered the vehicle. After McCullough was inside the truck, he pulled the gun out of his waistband and pointed it at Wignall. Wignall was afraid he was going to be shot or killed. McCullough drove away and was later apprehended by the police. State v. McCullough, No. 08-1028, 2009 WL 4842802, at *1 (Iowa Ct. App. Dec. 17, 2009).

Cortez McCullough was convicted of first-degree robbery for stealing a truck from its owner at gunpoint, two counts of intimidation with a weapon, possession of a controlled substance, and possession of a firearm as a convicted felon. His convictions were upheld on appeal. Id. McCullough filed an application for postconviction relief, claiming he received ineffective assistance from trial counsel when counsel failed to request an instruction on operating a motor vehicle without the owner's consent. The district court denied his application, and he appeals.

SCOPE OF REVIEW.

Claims of ineffective assistance of counsel are reviewed de novo. Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012).

PRESERVATION OF ERROR.

The district court ruled on the issue raised in this appeal, and consequently error is preserved. See DeVoss v. State, 648 N.W.2d 56, 61 (Iowa 2002).

DISCUSSION.

The right to counsel is the right to effective counsel and means the accused is entitled to conscientious, meaningful representation wherein the accused is advised of his rights and able counsel is given a reasonable opportunity to perform the tasks assigned ...


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