This decision has been referenced in a "Decisions Without Published Opinions" table in the North Western Reporter.
Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, District Associate Judge. A defendant appeals his conviction and sentence for serious domestic abuse assault.
Mark C. Smith, State Appellate Defender, Martha J. Lucey, Assistant Appellate Defender, and Jason M. Groth, Student Legal Intern, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Luke Hansen, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Tabor and McDonald, JJ.
Adam Underwood contends he was in custody when questioned in his apartment by police officers who were let in by his live-in girlfriend to investigate her complaint he repeatedly punched her. That contention is the primary basis of Underwood's appeal from his conviction for serious domestic abuse assault. He argues his trial counsel was ineffective for withdrawing a motion to suppress his statements. He asserts the statements were inadmissible because of a Miranda  violation and because they were not voluntary. He also argues the district court abused its discretion by not giving a reason for imposing consecutive sentences.
We find Underwood was not in custody at the time of questioning and his statements were voluntary. Therefore, his counsel was not ineffective in withdrawing the motion to suppress. We also find the district court gave reasons for imposing consecutive sentences. Accordingly, we affirm.
I. Background Facts and Proceedings
By the summer of 2012, Lenora Trull and Adam Underwood had been in a relationship for six years. They had lived together at 927 North English Street in Burlington for the last two years.
Trull testified she spent the evening of July 27, 2012, drinking with Underwood until they both fell asleep. In the early morning of July 28, Trull awoke to Underwood trying to strangle her. He also punched her nine or ten times. Trull tried to leave, but Underwood refused to let her go.
According to Trull, it was not until Underwood had fallen back asleep that she was able to leave and call her friend Dustina Fenton at 3:30 or 4:00 p.m. on July 28. Trull met Fenton at Fenton's apartment, and Fenton called the police. Trull suffered a broken rib, an eye contusion, and bruises to her arms, legs, back, and face.
Burlington Police Officer Tim Merryman responded to Fenton's call. Trull told the officer that Underwood had assaulted her. Merryman photographed her injuries and interviewed her. She told the police where she and Underwood lived. Officer Merryman and three other officers went to the apartment, where Trull let them in through an unlocked door. Trull testified she " opened the door and immediately went back downstairs to Dustina's."
The officers did not knock, and Merryman could not remember if they announced their presence. Officer Merryman and another officer entered the living room where Underwood was asleep on the couch. The other two officers waited in the kitchen. Officer Merryman woke Underwood and told him why the police were in his apartment. Merryman asked Underwood what had happened. Initially, Underwood said nothing had happened. Then he told Merryman that Trull had been to another residence and when she came back her " pants were ripped and that she said she had been assaulted by two black males."
Officer Merryman advised Underwood that Trull had told the police something " totally different" and her injuries were consistent with her story. Then Underwood admitted to Merryman he had punched Trull " about four times." When asked why, Underwood said when he is intoxicated he " does things he won't normally do." The officers then arrested Underwood. Officer Merryman estimated the whole police action--entering the apartment, questioning Underwood, and arresting him--took between five and ten minutes.
On August 2, 2012, the State charged Underwood with serious domestic abuse assault, in violation of Iowa Code sections 708.2A and 236.2 (2011), and false imprisonment, in violation of section 710.7. On September 25, 2012, defense counsel filed a motion to suppress alleging the police illegally entered his apartment and questioned him in violation of his Miranda rights. A hearing on the motion to suppress was set for October 5, 2012, and the previously scheduled pretrial conference was continued from September 27 to October 5. Underwood, through counsel, withdrew the motion to suppress on October 3.
A jury trial commenced on October 24, 2012. The next day, the jury found Underwood guilty of serious domestic abuse assault but found him not guilty of false imprisonment. The district court sentenced Underwood to one year in prison to run consecutively to the sentence he was already serving for operating while intoxicated. He now appeals.
II. Standard of Review
We review claims of ineffective assistance of counsel de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). We review sentencing decisions for an abuse of discretion. State v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010). We are unable to review for an abuse of discretion where the sentencing court does not provide reasons for imposing consecutive sentences. See State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000) (" Although the reasons need not be detailed, at least a cursory explanation must be provided to allow appellate review of the trial court's discretionary action." ).
A. Did Underwood receive ineffective assistance of counsel?
To establish his claim of ineffective assistance of counsel, Underwood must satisfy a two-prong test, showing: (1) counsel failed to perform an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If either prong is unsatisfied, we affirm. Anfinson v. State, 758 N.W.2d 496, 499 (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). Under the duty prong of Strickland, " we measure counsel's performance against the standard of a reasonably competent practitioner." Id. at 158. We presume the attorney performed his duties competently. Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012). Underwood can successfully rebut this presumption by showing a preponderance of the evidence demonstrates counsel failed to perform an essential duty. See id . In deciding whether counsel failed to perform an essential duty, we measure trial counsel's performance " 'objectively by determining whether [it] was reasonable, under prevailing professional norms, considering all the circumstances.'" Clay, 824 N.W.2d at 495 (quoting State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010)).
To prove prejudice, Underwood must show that, but for counsel's unprofessional errors, it is reasonably probable the result of the proceeding would have been different. State v. Madsen, 813 N.W.2d 714, 727 (Iowa 2012). If the defendant asks us to decide the claim on direct appeal, we must determine if the record is ...