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See v. State

Court of Appeals of Iowa

March 12, 2014

JAMES FLOYD SEE II, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee

Editorial Note:

This decision is published in table format in the North Western Reporter.

Appeal from the Iowa District Court for Monroe County, Lucy J. Gamon, Judge. James See II appeals from the dismissal of his application for postconviction relief.

AFFIRMED.

Amanda Demichelis of Demichelis Law Firm, P.C., Chariton, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, and Steven E. Goodlow, County Attorney, for appellee State.

Considered by Potterfield, P.J., and Doyle and Bower, JJ.

OPINION

POTTERFIELD, P.J.

James See II appeals from the dismissal of his application for postconviction relief. He argues he was provided with ineffective assistance of counsel in several ways. First, he argues his trial and postconviction counsel were ineffective in failing to object (or raise in postconviction proceedings the failure to object) to statistical evidence and leading questions. Next, he argues the postconviction court erred in ruling he was not provided ineffective assistance by counsel's failure to object to hearsay, failure to object to a juror statement during voir dire, and by counsel giving improper advice regarding his motion in arrest of judgment. Finally, See argues postconviction and trial counsel provided ineffective assistance by failing to argue the cumulative effect of these errors was prejudicial. We affirm, finding See does not show he was prejudiced regarding the admission of the statistical evidence, the record is insufficient to determine his claim regarding leading questions, the hearsay evidence was cumulative, he does not show he was prejudiced regarding the admission of the juror statement or by the motion in arrest of judgment, and his cumulative error argument is without merit.

I. Facts and Proceedings

This is the second time we have heard See's case on appeal. State v. See, 805 N.W.2d 605 (Iowa Ct. App. 2011). In his prior appeal, we considered whether his counsel breached an essential duty in failing to object to marshalling instructions. Id. We concluded he could not establish prejudice for his claim and affirmed his conviction. Id. at 607. Once again, we are asked by See to evaluate his counsel's performance at trial (and, in turn, his postconviction counsel's arguments regarding trial counsel's performance).

See was charged with three counts of second-degree sexual abuse of a child. Prior to trial, See entered an Alford plea[1] to two counts of second-degree sexual abuse. He filed a motion in arrest of judgment, and the court allowed him to withdraw the plea and proceed to trial. The child, a DHS worker, a police officer, a child protective center medical examiner, the child's mother, See, a doctor, and another forensic interviewer testified. See moved for judgment of acquittal, which was denied. He was found guilty on all three counts. After, he filed a motion for new trial and a motion in arrest of judgment; both were denied.

After his unsuccessful direct appeal to our court, See filed an application for postconviction relief on December 11, 2011. He argued four claims of ineffective assistance of counsel before the postconviction judge: 1) improper advice to withdraw his Alford plea, 2) failure to object to a juror's negative comment during voir dire, 3) failure to object to a jury instruction, and 4) failure to object to hearsay testimony. The application was denied and See ...


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