January 11, 2017
HUBERT TODD, JR., Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.
from the Iowa District Court for Black Hawk County, Jon C.
defendant appeals the denial of his application for
postconviction relief. AFFIRMED.
A. Walker of Law Office of Joel Walker, Davenport, for
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Potterfield and Bower,
Background Facts and Proceedings.
March 5, 2010, the State charged Hubert Todd with simple
domestic assault, in violation of Iowa Code section 708.2A.2
(2009), and fifth-degree criminal mischief, in violation of
Iowa Code section 716.6. At the initial court appearance on
March 5, the court appointed the public defender's office
to represent Todd; however, due to a conflict of interest,
the public defender's office declined the appointment and
a new attorney was appointed.
initial appearance, the court informed Todd that if he wished
to invoke his right to a jury trial, he needed to do so
within ten days of that date, which made the deadline March
15. Todd and his appointed counsel had their first
consultation on March 17.
demand was ever made, and Todd was convicted on both counts
at a bench trial before a magistrate on October 29,
2010. The court sentenced him to seven days in
jail with all but two days suspended and ordered Todd to
attend a batterer's education program.
was granted discretionary review from the simple misdemeanor
convictions and asserted an ineffective-assistance-of-counsel
claim, alleging his counsel failed to advise him of his right
to a jury trial and also alleging his attorney failed to file
a jury demand despite Todd's claimed request for one. Our
court affirmed his conviction, finding sufficient evidence,
and preserved his ineffective-assistance claim concerning the
jury-trial demand for a possible postconviction relief (PCR)
then filed an application for PCR on August 7, 2015. He
argued his trial counsel rendered ineffective assistance by
failing to file a jury-trial demand prior to the deadline,
thus depriving him of his right to trial by jury. Although he
initially claimed he told his attorney he wanted a jury
trial, at the PCR proceeding, he changed his position and
indicated that he told someone at the public defender's
office over the phone. The court found this testimony to be a
"recent fabrication" and found Todd "never
stated to anyone that he wanted a jury trial until after his
conviction was on appeal and neither his trial attorney nor
the public defender's office were ineffective for failing
to demand one." Todd also conceded at the postconviction
hearing that the magistrate advised him at his initial
appearance of his right to a jury trial and the need to make
a written demand.
the denial of his application, Todd appeals.
Standard of Review.
proceedings are law actions ordinarily reviewed for errors at
law." Bagley v. State, 596 N.W.2d 893, 895
review claims of ineffective assistance of counsel de novo.
See Ennenga v. State, 812 N.W.2d 696, 701 (Iowa
2012). To prevail on a claim of ineffective assistance of
counsel, Todd must prove by a preponderance of the evidence
(1) his attorney failed to perform an essential duty and (2)
prejudice resulted from the failure. See State v.
Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). Todd's
claim will fail if either element is lacking. See State
v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015). Todd must
show "a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different." See
Strickland v. Washington, 466 U.S. 668, 694 (1984).
"A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id.
order to maintain a claim of ineffective assistance of
counsel for postconviction review, an applicant must make a
minimal showing by which this court can assess the viability
of the claim. See State v. Wagner, 410 N.W.2d 207,
215 (Iowa 1987). Todd has not made any such showing here. He
has not shown how a jury trial would have changed the
resulting guilty verdict. See id.
proof he was prejudiced, Todd's claim cannot stand.
See Ambrose, 861 N.W.2d at 556. Therefore, we need
not consider the remaining element. See Dempsey v.
State, 860 N.W.2d 860, 868 (Iowa 2015) ("If we
conclude a claimant has failed to establish either of these
elements, we need not address the remaining element.").
on the foregoing, we affirm the district court's denial
of Todd's application for PCR.
 The record before us indicates Todd
was convicted of fifth-degree criminal mischief; however, the
opinion rendered in his appeal by discretionary review
indicates the conviction was for third-degree criminal
mischief, but also states the crime was a simple misdemeanor.
See State v. Todd, No. 11-1958, 2014 WL 465822, at
*1 (Iowa Ct. App. Feb. 5, 2014); compare Iowa Code
§ 716.5(2) ("Criminal mischief in the third degree
is an aggravated misdeameanor."), with Iowa
Code § 716.6(2) ("Criminal mischief in the fifth
degree is a simple misdemeanor.").