from the Iowa District Court for Plymouth County, Edward A.
from the denial of postconviction relief. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.
Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey &
Daane, Sioux City, for appellant.
J. Miller, Attorney General, and Linda J. Hines, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Doyle and McDonald, JJ.
Ruden was convicted of possession of marijuana, third
offense, and sentenced to probation. This court affirmed his
conviction on direct appeal. See State v. Ruden, No.
11-0422, 2013 WL 1453068, at *3 (Iowa Ct. App. Apr. 10,
2013). Ruden subsequently filed an application for
postconviction relief pursuant to Iowa Code chapter 822
(2013). The district court denied the application for
postconviction relief, and Ruden timely filed this appeal.
case arises out of a search of Ruden's residence in which
marijuana was discovered. In April 2010, Deputy U.S. Marshal
Charles McCormick and Plymouth County Sheriff's Deputy
Jeff TeBrink conducted a sex-offender-registry check at
Ruden's residence. McCormick knocked on Ruden's door.
Ruden opened the door, and McCormick informed Ruden of the
nature of the visit. McCormick detected the smell of burnt
marijuana, which he testified was an "immediately
recognizable scent" based on his training and
experience. When McCormick asked whether Ruden had been
smoking marijuana, Ruden denied it. Ruden explained he had
recently cleaned his tortoise tank and the smell was mold and
rotting food material. The officers testified they asked
Ruden if they could enter the home. Without waiting for an
affirmative yes or no, they walked into the home when Ruden
stepped aside. Ruden testified he allowed the officers into
the home to show them the tortoise tank. Ruden had two guests
in his home at the time of entry. Once the officers were
inside the home, TeBrink went to the living room and asked
the guests if they had been smoking marijuana. They denied
they had. While in the living room, TeBrink noticed an
ashtray. TeBrink stated the ashtray contained marijuana
residue and seeds or small amounts of a green leafy
substance. McCormick testified it contained marijuana ashes
and the end of a marijuana cigarette. Ruden claimed the
ashtray did not contain marijuana and was used by guests to
put out cigarettes. Regardless, TeBrink began questioning
Ruden about whether marijuana was in the home. TeBrink asked
to search the home. TeBrink told Ruden they could do this
"the hard way" and get a warrant or they could do
this "the easy way" and Ruden could consent. Ruden
gave oral consent and led the officers to a cache of
marijuana. Ruden subsequently signed a consent-to-search
postconviction action Ruden had the contents of the ashtray
tested. Two tests were performed on the ashtray. One was
positive for the presence of THC, and the other was negative.
The officer conducting the tests explained the results of the
test were thus inconclusive. He did testify he could identify
stems and unknown green material in the ashtray. He testified
cannabinoids degrade over time, which could account for the
fact the second test was not positive for THC. Ruden claimed
his trial counsel was ineffective "(1) in failing to
have tested the contents of the ashtray prior to the
suppression hearing; (2) in failing to present the results of
such testing at the suppression hearing; (3) in failing to
present the actual ashtray and its contents, or at least the
photographs of the ashtray taken by law enforcement at the
time of its seizure, at the suppression hearing; and (4) in
failing to present the testimony of . . . the other
individuals who were present at Ruden's residence at the
time of Ruden's arrest." The district court denied
Ruden's application for postconviction relief.
review claims of ineffective assistance of counsel de novo.
See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).
To establish a claim of ineffective assistance of counsel, an
applicant is required to prove: "(1) his trial counsel
failed to perform an essential duty, and (2) this failure
resulted in prejudice." Id. (citing
Strickland v. Washington, 466 U.S. 668, 687-88
(1984)). There is a strong presumption of counsel's
competence. See Strickland, 466 U.S. at 689.
"In evaluating the objective reasonableness of trial
counsel's conduct, we examine 'whether, in light of
all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent
assistance.'" State v. Madsen, 813 N.W.2d
714, 724 (Iowa 2012) (citation omitted). "Miscalculated
trial strategies and mere mistakes in judgment normally do
not rise to the level of ineffective assistance of
counsel." Ledezma v. State, 626 N.W.2d 134, 143
(Iowa 2001). As to the second element, "[t]he ultimate
inquiry on prejudice is whether trial counsel's allegedly
deficient performance caused a complete 'breakdown in the
adversary process' such that the conviction is
unreliable." Zaabel v. State, No. 15-0220, 2016
WL 4035236, at *2 (Iowa Ct. App. July 27, 2016) (quoting
Strickland, 466 U.S. at 687). Thus the applicant
"must ultimately show that his attorney's
performance fell outside a normal range of competency and
that the deficient performance so prejudiced him as to give
rise to the reasonable probability that, but for
counsel's errors, the result of the proceeding would have
been different." Dunbar v. State, 515 N.W.2d
12, 15 (Iowa 1994). Failing to prove either element is fatal
to the applicant's claim. 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."); State v.
Graves, 668 N.W.2d 860, 869 (Iowa 2003) ("A
defendant's inability to prove either element is
failed to establish he suffered constitutional prejudice.
Ruden contends if the contents of the ashtray had been
tested, the negative test results combined with his
guests' testimony-that they had not smoked marijuana-
would have undermined the credibility of the investigating
officers and led to the suppression of the marijuana
evidence. This argument is speculative at best. More
important, the argument is predicated on the false assumption
the test result at the time of the suppression hearing would
have been the same as the test result at the time of the
postconviction hearing. The testing officer explained
cannabinoids degrade over time thus potentially explaining
the inconclusive result. Most important, Ruden's argument
is immaterial. It does not matter whether the ashtray in fact
contained marijuana detritus. And it does not matter whether
Ruden's guests denied they had been smoking marijuana.
The dispositive fact is Ruden invited the officers into his
home and gave oral and written consent to search, even
directing officers to his cache of marijuana. Consent to
search is a recognized exception to the warrant requirement.
See Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973) ("It is . . . well settled that one of the
specifically established exceptions to the requirements of
both a warrant and probable cause is a search that is
conducted pursuant to consent."); State v.
Baldon, 829 N.W.2d 785, 791 (Iowa 2013) ("One
recognized exception to the warrant requirement of our
constitution is consent."); State v. Reiner,
628 N.W.2d 460, 464-65 (Iowa 2001) ("One
well-established exception to the warrant requirement is a
search conducted by consent."). Thus, the result of the
suppression hearing would not have been different.
Ruden's claim thus fails. See Dempsey, 860
N.W.2d at 868.
contends the district court erred in assessing the costs of
his court-appointed, postconviction-counsel against him
without first making a determination whether Ruden could
reasonably afford to pay the costs. The State contends Ruden
failed to preserve error on the issue. Under the
circumstances, we disagree and will address the issue on the
proceedings are civil actions governed by Iowa Code chapter
822. See Noear v. State, No. 13-1379, 2014 WL
3748276, at *1 (Iowa Ct. App. July 30, 2014). Iowa Code
section 815.9(6), which applies to chapter 822, states:
If the person receiving legal assistance is acquitted in a
criminal case or is a party in a case other than a criminal
case, the court shall order the payment of all or a portion
of the total costs and fees incurred for legal assistance, to
the extent the person is reasonably able to pay, after an