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Gilmore v. State

Court of Appeals of Iowa

March 8, 2017

DONTE MARCELL GILMORE, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge.

         Donte Gilmore appeals the dismissal of his application for postconviction relief. AFFIRMED.

          John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Genevieve Reinkoster, Assistant Attorney General, for appellee State.

          Considered by Bower, P.J., McDonald, J., and Mahan, S.J. * Blane, S.J. [*] takes no part.

          MAHAN, Senior Judge.

         Donte Gilmore appeals the dismissal of his application for postconviction relief (PCR). He contends the PCR court erred in rejecting his ineffective assistance of counsel claims.

"Generally, an appeal from a denial of an application for postconviction relief is reviewed for correction of errors at law." Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012) (quoting Goosman v. State, 764 N.W.2d 539, 541 (Iowa 2009)). However, "[u]nder both the State and Federal Constitutions, ineffective-assistance-of-counsel claims are reviewed de novo." Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). We review these claims de novo because they are based on the constitutional guarantees of the effective assistance of counsel found in the Sixth Amendment of the U.S. Constitution and article I, section 10 of the Iowa Constitution. See State v. McNeal, 867 N.W.2d 91, 99 & n.1 (Iowa 2015).

Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016).

         In order to prevail on his ineffective-assistance-of-counsel claims, the applicant must prove by a preponderance of the evidence both that (1) trial counsel breached an essential duty and (2) prejudice resulted from that breach. See id. In Strickland v. Washington, 466 U.S. 668, 687 (1984), the United States Supreme Court explained a successful ineffectiveness claim will establish that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment and "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Upon our de novo review, we conclude Gilmore was not deprived of a fair trial by the alleged errors of counsel.

         Gilmore shot and killed his wife-this is not in dispute. A jury rejected his insanity and diminished-responsibility defenses and convicted him of first-degree murder. State v. Gilmore, No. 11-0858, 2012 WL 3589810, at *1 (Iowa Ct. App. Aug. 22, 2012). On appeal from his conviction, this court rejected Donte's allegation that his trial counsel were ineffective for failing to object to the jury instructions relating to his insanity defense. See id. at *6-9.

         In his PCR action, Gilmore alleged his two trial counsel, Philip Reser and Wendy Samuelson, were ineffective in failing to move for a mistrial after receiving notes from the jury, failing to object to the prosecutor's questions to a jailhouse witness's testimony concerning religious beliefs, failing to object to the introduction of photographs of assault rifles, failing to convince him to accept a plea agreement (requiring him to plead guilty "to second degree murder and attempted murder and run those two consecutive"), and failing to demonstrate police had moved a hammer at the crime scene.

         After a hearing and reopening the record for additional claims and evidence to be submitted, the PCR court carefully addressed each of Gilmore's claims and dismissed the application. Upon our de novo review of Gilmore's claims and the record, we agree with the district court Gilmore has failed to establish his trial counsel's performances were so deficient he was deprived of a fair trial.

         1. ...


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