from the Iowa District Court for Linn County, Marsha A.
Cox appeals the district court's denial of his
J. Viner of Viner Law Firm, P.C., Cedar Rapids, for
J. Miller, Attorney General, and Linda J. Hines, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
Cox appeals the district court's denial of his
postconviction-relief (PCR) application, challenging the
district court's finding trial counsel was not
ineffective for failing to prepare a full and fair
diminished-capacity defense. Our review is de novo. See
Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). In
2013, Cox pled guilty to one count of robbery in the first
degree and two counts of robbery in the second degree. Cox
claims he pled guilty "for fear that his attorney was
not prepared to present the diminished capacity
defense." Following trial on Cox's PCR application,
the district court entered a thorough and well-reasoned
opinion that provided, in part:
A review of the three felony court files, as well as
consideration of the evidence at the post-conviction trial,
leads the Court to conclude that Counsel's zealous
representation of Cox in the three robbery cases was
significantly beyond the minimum level of competency required
by the federal and Iowa constitutions. At one point in 2010,
Counsel successfully obtained the dismissals of all three
actions against Cox on the basis of the criminal
defendant's right to a speedy trial. Once the actions
were reinstated pursuant to the procedendo issued by the
Court of Appeals, Counsel immediately proceeded to obtain
psychologist Jack Baker to testify at trial, filed a lengthy
motion to dismiss on the bases of double jeopardy, due
process, and equal protection laws, and obtained depositions
of Cox's relatives to buttress Cox's defense. Counsel
negotiated an extremely favorable plea agreement for Cox.
Then, even after Cox had entered pleas of guilty to the
robbery charges, Counsel filed an impressive and creative
constitutional challenge to the mandatory sentencing
provisions in the Iowa Code that follow a conviction of
Counsel's assistance of Cox throughout the course of
Counsel's representation was diligent. His work was
dogged. Counsel's effort in evaluating Cox's
competency to stand for trial demonstrates Counsel's
zealous representation. Counsel first obtained a competency
evaluation from Dr. Frank Gersh, who was unable to reach a
conclusion to a reasonable degree of certainty. Counsel then
secured Dr. Luis Rosell, who determined that Cox was
competent. After psychologist Jack Baker raised the issue of
competency along with [his] determination on diminished
responsibility, Counsel again sought leave to conduct a
competency evaluation, which was rejected by the Court. After
the State's expert Dr. Michael Taylor, who was supposed
to evaluate Cox for the purpose of the diminished
responsibility defense, reached the conclusion of
incompetency, Counsel again sought leave to evaluate
Cox's competency to stand trial. This time, the Court
determined there was sufficient evidence to find Cox
incompetent, suspended all actions against Mr. Cox
indefinitely, and committed him to the [Iowa Medical and
Classification Center] for treatment.
Evidence shows that Counsel's preparation for the trial .
. . is adequate. Counsel resisted the State's effort to
exclude psychologist Mr. Baker and Dr. Johnson from
testifying on the diminished responsibility defense, filed
proposed jury instructions explaining the defense to be
raised, filed a motion in limine seeking to exclude
statements that would prejudice Cox at trial, and filed a
trial memorandum urging the Court to consider the alternative
charge of extortion, which carries a lighter sentence.
It is true that Defendant's Notice of Expert Witness,
filed back on July 13, 2009, listed only Dr. David Baker. It
is clear, however, from the filings immediately before trial
that the State expected the defense to call both Dr. Johnson
and Mr. Baker. This is shown in the State's Motion in
Limine filed on August 12, 2012, in which the State
specifically objected to the admission of testimony from Jack
Baker regarding the defense of diminished responsibility.
Similarly, the defense made abundantly clear its position on
the matter when [trial counsel] wrote in Defendant's
Trial Memorandum, filed on May 6, 2013, at page 5: "Mr.
Cox intends to call Jack Baker, psychologist, and Dr. David
Johnson to testify about Mr. Cox's limited ability to
think in support of his justification defense."
district court went on to consider, in the alternative, that
even had Cox's trial counsel not intended to call Baker,
this would not constitute ineffective assistance, as Dr.
Johnson may have been more credible, Baker had less
impressive credentials, and Baker had given some problematic
testimony during a deposition. We note Cox's trial
counsel also testified at the PCR hearing that he was
prepared to proceed to trial. On appeal, Cox does not dispute
the facts as outlined by the district court. He simply
maintains his trial counsel was not prepared because his
trial counsel "was going to call the doctor who
evaluated [Cox] in 2008 as to competency instead of the
doctor (Dr. Jack Baker) who evaluated Mr. Cox in 2012."
Upon our de novo review, we affirm the finding of the
district court without further opinion pursuant to Iowa Court
Rule 21.26(1)(d) and (e).