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Keys v. State

Court of Appeals of Iowa

June 21, 2017

ANTHONY DONATELLO KEYS, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.

         Applicant appeals from the district court's denial of his application for postconviction relief.

          Jack Bjornstad of Jack Bjornstad Law Office, Okoboji, for appellant.

          Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney General, for appellee State.

          Considered by Danilson, C.J., and Potterfield and Bower, JJ.

          POTTERFIELD, Judge.

         Anthony Keys appeals from the district court's denial of his application for postconviction relief (PCR). Keys was convicted of possession of a controlled substance with intent to deliver (cocaine) following a jury trial in 2011. He was sentenced pursuant to the habitual-offender and second-offender enhancements and received a sentence of incarceration not to exceed twenty-five years. On direct appeal, Keys claimed his trial counsel was ineffective for failing to object to a jury instruction defining possession. A panel of our court affirmed Keys's conviction, finding no prejudice resulted from counsel's failure to object. See State v. Keys, No. 11-2089, 2013 WL 1457044, at *3 (Iowa Ct. App. Apr. 10, 2013). Keys initially filed his application for PCR in February 2015 and then filed an amended application in June 2015. In it, Keys maintained trial counsel was ineffective in five ways: failing to challenge the search of his hotel room, failing to obtain the officer's dash cam video, providing deficient advice concerning waiver of speedy trial, failing to call a potential defense witness to testify, and failing to question law enforcement witnesses. The district court denied his application, and Keys appealed.

         Here, for the first time, Keys alleges both PCR counsel and direct-appeal counsel were ineffective for not raising the issue that trial counsel was ineffective for allowing an officer to testify as to his opinion that the amounts and circumstances of the controlled substance evidence indicated an intent to deliver-as opposed to merely possess for personal use-the cocaine. Keys may assert for the first time on appeal that his trial, appellate, and PCR counsel were ineffective. See Dunbar v. State, 515 N.W.2d 12, 16 (Iowa 1994) ("Once the trial court appointed counsel to represent Dunbar in his attempt to obtain postconviction relief, Dunbar was entitled to the effective assistance of this counsel. If his court-appointed counsel was ineffective, Dunbar could raise this claim on his appeal from the denial of his application."). We review claims of ineffective assistance de novo. See Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010). "To succeed on an ineffective-assistance-of-counsel claim, [Keys] must show '(1) counsel failed to perform an essential duty; and (2) prejudice resulted.'" Id. at 158 (citation omitted). "To establish prejudice, a defendant must show the probability of a different result is 'sufficient to undermine confidence in the outcome.'" Id. (citation omitted).

         Keys maintains the expert witness was improperly allowed to testify, without objection from his trial counsel, that Keys had the intent to deliver the drugs. Specifically, Keys takes issue with the following pieces of testimony during the direct examination of Officer Adam Galbraith:

Q. And in this case, from taking a look at the evidence that was found in this case, you termed this as more street-level dealing? A. Correct.
Q. You testified regarding the initial scale and initial baggie. Do the two cell phones and the baggies that you found-and the baking soda and the other items, did those items do anything to change your opinion that the cocaine and the scale, that it was meant for sale and distribution? A. No, they do not change it.
Q. Does it increase your opinion as far as to whether those items were held for sale and distribution? A. Yes.
Q. Why is that? A. When you look at all the items together, two phones, the cocaine amount and the cocaine, the way it was packaged, the scale, the sandwich baggies, the baking soda, the glass; you compare all those things together and you put them together, it only strengthens and furthers my opinion ...

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