from the Iowa District Court for Black Hawk County, David P.
appeals from the district court's denial of his
application for postconviction relief.
Bjornstad of Jack Bjornstad Law Office, Okoboji, for
J. Miller, Attorney General, and Darrel Mullins, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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.
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.
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