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Sellers v. State

Court of Appeals of Iowa

July 19, 2017

KEVIN SELLERS, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, Lawrence P. McClellan, Judge.

         Appeal from the denial of an application for postconviction relief.

          John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee.

          Considered by Mullins, P.J., and Bower and McDonald, JJ.

          MCDONALD, JUDGE.

         Kevin Sellers beat to death his girlfriend Laura Welch. The State charged Sellers with murder in the second degree. The parties reached an agreement pursuant to which the State amended the trial information to charge Sellers with attempted murder and two counts of willful injury causing serious injury, and Sellers agreed to proceed with a bench trial on the minutes of testimony. Following a trial on the minutes, Sellers was convicted as charged in the amended trial information. In his direct appeal, Sellers challenged the sufficiency of the evidence supporting his conviction for attempted murder, contending "because he had assaulted and beaten Welch in the past, his intent . . . was only to beat Welch like he had done before, not to kill her." State v. Sellers, No. 12-0869, 2013 WL 105281, at *4 (Iowa Ct. App. Jan. 9, 2013). This court affirmed his convictions. See id. at *5. Sellers filed an application for postconviction relief, which the district court denied. Sellers timely filed this appeal.

         "Generally, postconviction relief proceedings are reviewed for corrections of errors at law." Waters v. Iowa Dist. Ct., 783 N.W.2d 487, 488 (Iowa 2010) (citing DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002)). However, claims of ineffective assistance of counsel are reviewed de novo. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

         To prevail on his claim, the applicant must show "(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. 688, 687-88 (1984) and State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004)). "The claimant must prove both elements by a preponderance of the evidence." State v. Madsen, 813 N.W.2d 714, 724 (Iowa 2012) (citing King v. State, 797 N.W.2d 565, 571 (Iowa 2011)). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700; see also State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) ("A defendant's inability to prove either element is fatal."). If the applicant fails to meet his or her burden on either element, the court need not address the other. 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.").

         To establish counsel breached a duty, the applicant must prove "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. "[C]ounsel's performance is measured against the standard of a reasonably competent practitioner." State v. Begey, 672 N.W.2d 747, 749 (Iowa 2003). There is a strong presumption of counsel's competence. See Strickland, 466 U.S. at 689 ("Judicial scrutiny of counsel's performance must be highly deferential.").

It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.

Id. "Miscalculated trial strategies and mere mistakes in judgment normally do not rise to the level of ineffective assistance of counsel." Lado v. State, 804 N.W.2d 248, 251 (Iowa 2011) (quoting Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008)).

         To establish prejudice, the applicant must prove "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. It is not enough to show the breach had only some effect on the outcome, as nearly any act or omission by counsel results in some change to the outcome one way or another, but not necessarily in a way that would undermine its reliability. See id. at 693. Rather, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

         Sellers first contends his trial counsel were ineffective because they were unprepared to try his case and coerced him to proceed with a bench trial on the minutes. At the postconviction trial, Sellers testified he did not believe his lawyers were prepared for trial. He was unaware of any defense strategy. His lawyers had not informed him of any work done on his case leading up to trial. Sellers testified his lawyers repeatedly pressured him to proceed to a bench trial on the minutes. He noted his jury trial was set for the Monday following the Friday on which he finally agreed to trial on the minutes. Sellers testified he reluctantly agreed to proceed as recommended: "I really didn't see any evidence of them preparing any kind of defense. . . . I didn't see them ...


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