DEANTHONY D. KIRKLAND, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.
from the Iowa District Court for Black Hawk County, Kellyann
M. Lekar, Judge.
Kirkland appeals the district court's denial of his
applications for postconviction relief.
L. Campbell of Dickey & Campbell Law Firm, P.L.C., Des
Moines, for appellant.
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee State.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
Kirkland appeals the district court's denial of his two
applications for postconviction relief. We find
Kirkland's trial counsel was ineffective by failing to
timely file an appeal but the underlying claim that the
traffic stop was pretextual has no merit. Additionally, we
find Kirkland's counsel was not ineffective for failing
to: (1) file a motion to suppress, (2) object during opening
statements, (3) object to the admissibility of a gun found in
Kirkland's home, and (4) object to the same judge
presiding at both the underlying criminal trial and the
postconviction hearing. We affirm.
Background Facts and Proceedings
October 7, 2012, Kirkland, along with other individuals,
robbed a group of people in a Waterloo apartment. The
apartment residents identified Kirkland as a pizza delivery
driver who had delivered pizza earlier in the night. Officers
determined Kirkland's identity and waited outside
Kirkland's residence. When Kirkland left, the officers
noticed Kirkland's vehicle did not have a license plate
or a functioning license plate lamp and the temporary paper
tag was not clearly displayed. After Kirkland was stopped,
officers discussed the equipment violations with him, and
began to ask questions about the robbery. They informed
Kirkland they were in the process of securing a search
warrant for his home. Kirkland stated he had a non-operable
handgun in his bedroom. Officers also searched the vehicle
and found marijuana.
filed a motion to suppress the gun discovered in his
apartment and his statements about the gun. No motion to
suppress was filed concerning the vehicle stop. The district
court denied the motion. Kirkland proceeded to trial, and was
convicted of first degree robbery, in violation of Iowa Code
section 711.2 (2011), first degree theft, in violation of
Iowa Code section 714.2(1), and carrying weapons, in
violation of Iowa Code section 724.4. On February 25, 2013,
Kirkland was sentenced to a period of incarceration not to
exceed twenty five years for the robbery, ten years for the
theft, and two years for carrying weapons, to run
concurrently. On April 23, Kirkland pled guilty to possession
of marijuana with intent to distribute, in violation of Iowa
Code section 124.401(d) and was sentenced to five years of
incarceration to run concurrently with the robbery case.
appealed his convictions for robbery, theft, and carrying
weapons, which were affirmed on March 12, 2014. See State
v. Kirkland, No. 13-0980, 2014 WL 970043, at *5 (Iowa
Ct. App. Mar. 12, 2014). On August 27, Kirkland filed for
postconviction relief (PCCV125656). The State filed a motion
to dismiss claiming Kirkland was precluded from raising the
issues he had already raised on direct appeal. Kirkland's
counsel was directed to file an amended petition. Counsel
failed to do so, and the district court dismissed portions of
the postconviction action. A hearing on the merits was held,
and his application was denied April 11, 2016.
10, 2015, Kirkland filed a postconviction relief action on
the possession of marijuana with intent to distribute case
(PCCV127705). Kirkland's application was denied on
December 7, 2015, as the petition was not verified and
Kirkland had discharged his sentence related to the charge.
Kirkland filed a notice of appeal for both postconviction
actions on April 13, 2016.
Standard of Review
standard of review on appeal from the denial of
postconviction relief is for errors at law."
McLaughlin v. State, 533 N.W.2d 546, 547 (Iowa
1995). However, "[w]hen there is an alleged denial of
constitutional rights, . . . we make our own evaluation of
the totality of the circumstances in a de novo review."
Id. Claims of ineffective assistance of counsel are
reviewed de novo. Ledezma v. State, 626 N.W.2d 134,
141 (Iowa 2001). "To prevail on a claim of ineffective
assistance of counsel, the [defendant] must demonstrate both
ineffective assistance and prejudice." Id. at
142. "If the claim lacks prejudice, it can be decided on
that ground alone without deciding whether the ...