from the Iowa District Court for Jasper County, Terry
applicant appeals the district court decision denying his
request for postconviction relief from his conviction for
child endangerment causing death.
Fishman of Nelsen & Feitelson Law Group, P.L.C., West Des
Moines, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
Olea appeals the district court decision denying his request
for postconviction relief from his conviction for child
endangerment causing death, a class "B" felony with
an enhanced sentence, in violation of Iowa Code section
726.6(1)(b), (3), and (4) (2015). Because Olea could not
prove either a breach of duty or any prejudice resulting from
either his trial or postconviction counsel's performance,
we affirm the decision of the district court denying the
application for postconviction relief.
Background Facts and Proceedings
February 2014, following a jury trial, Olea was convicted of
child endangerment causing the death of his six-month-old
son, K.O. His conviction was affirmed on appeal. State v.
Olea, No. 14-0218, 2015 WL 2406757, at *6 (Iowa Ct. App.
May 20, 2015).
filed an application for postconviction relief (PCR) in 2015
raising claims of ineffective assistance of trial counsel,
and a PCR hearing was held August 25, 2016. Olea claimed his
trial counsel should have objected to the alleged presence of
a thirteenth juror during deliberations and trial counsel
should have offered evidence the child's treating
physicians were liable for failing to diagnose what he
claimed was the cause of death, cerebral venus thrombosis
(CVT). After receiving testimony and exhibits, the PCR court
issued its ruling denying Olea's claims. Olea appeals
from that ruling and also claims he received ineffective
assistance of postconviction counsel. He asserts PCR counsel
conceded an issue after the PCR hearing, failed to introduce
evidence of a possible CVT diagnosis, and failed to file a
motion pursuant to Iowa Rule of Civil Procedure 1.904(2)
seeking an additional finding by the PCR court.
Standard of Review
review claims of ineffective assistance of counsel de novo.
Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012).
To establish a claim of ineffective assistance of counsel, an
applicant must show (1) the attorney failed to perform an
essential duty and (2) prejudice resulted to the extent it
denied the applicant a fair trial. State v. Carroll,
767 N.W.2d 638, 641 (Iowa 2009). An applicant has the burden
to show by a preponderance of the evidence counsel was
ineffective. See State v. McKettrick, 480 N.W.2d 52,
55 (Iowa 1992). While our review is de novo, we give weight
to the trial court's findings on the credibility of
witnesses. Taylor v. State, 352 N.W.2d 683, 687