from the Iowa District Court for Davis County, Lucy J. Gamon,
Schrock appeals his conviction for third-degree sexual abuse.
C. Smith, State Appellate Defender, for appellant.
J. Miller, Attorney General, and Zachary C. Miller, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., Tabor, J., and Blane, S.J.
VAITHESWARAN, Presiding Judge.
Schrock had sex with a sixteen-year-old girl who babysat his
children. Following a trial on the minutes of testimony, the
district court found Schrock guilty of third-degree sexual
abuse. See Iowa Code §§ 709.1; 709.4(1)(a)
(2016). On appeal, Schrock contends his attorney was
ineffective in (1) "fail[ing] to give notice of the
witnesses he intended to call at the trial, effectively
preclud[ing] presentation [of] most evidence of the
consensual nature of the relationship" and (2)
"unconditionally stipulat[ing] that the trial court
could consider only the various minutes of testimony in
rendering a verdict in this case."
person raising an ineffective-assistance-of-counsel claim
must show (1) deficient performance and (2) prejudice.
See Strickland v. Washington, 466 U.S. 668, 687
(1984). "We ordinarily preserve [ineffective-assistance]
claims for postconviction relief proceedings . . . 'where
the challenged actions of counsel implicate trial tactics or
strategy which might be explained in a record fully developed
to address those issues.'" State v. Clay,
824 N.W.2d 488, 494 (Iowa 2012) (quoting State v.
Rubino, 602 N.W.2d 558, 563 (Iowa 1999)). We also
preserve ineffective-assistance claims if "the present
record does not allow us to decide if such tactic or strategy
was reasonable, under prevailing professional norms."
Id. at 501. And, we preserve claims where more than
one ineffective-assistance claim is raised and the record is
inadequate to address the cumulative effect of the prejudice
arising from all the claims. Id.
present record discloses certain information bearing on the
ineffective-assistance claims. We know that shortly before
the scheduled trial date, Schrock's attorney filed a
document indicating he "had subpoenaed several witnesses
who" would, "if necessary, testify as rebuttal
witnesses" about the "consensual" nature of
the sexual activity. He indicated the identity of the people
was disclosed during his deposition of the sixteen-year-old
girl. The State responded that defense counsel failed to
timely file a witness list as required by Iowa Rule of
Criminal Procedure 2.13(4). See Iowa R. Crim. P.
2.13(4) ("If the defendant has taken depositions under
rule 2.13(1) and does not disclose to the prosecuting
attorney all of the defense witnesses (except the defendant
and surrebuttal witnesses) at least nine days before trial,
the court may order the defendant to permit the discovery of
such witnesses, grant a continuance, or enter such other
order as it deems just under the circumstances. It may, if it
finds that no less severe remedy is adequate to protect the
state from undue prejudice, order the exclusion of the
testimony of any such witnesses."). At a hearing,
Schrock's attorney essentially conceded he did not file a
formal witness list because he believed the witnesses to be
"surrebuttal witnesses" who did not have to be
named. The district court ruled the defense could not
"bring these people up in his case in chief" and
"if there [was] no rebuttal, " there would not be
"any surrebuttal" and the case would "go
forward with the witnesses who are currently named."
Schrock subsequently waived his right to a jury trial and
agreed to a bench trial on the minutes of evidence.
record is inadequate to decide the ineffective-assistance
claims. While we generally know what counsel hoped to elicit
from the additional witnesses, we do not know whether the
proposed testimony fell within the strict parameters set by
the court in pretrial rulings. Without this knowledge, we
cannot determine whether the defense was prejudiced by
counsel's failure to file a witness list. And, without
this knowledge, we cannot gauge the prejudice resulting from
counsel's decision to stipulate to a trial on the minutes
of testimony. Because we cannot assess the prejudice prong of
the Strickland test either individually or
cumulatively, we preserve the
ineffective-assistance-of-counsel claims for postconviction
Senior judge assigned by order
pursuant to Iowa Code section 602.9206 ...