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Pena v. State

Court of Appeals of Iowa

May 2, 2018

DERRICK STEVEN PENA, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge.

         The applicant appeals from the denial of his application for postconviction relief. AFFIRMED.

          Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

          Thomas J. Miller, Attorney General, and Benjamin M. Parrott, Assistant Attorney General, for appellee State.

          Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          POTTERFIELD, Judge.

         Derrick Pena appeals from the denial of his application for postconviction relief (PCR) following his 2011 convictions for robbery in the first degree, burglary in the first degree, and willful injury causing serious injury. Pena claims trial counsel provided ineffective assistance in a number of ways: (1) failing to inform him of his right to testify or to advise him he should do so; (2) failing to properly investigate and prepare the case; (3) failing to object to testimony regarding statements Pena made about robberies in the area prior to the incident; (4) failing to advise him of his plea options; and (5) failing to make a Batson challenge[1] when the prosecution struck one of two minority potential jurors. Pena also claims direct appeal counsel provided ineffective assistance by failing to challenge the district court's denial of his motion for new trial on direct appeal.

         I. Prior Proceedings.

         In March 2011, Pena was charged with burglary in the first degree, robbery in the first degree, conspiracy to commit a forcible felony, willful injury causing serious injury, and assault while participating in a felony resulting in serious injury. Following a jury trial later that year, Pena was convicted of each of the five charges.

         At sentencing, the district court determined Pena's convictions for conspiracy to commit a forcible felony and assault while participating in a felony resulting in serious injury merged into other offenses. The court then sentenced Pena on the three remaining charges. The court ordered Pena to serve a twenty-five year sentence for both the burglary conviction and the robbery conviction; Pena was sentenced to a five-year term for the willful-injury conviction. The court ordered the sentences to be served concurrently.

         Pena filed a direct appeal, in which he challenged the district court's denial of his motion for judgment of acquittal and argued trial counsel had provided ineffective assistance by not seeking to sever Pena's trial from that of his co-defendant. After hearing oral argument on the matter, a panel of this court affirmed Pena's conviction, with one judge dissenting on the issue of sufficiency of the evidence. See State v. Pena, 12-0082, 2013 WL 5745608, at *4 (Iowa Ct. App. Oct. 23, 2013).

         Pena filed his first application for PCR in August 2015 before later filing two amended applications. When the matter initially came on for hearing, in October 2016, Pena had seventeen claims to be adjudicated by the PCR court. After a second day of hearing-in February 2017-the PCR court issued a written ruling finding Pena had failed to establish that he was entitled to relief on any of his claims.

         Pena appeals.

         II. Underlying Facts.

The following is our recitation of facts from Pena's direct appeal:
On January 17, 2011, at 10:00 p.m., three men broke into a residence occupied by four residents, including Nikolas Bender. Bender had been selling powder cocaine from the residence since November 2010. He had sold to five different customers, but only two of those customers, one of which was Pena, were allowed to pick up drugs at the residence. Those two customers would knock at the back door and be taken by Bender to his basement bedroom where he kept the drugs in a safe. Strangers usually used the front door, and only friends and the drug buyers used the back door. Bender had retrieved drugs from the safe in Pena's presence a couple of weeks before the break-in.
At about 3:00 p.m. on the day of the break-in, Pena had contacted Bender about purchasing a large amount of powder cocaine, and they had agreed on a sale of the amount specified for $700. Pena said he would get back to Bender later in the evening. Pena's prior purchases had been for smaller amounts in the forty-to-seventy dollar price range. About two weeks prior to the purchase Pena's girlfriend overheard a conversation between Pena and another male that mentioned the Bender residence. When she asked what was going on he said they "would be in a lot of money soon." Also, two-to-four weeks prior to the incident Pena told other occupants of the residence that they should be careful that "in this neck of the woods people get robbed every day."
Eventually all of the perpetrators donned face coverings of some sort. Initially one of them, Bobby Thompson, was not masked and was recognized by Bender. On the date of the break-in, Pena and Thompson spoke by telephone twelve times in the hours before the robbery, none during the time frame of the actual break-in, and eight times in the three hours after the robbery. They had communicated by telephone seven times on January 14 and January 16.
Thompson initiated the entry by approaching the back door of the residence and asking Bender if he could use his telephone. Thompson was accompanied by two others, one of [whom] was subsequently identified as Albert Butler. Neither Thompson nor Butler had ever been to the residence previously. Bender noticed that one of the two men accompanying Thompson had a gun. He retreated into the residence, but the perpetrators were able to keep the door from closing and made entry into the premises. The residents handed over wallets and telephones at the demand of the perpetrators to empty their pockets. It was obvious the perpetrators were not interested in general property items. Thompson stated "that's not what we came for" and demanded to know "where is it at?"
The one carrying a duffel bag led Thompson to the basement and on their return asked for the combination to the safe. The duffel-bag carrier identified Bender as the owner of the safe, and Thompson proceeded to escort him to the basement, but a scuffle ensued. Bender yelled to another occupant, who had remained on the second story, to call the police. During the struggle the third intruder shot Bender in the leg. All three of the intruders left immediately through the back door.
Neither Thompson nor the third perpetrator, Albert Butler, had ever been to Bender's residence before. Pena made no attempt to contact Bender to finalize the $700 purchase that had been negotiated or for any other reason after the incident. The other purchaser who had been to Bender's basement residence did try to contact Bender after the incident. To the extent anyone was able to describe the duffel-bag carrier, there was general agreement that he was of the same race as Pena, fairly good sized, wore dark clothes, and his face was covered. There was no positive identification of Pena as one of the intruders by the victims. Thompson and Pena were tried together.
At the close of the State's evidence, Pena moved for a judgment of acquittal on the grounds that there was a lack of sufficient evidence to establish that he was a[t] the scene of the break-in or in any way connected with it. The motion was denied, and the jury convicted Pena of all charges.

Id. at *1-2.

         III. Standard of Review.

         Generally, we review PCR proceedings for correction of errors at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). "However, when the applicant asserts claims of constitutional nature, our review is de novo." Id. Thus, we review claims of ineffective assistance-which have their basis in the Sixth Amendment-de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). That being said, we give weight to the PCR court's findings concerning witness credibility. Ledezma, 626 N.W.2d at 141.

         IV. Discussion.

         To prevail on his claims of ineffective assistance, Pena "must satisfy the Strickland test by showing '(1) counsel failed to perform an essential duty; and (2) prejudice resulted.'" State v. Clay, 824 N.W.2d 488, 495 (Iowa 2012) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Under the first prong, we presume the attorney performed his or her duties competently and "[w]e do not find such a breach by second-guessing or making hindsight evaluations." Id. In determining whether an essential duty was breached, "we measure . . . counsel's performance 'objectively by determining whether [it] was reasonable, under prevailing professional norms, considering all the circumstances.'" Id. (alteration in original) (quoting State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010)). Under the second prong, Pena must prove by a preponderance of the evidence "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ledezma, 626 N.W.2d at 143 (citation omitted). "In determining whether this standard has been met, we must consider the totality of the evidence, what factual findings would have been affected by counsel's errors, and whether the effect was pervasive or isolated and trivial." Clay, 824 N.W.2d at 496 (citation omitted). "Improvident trial strategy, miscalculated tactics, and mistakes in judgment do not necessarily amount to ineffective assistance of counsel." State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

         A. Trial Counsel.

         Right to Testify.

         Pena alleges trial counsel failed to inform him of his right to testify or to advise him he should do so. He claims he was prejudiced because his testimony was the only evidence that he was at home the night of the incident.

         At the PCR hearing, Pena testified that though he remembered telling the district court he was not going to be testifying as part of his and the trial attorney's "strategies regarding the case, " the statement was false. According to Pena, they "never even discussed the strategies. She just did what she wanted." He also claimed his trial attorney never gave him any advice about whether he should testify and that, in fact, at the time of his trial, he did not understand what the word "testify" meant. In contrast, at the PCR hearing, Pena's trial attorney testified that her "general rule" about whether her criminal clients testify in their own defense is that "it's their decision." When asked what she considers before advising defendants whether she thinks it is in their best interest to testify, she responded:

Well, I look at the background. I look at whether or not they've been involved with the criminal justice system or they have a record, if you will. I look at whether or not they can testify in a believable manner, look at their demeanor. I look at the State's case and make some judgment calls on whether or not it's even necessary for the testimony if the State has not really made a plausible case in the first place.

         Specifically regarding Pena's case, she testified:

Mr. Pena did not have a criminal record. That was very much to his credit. His problem was his involvement with the victim in this case, Nikolas Bender. I told him the choice was his; however, if he had taken the stand, he would have had to admit such things as he had been involved in drug transactions with Mr. Bender and that he, in fact, was involved with making arrangements for a drug deal the night of the incident, and I advised him that ...

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