from the Iowa District Court for Scott County, Thomas G.
applicant appeals from the denial of his application for
postconviction relief. AFFIRMED.
R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for
J. Miller, Attorney General, and Benjamin M. Parrott,
Assistant Attorney General, for appellee State.
by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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 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.
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.
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.
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).
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.
The following is our recitation of facts from Pena's
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
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
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.
Standard of Review.
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.
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).
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.
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.
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 ...