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Becker v. State

Court of Appeals of Iowa

June 20, 2018

MARK D. BECKER, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Butler County, Gregg R. Rosenbladt, Judge.

         Mark Becker appeals the district court's denial of his application for postconviction relief.

          Richard R. Hollis, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Darrel L. Mullins and Scott D. Brown, Assistant Attorneys General, for appellee State.

          Considered by Vogel, P.J., and Doyle and Bower, JJ.

          BOWER, Judge.

         Mark Becker appeals the district court's denial of his application for postconviction relief (PCR). Becker claims trial counsel was ineffective for failing to file a motion for change of venue. He also claims postconviction counsel was ineffective for failing to present evidence of pretrial publicity or introduce trial counsel's file regarding pretrial publicity. Finally, Becker claims both trial and postconviction counsel were ineffective for failing to challenge the amount of restitution.[1] We find trial counsel was effective but preserve Becker's claim that PCR counsel was ineffective for further hearing.

         I. Background Facts and Proceedings

         Becker suffered from paranoid schizophrenia and had instances of violent behavior when not properly medicated. On June 24, 2009, Becker shot and killed Ed Thomas in front of numerous witnesses. Trial counsel pursued an insanity defense, realizing the evidence of the murder itself was overwhelming.

         Because of Thomas's standing in the community there were concerns regarding pretrial publicity. The State made a conditional motion for change of venue in the event the county was so prejudiced as to create a substantial likelihood the trial would not be fair and impartial, which trial counsel did not resist. Venue was not changed, and a jury was selected. Becker was found guilty on March 2, 2010.

         Becker appealed, but his conviction was affirmed both by our court and our supreme court. See State v. Becker, 818 N.W.2d 135, 163 (Iowa 2012) (overruled on other grounds by Alcala v. Marriott Int'l Inc., 880 N.W.2d 699, 708 (Iowa 2016)); see also State v. Becker, No. 10-0631, 2011 WL 3925431, at *8, *10 (Iowa Ct. App. Sept. 8, 2011). Becker then filed an application for postconviction relief August 7, 2015. The application was denied by the district court and Becker now appeals.

         II. Standard of Review

         "The 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 attorney performed deficiently." Id. Both elements must be proved by a preponderance of the evidence. Jones v. State, 479 N.W.2d 265, 272 (Iowa 1991).

         Becker asks us to establish a rule that violation of Iowa Rule of Professional Conduct 32.1.1, regarding competent representation, should be considered a breach of duty, and therefore ineffective assistance of counsel, which would satisfy the first element of the test. However, our supreme court has found "an ethical violation [does not] always mean that ineffective assistance has [ ] ...


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