Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Herrarte

Court of Appeals of Iowa

September 12, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
JOEL ENRIQUE HERRARTE JR., Defendant-Appellant.

          Appeal from the Iowa District Court for Wapello County, Shawn R. Showers, Judge.

         The defendant appeals his convictions and sentences for kidnapping in the third degree, assault while participating in a felony, and willful injury causing bodily injury.

          Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Bower and McDonald, JJ.

          POTTERFIELD, Presiding Judge.

         Joel Herrarte Jr. was originally charged by trial information with kidnapping in the second degree (count I), assault while participating in a felony (count II), and willful injury causing bodily injury (count III). After a trial to the bench, the court found Herrarte guilty of counts II and III. The court acquitted Herrarte of second-degree kidnapping but found Herrarte guilty of the "lesser-included" offense of third-degree kidnapping. Herrarte was sentenced to a ten-year sentence for kidnapping in the third degree, a five-year sentence for count II, and a five-year sentence for count III. The court ordered Herrarte to serve the three sentences consecutively. He appeals.

         I. Kidnapping Conviction.

         Herrarte maintains the district court erred in its determination that third-degree kidnapping is a lesser-included offense of second-degree kidnapping. He asserts that we must vacate his conviction for third-degree kidnapping because of the error.

         Herrarte did not preserve error on this issue. He did not object to the court's reliance on kidnapping in the third degree as a lesser-included offense. See State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988) ("Failure to timely object to an instruction not only waives the right to assert error on appeal, but also 'the instruction, right or wrong, becomes the law of the case.'" (citation omitted)). And in fact, he argued in his closing argument, "If the arguments advanced by the State and the defendant both have merit then clearly reasonable doubt does exist and the defendant should only be found guilty of the lesser included offense of kidnapping in the third degree." (altered for readability). See State v. Sage, 162 N.W.2d 502, 504 (Iowa 1968) ("A party to a criminal proceeding cannot assume inconsistent positions in the trial and appellate courts and, as a general rule, will not be permitted to allege an error in which he himself acquiesced, or which was committed or invited by him." (citation omitted)).

         However, Herrarte can and does raise the claim under the ineffective-assistance-of-counsel framework, as such "claims are not bound by traditional error-preservation rules." See State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006). Rather, they "are an exception to normal error-preservation rules and the 'law of the case' doctrine." Id.

         To succeed on a claim of ineffective assistance, Herrarte has the burden to establish by a preponderance of the evidence that (1) his trial counsel failed to perform an essential duty and (2) prejudice resulted. Id. His claim fails if he is unable to prove either element. Id.

         The State is adamant Herrarte's counsel made a strategic decision to urge the court to that kidnapping in the third degree (based on the intent to seriously injure the victim) was a lesser-included crime of kidnapping in the second degree (based on the intent to hold the victim for ransom). Compare Iowa Code §§ 710.1(3), 710.4 (2016), with Iowa Code § 710.3(1). The State asserts it was a reasonable tactical decision not to seek outright acquittal on the kidnapping charge when the kidnapping evidence was so strong. It is possible counsel made a strategic choice to pursue an incorrect legal argument regarding the lesser-included offense, but "we cannot automatically assume every alleged misstep was a reasonable strategy simply because some lawyer, somewhere, somehow, under some circumstances at some time would have done such a thing." Ondayog, 722 N.W.2d at 786. Based on the record before us, we cannot ascertain what motivated counsel's argument.

         When the record leaves a question as to whether an action-or inaction- by counsel was a matter of strategy, we preserve the claim for possible postconviction relief. See State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015) ("We prefer to reserve such questions for postconviction proceedings so the defendant's trial counsel can defend against the charge." (citation omitted)). Thus, we preserve Herrarte's claim for possible postconviction-relief proceedings. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010) ("If . . . the court determines the claim cannot be addressed on appeal, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.