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Thorndike v. State

Court of Appeals of Iowa

September 12, 2018

MAX THORNDIKE, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.

         Applicant appeals from the denial of his application for postconviction relief.

          Sharon D. Hallstoos of Hallstoos Law Office, Dubuque, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee State.

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

          BOWER, Judge.

         Max Thorndike appeals the dismissal of his application for postconviction relief (PCR). He argues he was provided with ineffective assistance of counsel during his trial, appeal, and PCR hearing. We find trial counsel was not ineffective, and therefore neither were appellate or PCR counsel. We affirm the district court.

         I. Background Facts & Proceedings

         In 2013, Thorndike was convicted of second-degree sexual abuse and lascivious acts with a child, and we affirmed his conviction. See State v. Thorndike, 860 N.W.2d 316 (Iowa 2015). Thorndike filed a pro se application for PCR on May 18, 2015, which counsel later recast.[1] In his third amended application, Thorndike claimed ineffective assistance based on trial counsel's failure to elicit testimony from two witnesses in his defense.

         On appeal, Thorndike asserts a new theory of trial counsel's ineffective assistance based on failure to object to prosecutorial misconduct in closing arguments. Thorndike also claims counsel on direct appeal and PCR counsel were ineffective for failing to raise the issue of trial counsel's ineffective assistance.

         II. Standard of Review

         Generally, we review PCR proceedings for errors at law. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). Claims of ineffective assistance of counsel are reviewed de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). To establish an ineffective-assistance-of-counsel claim based on prosecutorial misconduct, the defendant must establish proof of misconduct and the misconduct resulted in prejudice denying the defendant of a fair trial. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003).

         III. Error Preservation

         "It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal." Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). No claim of prosecutorial misconduct or prosecutorial error was raised, discussed, or decided below, leaving us with no relevant record aside from the trial transcript. However, our supreme court has opted to take a pragmatic approach to consider issues raised on appeal from PCR proceedings, if possible. See Hannan ...


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