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Dockery v. State

Court of Appeals of Iowa

November 21, 2018

DONALD JOSEPH DOCKERY, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Pottawattamie County, James M. Richardson, Judge.

         Donald Dockery appeals the denial of his application for postconviction relief.

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

          Donald Dockery, Council Bluffs, pro se.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee State.

          Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.

          MULLINS, JUDGE.

         Donald Dockery appeals the denial of his application for postconviction relief (PCR). He contends: (1) his PCR counsel rendered ineffective assistance in not raising plea counsel's failure to challenge the factual bases underlying the crimes of third-degree theft and ongoing criminal conduct and (2) the PCR court erred in denying relief on the claim that plea counsel was ineffective in failing to challenge the factual bases for another component of the theft charges.[1]

         I. Background Facts and Proceedings

         The following facts can be gleaned from the minutes of evidence. Detective Clark of the Council Bluffs Police Department received a report from an individual in the state of Washington that such individual, as consideration for "exotic car parts," wired money to Dockery via Western Union, but he never received the goods. Clark contacted Western Union and obtained documentation concerning the transaction and other transactions in which Dockery was the recipient of funds. The documentation showed the money involved in the transaction with the Washington resident was picked up at a convenience store in Iowa. Staff at the convenience store reported to Clark that Dockery frequently received Western Union funds at the store and he lived just a few blocks away. Clark tracked down Dockery and interviewed him. In the interview, Dockery admitted to "scamming people out of money" so he can survive and advised "he has a way with words and could talk anyone out of just about anything." Upon further investigation, Clark discovered, between May 5 and August 25, 2008, a total of twenty-one transactions occurred involving nineteen different individuals wiring money to Dockery, which Dockery retrieved in Iowa, in expectation of receiving car parts or sports tickets that were ultimately never received.[2] Clark additionally reviewed Dockery's criminal history and found "other cases of fraud." A Nebraska law enforcement agency "sent [Clark] ten separate cases involving Donald Dockery pulling the same scam back in 2002." Clark discovered Dockery "ha[d] been convicted before for this scam in Nebraska." The minutes of evidence note Dockery's prior convictions elevate each theft to theft in the third degree under Iowa Code section 714.2(3) (2008).

         Dockery was charged by trial information with ongoing criminal conduct and twenty counts of third-degree theft. As to the theft charges, the trial information alleged Dockery took "possession or control of the property of another, with the intent to deprive the lawful owner thereof, while having been twice convicted before of theft." In February 2009, Dockery agreed to plead guilty to the ongoing-criminal-conduct charge and five counts of third-degree theft in return for the State's recommendation that he receive consecutive suspended sentences in the amount of twenty-five years for the ongoing-criminal-conduct charge and two years for each of the theft charges and be placed in a residential correctional facility. Dockery stipulated the minutes of testimony contained adequate factual bases for the charges and pled guilty. The court accepted the pleas, Dockery requested immediate sentencing, and the court sentenced him in accordance with the terms of the plea agreement and placed him on probation.[3]

         In June 2009, the district court found Dockery violated the terms of his probation, found him in contempt, and sentenced him to 180 days in jail. In March 2010, the court found Dockery again violated the terms of his probation. The district court revoked Dockery's probation and reinstated his original sentence. Dockery filed a pro se notice of appeal, which the district court treated as a PCR application. See State v. Allen, 402 N.W.2d 438, 441 (Iowa 1987) ("[P]robation revocation can be challenged only by application for postconviction relief and not by direct appeal."). In a later application, Dockery made claims relative to jurisdiction and extradition and additionally argued his transcripts were altered, newly discovered evidence existed, and he received ineffective assistance of counsel. This PCR action was dismissed by the district court in September 2013. Dockery appealed this ruling and additionally instituted a second PCR action while the first was pending on appeal. The district court dismissed the second action, concluding it "is not a new application" and "no new cause of action is stated or new relief requested." Dockery likewise appealed from this ruling.

         In January 2016, this court reversed both dismissals and remanded both PCR matters to the district court for further proceedings. See generally Dockery v. State, No. 14-0101, 2016 WL 351255 (Iowa Ct. App Jan. 27, 2016); Dockery v. State, No. 13-2067, 2016 WL 351251 (Iowa Ct. App. Jan. 27, 2016). Following the issuance of procedendo, the district court consolidated the PCR cases. In March, Dockery filed an amended PCR application. Therein he argued his plea counsel was ineffective in failing to challenge the factual bases underlying his guilty pleas to third-degree theft and his counsel in the revocation proceedings "labored under an impermissible conflict of interest." In September, Dockery filed a pro se amendment to his application repeating his challenges to jurisdiction and extradition and his claim of newly discovered evidence. In March 2017, Dockery added additional claims that the State breached the plea agreement and he did not enjoy the benefit of probation because he was a fugitive during his probationary period. A PCR trial was held in late March, after which the district court rejected each of Dockery's claims and dismissed the PCR application. The district court denied Dockery's subsequent motions for expanded findings and relief. This appeal followed.

         II. ...


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