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State v. Dieckmann

Court of Appeals of Iowa

November 21, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
JON ARTHUR DIECKMANN, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.

         Jon Dieckmann appeals his conviction and sentence for attempted burglary in the second degree and possession of burglar's tools.

          Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Vogel and Tabor, JJ.

          VOGEL, Judge.

         Jon Dieckmann appeals his conviction and sentence for attempted burglary in the second degree and possession of burglar's tools. He argues his counsel was ineffective on several grounds and the district court improperly assessed appellate attorney fees. We find his counsel was not ineffective for failing to challenge the sufficiency of the evidence, we preserve his other ineffective-assistance claims, and we find the court did not err in addressing appellate attorney fees. Therefore, we affirm.

         I. Background Facts and Procedure

         On May 15, 2017, Brenda Milam was alone at home with her dog. Her property has a paved walkway leading from the sidewalk to her front door and around the north side of her house. Her property also has a privacy fence that encloses the backyard and abuts the north and south sides of the house. Her fence has gates along the north and south sides that latch from the backyard side. She has "BEWARE OF THE DOG" signs on both gates and the front of her house. For the past four years, her front door has had a sign that says, "Doorbell broke. Please knock." She has a three-season room attached to the rear of her house, with an exterior door secured by an interior hook latch.

         Milam, who was not feeling well, decided to rest on her living room couch and watch television. Shortly after 9:00 a.m., she heard a knock at her front door. Her dog barked at the door, but she decided to ignore it and remained on the couch. Her dog continued barking and growling as it made its way towards the rear of the house. She became alarmed and went to the three-season room, where she saw a man trying to open the exterior door. She could not see "if there was something in his hand, but his hands were pushing on [the] door with the other hand towards the latch." She screamed at him, and he apologized and walked around the south side of the house to the front. He closed the south fence gate behind him, reaching over the gate to latch it shut, and rode away on a bicycle. Milam immediately called the police to report the incident. While talking to the police, she watched the man approach another house before riding out of view.

         At or about 9:14 a.m., Sergeant Andrew Waggoner with the Davenport Police Department responded to Milam's call. Sergeant Waggoner quickly found Dieckmann in the location Milam indicated. Dieckmann "was literally an exact match of" the description Milam provided, including riding a bicycle, wearing no shirt, and carrying a large backpack. He stopped Dieckmann, and Dieckmann explained he was in the neighborhood looking for odd jobs such as lawn mowing and maintenance. He claimed he had just knocked on Milam's front door, noticed a sign telling him to go to the back door, and walked around to the back. When he knocked on the back door, a woman in the house screamed at him so he apologized and left. Officers found several items inside Dieckmann's backpack, including a long metal file, hammer, and work gloves. Sergeant Waggoner testified these items can be used for burglary.

         On June 14, the State filed a trial information charging Dieckmann with burglary in the second degree and possession of burglar's tools. From August 21 to 23, a trial was held. Dieckmann presented testimony from two Davenport residents, who had hired him to perform odd jobs and were satisfied with his work, and testimony from his mother's boyfriend, who said Dieckmann had been working odd jobs and he had loaned Dieckmann the metal file and other tools inside the backpack. The jury found Dieckmann guilty of attempted burglary in the second degree and possession of burglar's tools. Iowa Code §§ 713.6, .7 (2017). On October 12, the district court sentenced him to terms of incarceration not to exceed five years for attempted burglary and two years for possession of burglar's tools, run concurrently, plus suspended fines and other terms. The sentencing order contains the following provision:

The Defendant is advised that if he determines to appeal this ruling, he may be entitled to court-appointed counsel to represent him in an appeal. The Defendant is advised that if he qualifies for court-appointed appellate counsel then he can be assessed the cost of the court-appointed appellate attorney when a claim for such fees is presented to the clerk of court following the appeal. The Defendant is further advised that he may request a hearing on his reasonable ability to pay court-appointed appellate attorney fees within 30 days of the issuance of the procedendo following the appeal. If the Defendant does not file a request for a hearing on the issue ...

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