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.

Swan v. State

Court of Appeals of Iowa

December 19, 2018

JUSTIN WILLIS SWAN, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Dubuque County, Monica Wittig, Judge.

         Justin Swan appeals the denial of his application for postconviction relief.

          Thomas M. McIntee, Waterloo, for appellant.

          Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant Attorney General, for appellee State.

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

          MULLINS, JUDGE.

         Justin Swan appeals the denial of his application for postconviction relief (PCR). He contends the PCR court failed to comply with Iowa Code section 822.7 (2009) by failing to enter necessary findings and conclusions relating to each of the issues he presented for relief. Further, he challenges the seventy percent mandatory minimum sentence as cruel and unusual punishment. Finally, Swan makes several claims of ineffective assistance against both his trial and PCR counsel.

         I. Background Facts and Proceedings

         This case arises out of a 2009 convenience store armed robbery in Dubuque. Swan was charged with robbery in the first degree. See Iowa Code §§ 711.1, 711.2. A jury found Swan guilty and the court sentenced Swan to a term of incarceration not to exceed twenty-five years with a mandatory minimum of seventy percent for the robbery offense, pursuant to Iowa Code section 902.12(5).[1]On direct appeal, the supreme court affirmed Swan's conviction.[2]

         Swan filed a pro se PCR application in which he claimed his trial counsel was ineffective, DNA testing was performed on contaminated evidence, illegal interrogations were conducted leading to coerced confessions, and the media publicized false and suppressed information yet a change in venue was not granted. After the court appointed Swan counsel, he amended his petition to allege his sentence of incarceration in the amount of twenty-five years with a seventy-percent mandatory minimum was cruel and unusual punishment as applied to him and because his culpability is grossly disproportionate to the imposed sentence. He also claimed his due process rights were violated because of statements made by the State in its closing argument which Swan argues were not supported by the evidence and materially prejudiced him.

         The State resisted the application and moved for summary disposition, contending there were no issues of material fact in dispute. The court initially scheduled a hearing but cancelled it on Swan's request in order to allow time for discovery. After several continuances and substitutions of Swan's PCR counsel, the State filed an amended motion for summary disposition, further articulating that there were no issues of material fact in dispute and if there were any violations, they would be harmless error. The court scheduled the motion to be heard on the same day as the trial. Ten days before the trial, Swan filed a second amended PCR application, repeating his claims of ineffective assistance of counsel and adding allegations that trial counsel failed to object to testimony regarding a letter Swan wrote in jail in which he described his motivation for the robbery and prosecutorial misconduct for statements made by the prosecutor during closing arguments. Further, he claimed his trial counsel failed to appeal these issues. Lastly, Swan argued the statements made by the prosecutor in her closing argument also violated his due process rights. Swan requested his conviction be vacated and he be granted a new trial.

         On May 26, 2016, the court held an evidentiary trial during which it also considered the State's motion for summary disposition. Swan called no witnesses and the State only called Swan's trial counsel. On May 5, 2017, the court denied and dismissed Swan's application, finding he was not entitled to relief on any ground presented. Swan filed a motion to enlarge or amend pursuant to Iowa Rule of Civil Procedure 1.904(2), asking the court to clarify its order. The court enlarged its order, providing further specific findings on several of Swan's claims. Swan appeals.

         II. Standard of Review

         Generally, we review PCR proceedings for correction of errors at law. See Ruiz v. State, 912 N.W.2d 435, 439 (Iowa 2018). We review ineffective- assistance-of-counsel claims de novo. See id.; Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011) (we still apply a de novo review although applicant "has a statutory, not constitutional right to effective assistance of counsel on postconviction relief"). In order to prove his ineffective-assistance claims, Swan must establish deficient performance and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018). "[T]he court may consider ...


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.