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Weiss v. State

Court of Appeals of Iowa

December 19, 2018

MICHAEL SCOTT WEISS, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Pottawattamie County, James S. Heckerman, Judge.

         Michael Weiss appeals the denial of his application for postconviction relief.

          Katherine Kaminsky Murphy of Kate Murphy Law, PLC, Glenwood, for appellant.

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

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

          DANILSON, Chief Judge.

         Michael Weiss appeals the denial of his application for postconviction relief (PCR), asserting his plea counsel provided constitutionally defective representation. Weiss failed to prove counsel breached an essential duty and prejudice resulted. Therefore, we affirm the denial of his PCR application.

         Weiss was charged with three counts of sexual abuse in the second degree after A.A., age eight or nine years old, told her older brother that Weiss had made her "milk" his "dick" more than once and that he had tried to get her to kiss it. She wanted Weiss to stop. Her brother did not immediately tell anyone because A.A. did not want to get in trouble. However, after some time, her brother informed their parents. The parents contacted law enforcement. On August 2, 2015, a police report includes the following:

On August 2, 2015, I Deputy Ryan Olderog 78-56, was working patrol for the Pottawattamie County Sheriff's Office. At 1518 hours I went en route to XXX for a sexual assault call. The narrative from this call read:
"CALLER ADV HER 9 YOA DAUGHTER IS TELLING HER THAT A MONTH AGO A EMPLOYEE THAT WORKS FOR THE FARMER THAT FARMS THE LAND AROUND THEM HAD THE DAUGHTER SIT ON HIS LAP AND STATED-SEE WHAT YOU DO TO ME-THAN HE STOOD UP WITH [H]IS PANTS UNZIPPED WITH HIS PENIS HANGING OUT SAYING TO HER DAUGHTER- COME ON YOU NEED TO MILK IT-SUSP NOT ON LOC."

A.A. was interviewed at Project Harmony by a sexual-abuse investigator, which was recorded. Weiss's trial counsel, Jennifer Solberg, was provided the State's file. Solberg took A.A.'s pre-trial deposition.

         In a letter, Solberg recommended Weiss accept the State's final plea offer. Solberg informed Weiss she believed a jury would find A.A. credible and Weiss would likely be convicted. She wrote:

Each count is a [twenty-five] year prison sentence with a mandatory [seventeen and one half] to serve before you are eligible for parole. A judge may or may not run the sentences consecutive to each other. Due to the risk of loss at ...

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