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Mullen v. State

Court of Appeals of Iowa

February 6, 2019

JOSHUA JAMES MULLEN, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

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

         Joshua Mullen appeals the denial of his application for postconviction relief. AFFIRMED.

          Drew H. Kouris, Council Bluffs, for appellant.

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

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

          MULLINS, JUDGE.

         Joshua Mullen appeals the denial of his application for postconviction relief (PCR). He contends the district court erred in denying him relief on his claims his trial counsel rendered ineffective assistance in (1) failing to withdraw due to a conflict of interest and (2) allowing him to plead guilty.

         I. Background Facts and Proceedings

         The minutes of evidence reflect that on August 27, 2013, law enforcement, pursuant to information received from confidential informants, executed a search warrant on Mullen's residence, which is situated within 1000 feet of a public park, and located "a psilocybin mushroom grow," methamphetamine, and "33 containers . . . that appeared to contain psilocybin mushroom." As to the mushroom-grow operation, officers found a "large plastic tub that had actual mushrooms growing," a "plate of harvested mushrooms," and "numerous items . . . commonly used in a psilocybin mushroom grow." Firearms were also found in the residence. Mullen was a convicted felon.

         On October 3, Mullen was charged by trial information with manufacturing a controlled substance within 1000 feet of certain real property as a second or subsequent offender, [1] possession of methamphetamine as a third or subsequent offense, [2] and thirty-three counts of failure to affix a drug-tax stamp.[3] The minutes of evidence were filed contemporaneously with the trial information.

         In June 2014, additional minutes of evidence were filed concerning the State crime lab's analysis of the items found in Mullen's home. The lab report notes three items were submitted for analysis: (1) mushrooms contained in jars inside of a tub, (2) other mushrooms described as purported psilocybin mushrooms, and (3) "residue." Analysis of these items revealed "no controlled substance found" as to item one, item two was 6.63 grams of "psilocyn," and item three was methamphetamine.

         At a hearing on July 21, the parties advised the court a plea agreement had been reached under which Mullen would plead guilty to the manufacturing charge in return for the State's amendment of that charge to exclude the certain-real-property enhancement; the dismissal of all remaining charges; and the State's recommendation for a suspended sentence, probation, and placement at a residential correctional facility. Defense counsel and Mullen stated their agreement to the terms. Upon inquiry from the court, Mullen acknowledged he reviewed the trial information and minutes of evidence and understood them, the information they contained was accurate, and no threats or promises were made to him in return for his guilty plea, aside from the plea agreement. Following a plea colloquy, Mullen pled guilty, and the court accepted the plea. Mullen requested immediate sentencing. After advising Mullen of his rights to be sentenced at a later date and the preparation of a presentence-investigation report, his obligation to file a motion in arrest of judgment to challenge the adequacy of his plea for any reason, and the impossibility to do so if he requested immediate sentencing, the court sentenced Mullen in accordance with the plea agreement. Mullen's probation was subsequently revoked, and he was sent to prison. In May 2016, Mullen filed a PCR application raising various claims. Following a trial, the court denied the application. As noted, Mullen appeals.

         II. Standard of Review

         Appellate review of PCR proceedings is typically for correction of errors at law, but where claims of ineffective assistance of counsel are forwarded, our review is de novo. See Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017). Because Mullen's claims concern the effectiveness of trial counsel, he must prove by a preponderance of the evidence that (1) his counsel failed to perform an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018). We "may consider either the prejudice prong or breach of duty first, and ...


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