from the Iowa District Court for Appanoose County, Joel D.
appeals his conviction for burglary in the third degree.
Warren Conrad, Knoxville, for appellant.
J. Miller, Attorney General, and Darrel Mullins, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., Tabor, J., and Scott, S.J.
Fisher appeals his conviction for burglary in the third
degree. We find Fisher's claims of ineffective assistance
of counsel should be preserved for possible
postconviction-relief proceedings because the present record
is not adequate to address these issues on direct appeal. We
affirm Fisher's conviction.
31, 2016, at about 10:00 p.m., James Milani was driving by a
machine shed at Milani Farms, where he was employed, and saw
a light was on, the door was open, and a pickup was parked by
the building. Milani stopped his vehicle, but, before he
could get out, three people "moved quickly" from
the machine shed and got into the pickup. The vehicle drove
passed him, and Milani saw the driver; he stated he
recognized the person but did not know his name. Milani
called 911. He described the vehicle as a maroon Ford 150
pickup with dual exhaust pipes. No items were taken from the
machine shed, but some tools and equipment had been piled by
a few days, Deputy Jonathon Printy saw a vehicle matching the
description given by Milani. The vehicle was registered to
Fisher. Deputy Harold Burke sent Milani a picture of the
vehicle and a picture of Fisher. Milani also saw the pickup
in the parking lot for Carter-Miller Services, which provided
garbage-removal services for Milani Farms. He identified the
vehicle as the one he saw on May 31. Milani stated one of the
tail pipes was bent, which matched his recollection of the
pickup. Additionally, Milani identified Fisher from the
photograph. Fisher was employed as a garbage truck driver for
Carter-Miller Services, and Milani Farms was on his route.
Milani stated he previously saw Fisher when he was picking up
garbage at Milani Farms.
was charged with burglary in the third degree, in violation
of Iowa Code section 713.6A(1) (2016). At the jury trial,
Fisher testified he did not commit the burglary. He stated he
went to bed early that evening because he needed to get up at
4:00 a.m. the next day. He stated he did not have a bent
tailpipe but one of the tailpipes hung down a little farther
than the other. Fisher stated he was disabled. He presented
evidence the burglary could have been committed by a
different person who had a similar pickup. The other pickup,
however, had a different hood, a silver stripe, and custom
jury found Fisher guilty of third-degree burglary. The
district court denied his motion for a new trial. Fisher was
sentenced to a term of imprisonment not to exceed five years,
the sentence was suspended, and he was placed on probation.
now appeals, claiming he received ineffective assistance of
counsel. Fisher claims he received ineffective assistance
because defense counsel did not (1) file notice of an alibi
defense; (2) object to the photographic identification on the
basis of due process; and (3) file a motion for change of
conduct a de novo review of claims of ineffective assistance
of counsel. State v. Maxwell, 743 N.W.2d 185, 195
(Iowa 2008). To establish a claim of ineffective assistance
of counsel, a defendant must prove (1) counsel failed to
perform an essential duty and (2) prejudice resulted to the
extent it denied the defendant a fair trial. Id. A
defendant's failure to prove either element by a
preponderance of the evidence is fatal to a claim of
ineffective assistance. See State v. Polly, 657
N.W.2d 462, 465 (Iowa 2003).
we preserve claims of ineffective assistance of counsel for
postconviction-relief proceedings. State v. McNeal,
867 N.W.2d 91, 105 (Iowa 2015). We will address claims of
ineffective assistance on direct appeal only when the record
is adequate. Id. at 106. "We prefer to reserve
such questions for postconviction proceedings so the
defendant's trial counsel can defend against the
charge." Id. at 105 (quoting State v.
Tate, 710 N.W.2d 237, 240 (Iowa 2006)). "This is
especially appropriate when the challenged actions concern
trial strategy or tactics counsel could explain if a record
were fully developed to address those issues."
Id. at 105-06. "It is a rare case in which the
trial record alone is sufficient to resolve a claim on direct
appeal." Id. at 106 (citing State v.
Straw, 709 N.W.2d 128, 133 (Iowa 2006)).
Fisher's claims of ineffective assistance of counsel
should be preserved for possible postconviction-relief
proceedings. The present record is not adequate for us to
address his claims defense counsel should have filed notice
of an alibi defense, objected to the photographic
identification, and filed a motion for change of venue. ...