from the Iowa District Court for Polk County, Arthur E.
applicant appeals the dismissal of his application for
Dickey of Dickey & Campbell Law Firm, PLC, Des Moines,
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee State.
Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.
S.J., takes no part.
Beloved was convicted of two counts of second-degree sexual
abuse, in violation of Iowa Code sections 709.1 and 709.3(2)
(2011), for his sexual contact with a child under the age of
twelve over the course of two years. This court affirmed his
convictions on direct appeal. See State v. Beloved,
No. 14-1796, 2015 WL 8390222, at *1 (Iowa Ct. App. Dec. 9,
2015). Beloved then filed an application for postconviction
relief (PCR) raising twenty-three claims of ineffective
assistance. The PCR court dismissed Beloved's
application, and Beloved now appeals the PCR court's
dismissal of several of his ineffective-assistance claims
relating to his trial counsel.
Scope and Standard of Review
PCR dismissals are generally reviewed for correction of legal
error, we review ineffective-assistance claims de novo due to
their constitutional nature. See Ledezma v. State,
626 N.W.2d 134, 141 (Iowa 2001).
To prevail on a claim of ineffective assistance of counsel,
the applicant must demonstrate both ineffective assistance
and prejudice. Both elements must be proven by a
preponderance of the evidence. However, both elements do not
always need to be addressed. If the claim lacks prejudice, it
can be decided on that ground alone without deciding whether
the attorney performed deficiently.
Id. at 142 (citations omitted). We will conclude
counsel provided ineffective assistance when an applicant
demonstrates by a preponderance of the evidence that counsel
failed to perform an essential duty. See State v.
Thorndike, 860 N.W.2d 316, 320 (Iowa 2015). To do so,
the applicant must demonstrate counsel's performance fell
"below the standard demanded of a 'reasonably
competent attorney.'" Lamasters v. State,
821 N.W.2d 856, 866 (Iowa 2012) (citation omitted). We
presume counsel performed competently and "proceed to an
individualized fact-based analysis" to either confirm or
reject this presumption. See id. "[I]neffective
assistance is more likely to be established when the alleged
actions or inactions of counsel are attributed to a lack of
diligence as opposed to the exercise of judgment."
Id. (citation omitted). "Improvident trial
strategy, miscalculated tactics or mistakes in judgment do
not necessarily amount to ineffective counsel." Kane
v. State, 436 N.W.2d 624, 627 (Iowa 1989). "When
counsel makes a reasonable tactical decision, this court will
not engage in second-guessing." Lamasters, 821
N.W.2d at 856 (citation omitted). To establish the level of
prejudice warranting relief, the applicant must show
"there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different."
Thorndike, 860 N.W.2d at 320 (quoting Strickland
v. Washington, 466 U.S. 668, 694 (1984)).
first note Beloved quarrels with the district court's
refusal to apply "a less deferential standard" of
prejudice under the Iowa Constitution than that provided for
under the federal ineffective-assistance framework. However,
our courts have long followed the federal framework,
including its prejudice standard, when considering
ineffective-assistance claims under both the federal and
state constitutions. See, e.g., King v.
State, 797 N.W.2d 565, 574-76, 576 n.3 (Iowa 2013)
(determining PCR applicant's claim did not entitle him to
relief because he failed to meet the federal standard for
prejudice and reaching that "result under the Sixth
Amendment of the United States Constitution and independently
under article I, section 10 of the Iowa Constitution");
see also Brown v. State, No. 17-0030, 2018 WL
4922941, at *1 (Iowa Ct. App. Oct. 10, 2018) (concluding
ineffective-assistance claims asserting violations under the
state constitution are reviewed using the same standard as
the federal standard). It was not for the PCR court to
complete an independent and more lenient
ineffective-assistance analysis than that already established
by our supreme court. See State v. Miller, 841
N.W.2d 583, 584 n.1 (Iowa 2014) (noting the district court
properly followed supreme court precedent and noting the
supreme court should be the court to diverge from established
principles). Likewise, it is also not for this court to
diverge from the supreme court precedent, and we will apply
Strickland prejudice to Beloved's claims.
See id. (noting it is proper for this court to apply
precedent and leave any change to the supreme court);
King, 797 N.W.2d at 574-76, 576 n.3 (applying
Strickland prejudice to state constitutional claim).
Variance Between Trial Information and Jury Instructions
consider the substance of Beloved's
ineffective-assistance claims. Beloved first takes issue with
his trial counsel's failure to address inconsistences
between the trial information and the jury instructions. The
State charged Beloved with four counts of sexual
abuse. In the trial information, count II alleged
Beloved committed sexual abuse when he "used his hands
to touch [the child]'s vaginal area and his mouth to
touch her breasts," and count IV alleged he committed
sexual abuse when he "used his penis to touch her
vaginal area." By the end of trial, the court, the
attorneys, and the jury instructions transposed count II and
count IV. Beloved argues counsel was ineffective in failing
to alert the court to this error. He makes two specific
claims; first, he claims he received ineffective assistance
when counsel motioned for judgment of acquittal on count II
and cited to facts relevant to count IV of the trial
information (contact between Beloved's penis and the
child's vaginal area), which was presented as count II in
the jury instructions. Had counsel brought the differing
numbering of the counts between the trial information and
jury instructions to the court's attention by referring
to count IV instead of count II in the motion, the court
simply would have relabeled the instructions and
proceeded. Assuming counsel breached an essential
duty, Beloved's claim fails because he cannot establish
Strickland prejudice-the outcome of the proceeding
would have remained the same absent the breach, Beloved would
have been convicted on two counts of sexual abuse.
also claims counsel's failure to object to the
inconsistent numbering of the counts resulted in a fatal
variance between the trial information and count IV as
presented at trial. A fatal variance occurs when the State
specifies a manner of committing the charged offense in the
trial information but presents evidence of a different manner
of committing the charged offense at trial. See State v.
Grice, 515 N.W.2d 20, 22-23 (Iowa 1994). The State is
required to prove an offense at trial in the same manner
specified in the charging ...