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Beloved v. State

Court of Appeals of Iowa

March 20, 2019

JEAN BELOVED, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.

         An applicant appeals the dismissal of his application for postconviction relief.

          Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.

          Thomas 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. [*] Gamble, S.J., takes no part.

          MAHAN, Senior Judge.

         Jean 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.

         I. Scope and Standard of Review

         Although 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)).

         We 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, [1]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).

         II. Analysis

         A. Variance Between Trial Information and Jury Instructions

         We now 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.[2] 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.[3] 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.

         Beloved 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 ...

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