from the Iowa District Court for Black Hawk County, David P.
Wanchanic appeals his conviction, following a jury trial, of
first-degree robbery and the sentence imposed.
CONVICTION AFFIRMED, SENTENCE AFFIRMED IN PART AND
VACATED IN PART, AND REMANDED FOR ENTRY OF A CORRECTED
C. Smith, State Appellate Defender, and Mary K. Conroy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Zachary Miller, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
Wanchanic appeals his conviction, following a jury
trial, of first-degree robbery and the sentence imposed. He
contends his trial counsel was ineffective in failing to move
for a mistrial. He further challenges the district
court's order assessing appellate attorney fees against
him unless he filed a request for a hearing on his reasonable
ability to pay.
Background Facts and Proceedings
case arises out of a 2015 cellular phone retail store
robbery. Wanchanic was charged by trial information with one
count of robbery in the first degree. See Iowa Code
§§ 711.1, .2 (2015). Wanchanic filed a motion in
limine the morning of December 12, 2017, prior to the
commencement of trial later that same day. Wanchanic sought
to prevent specific items of evidence, including any evidence
that was not referenced in the filed minutes of evidence.
After voir dire but before opening statements, the court
granted the motion with no objection from the State. During
the testimony of a witness who drove Wanchanic to the store
before the robbery, the witness was asked if she saw
Wanchanic with any type of object after he left the car. The
State asked, "And when you looked at [Wanchanic], what
did you see?" The witness replied, "He had
everything covered, and he was switching something like a
knife to the front." At that point, defense counsel
asked to approach the bench, and an unreported sidebar
conference occurred. The court then removed the jury and took
a half-hour break. The court then resumed the proceedings
outside the jury's presence. The State, after reviewing
the minutes of evidence, conceded that the witness's
testimony about the presence of a knife was not contained in
the minutes. Defense counsel asked the court just to strike
the witness's last response from the record and admonish
the jury to disregard it. When admonishing the jury, the
court stated "[m]embers of the jury, the testimony you
heard from the witness concerning the knife should be
disregarded, and that testimony is stricken from the
record." Defense counsel made no other request and the
trial continued. Jury deliberation began in the afternoon of
December 14. The jury found Wanchanic guilty as charged the
next day. Wanchanic filed post-trial motions on other issues
but did not reference the witness-testimony issue. The court
subsequently sentenced Wanchanic to an indeterminate term of
incarceration not to exceed twenty-five years, with a
mandatory minimum of seventy percent. Wanchanic appeals.
Ineffective Assistance of Counsel
first argues his trial counsel provided ineffective
assistance in failing to move for a mistrial after the State
elicited witness testimony not included in the minutes of
evidence. Alternatively, he contends trial counsel should
have moved for a mistrial after the court, in its
admonishment, referenced the witness testimony it was
striking from the record and directing the jury to disregard.
review ineffective-assistance-of-counsel claims de novo.
State v. Harrison, 914 N.W.2d 178, 187 (Iowa 2018).
"Generally, claims of ineffective assistance of counsel
are preserved for postconviction relief proceedings."
Id. at 206 (quoting State v. Soboroff, 798
N.W.2d 1, 8 (Iowa 2011)). Preservation allows for the
development of "an adequate record of the claims and
provides the attorney charged with ineffective assistance
with the 'opportunity to respond to defendant's
claims.'" Id. (quoting Soboroff,
798 N.W.2d at 8). If we find the record adequate, "we
may resolve the claim on direct appeal." Id.
(quoting Soboroff, 798 N.W.2d at 8). Wanchanic must
show his defense counsel "failed an essential duty and
that the failure resulted in prejudice." Id.
(quoting State v. Schlitter, 881 N.W.2d 380, 388
(Iowa 2016)). We "presume the attorney performed
competently, requiring [Wanchanic] to rebut the presumption
with evidence the attorney performed outside the standard of
a reasonably competent practitioner."
Schlitter, 881 N.W.2d at 388. Further, Wanchanic
must "show the attorney's errors functionally
deprived [him] of a fair trial and further show by a
reasonable probability that the result of the proceeding
would have been different without the errors by the
attorney." Id. "A defendant's
inability to prove either element is fatal." State
v. Graves, 668 N.W.2d 860, 869 (Iowa 2003).
on the record before us, we cannot determine why counsel did
not move for a mistrial after the witness testimony. Further,
we cannot determine why counsel did not object to or move for
a mistrial after the court referenced the knife when
admonishing the jury to disregard the witness's testimony
about the knife. Therefore, we cannot determine if
counsel's performance fell below the standard of a
reasonably competent counsel or if prejudice ...