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Truax v. State

Court of Appeals of Iowa

September 25, 2019

DUSTIN LEE TRUAX, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.

         The applicant appeals from the denial of his application for postconviction relief.

          Kevin Hobbs, West Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee State.

          Considered by Potterfield, P.J., and May and Greer, JJ.

          POTTERFIELD, PRESIDING JUDGE.

         Dustin Truax appeals from the denial of his application for postconviction relief (PCR). In 2012, a jury convicted Truax of two counts of lascivious acts with a child. See Iowa Code § 709.8 (2009). He was later sentenced to serve two consecutive ten-year terms of imprisonment.

         Truax filed a direct appeal, in which his only challenge was the sentence imposed by the district court. See State v. Truax, No. 13-0242, 2014 WL 970034, at *1 (Iowa Ct. App. Mar. 12, 2014). He argued the court failed to give adequate reasons for imposing consecutive sentences. A panel of our court affirmed the sentence, and procedendo issued in June 2014.

         Truax filed his PCR application in October 2015. He amended it once before it came on for hearing in January 2018. Truax maintained the underlying trial information charged him with two class "D" felonies, which were improperly amended to two class "C" felonies after trial but prior to sentencing. He also claimed his trial and appellate counsel provided ineffective assistance in a number of ways. The PCR court denied the petition in its entirety.

         On appeal, Truax renews most of his PCR claims. He challenges the amendment to the trial information and urges us to find trial and appellate counsel ineffective, arguing the following errors: failing to object to vouching, hearsay, and more-prejudicial-than-probative evidence; poor performance at trial due to substandard trial preparation; and failure to object to prosecutorial misconduct.

         We generally review PCR proceedings for correction of errors at law. Allison v. State, 914 N.W.2d 866, 870 (Iowa 2018). That being said, we review constitutional claims, such as ineffective assistance of counsel, de novo. Id.

         We begin with Truax's claim that the trial information was improperly amended, changing the offenses Truax was charged with from two class "D" felonies to two class "C" felonies. As Truax notes, in ruling on his direct appeal, our court stated in passing that the description of the charges against Truax as "D" felonies in the trial information "was a scrivener's error." Truax, 2014 WL 970034, at *1 n.1. Relying on that statement, the PCR court refused to address Truax's claim.

         Here, Truax continues to argue that either the trial information was never amended or, at the least, that it was not properly amended. But we iterate our previous statement that the error in the description was simply a scrivener's error, which ...


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