The State Post-Conviction Relief Case, Part XII, The Order (B)

Well kids, the "Order", proposed by the crooks at the Polk County Attorney's Office, is in.  Please note that, just like all other justice applied for in all courts these days, the heroes win (The "State"), and the defendant, in ALL ways, loses everything.  Big Surprise there, eh?  No matter...for two very important reasons:

1.  Exposure of ALL of the State of Iowa's crimes, especially those concerning the juvenile cases, and, of course, all of the follow-up criminal cases as well, shall be aired like so much dirty laundry, on TV...first locally in CA, then, hopefully, syndicated COAST TO COAST following this little adventure.  Part B to that, all matters juvenile are about to be brought against Iowa in Federal court, using one of the most famous and top lawyers in the country, one that just LOVES to deal with these sorts of matters, and against these sorts of idiots.  Again, the name of that attorney's office was asked to be kept confidential until the matter goes to trial...and then, well, as far as I'm concerned, when the matter is already public record, then by all means, you're more than welcome to that name as well.

2.  By the time this gets to appeal, there will be even more exposure of this crapola, and every name of every attorney that was ever involved in any of these cases will be added to the feature article on this blog, currently, "The Corrupt Courts/Official's List." In case you're viewing this one your phone (the feature article doesn't show there unless you select the option to view it in the web format), here's that link:

https://themightyswordamericasdeadlysins.blogspot.com/2017/08/the-corrupt-courtscorrupt-officials.html

 After that, and after the airing of my show - which of course, has been promised to be the DEBUT episode, I imagine that just about every radio show host and reporter coast to coast will be staring very hard at the crimes that are being committed in the State of Iowa, and justice?  May just finally be done, hmmmm?

Here it is then, the other side's fair and just order (chuckles):



"IN THE IOWA DISTRICT COURT FOR POLK COUNTY


CHRISTOPHER BRUCE,
   Applicant,

vs.

STATE OF IOWA,
   Respondent.

ORDER

On July 5, 2017 the Applicant's Post-Conviction Relief trial was held.  The Court admitted Plaintiff's exhibits A through L, R, and AA, as well as Defendant's exhibits 20 through 23, and 32.  The Court also took the testimony of the Applicant and attorney Lucas Taylor.  The Applicant alleged ineffective assistance of counsel as it pertained to failure to appeal conviction, ineffective assistance of counsel for not calling witnesses Applicant desired at trial, ineffective assistance of counsel for not requesting Bond Hearing.  Applicant also alleged newly discovered evidence, error in denial of mistrial concerning media publication, the conviction and sentence was unconstitutional, applicant's right to proceed pro se in the criminal matter, denial of No Contact Order as Applicant as protected party against 3rd party, and warrant filed in error concerning Applicant's probation violations.  After hearing and reviewing all of the evidence in this matter, the Court denies the Applicant's request for Post-Conviction Relief concerning all allegations.

On January 26, 2016 the Applicant was charged by way of Compliant and Affidavit.  He had an Initial Appearance on the same date.  Bond was set $60,000 cash or surety.  On February 4, 2016 the Applicant was charge by way of Trial Information of Count I: Threat – Explosive or Incendiary Device (Class D Felony); Count II: Stalking (Aggravated Misdemeanor); & Count III: Harassment in the First Degree (Aggravated Misdemeanor).  On February 4, 2016 the Applicant also filed a Complaint for Denial of Pro Se Rights.  In this Motion the Defendant argued he has the right to conduct his own defense and therefore must have access to resources.  This matter was set for hearing on February 19, 2016, and an Order denying Applicant's Motion was issued on February 29, 2016.

On February 22, 2016 the applicant filed an Application for Counsel and was initially appointed the Iowa Public Defender whom later withdrew, and subsequently, on February 23, 2016, was appointed attorney Lucas Taylor.  Attorney Taylor filed a “Limited Appearance” on February 29, 2016.   On February 25, 2016, the Applicant filed a pro se Notice entitled “Notice Notice to Limit Reach of Court Appointed Attorney.”  This Notice was hand-written by the Applicant and stated in relevant part that the Applicant “chose to apply for and be appointed an additional 'co-counsel' at state expense.”  It also served as the Applicant's instructions to Attorney Lucas as co-counsel, specifically, that co-counsel does not speak for the Applicant; unless specifically instructed to, was not to file or remove essentially anything filed by the Applicant; and was not to “consider or accept, nor enter pleas or pleadings on behalf of the [Applicant].”  The Notice ended with clearly explaining the “purpose” of his appointed co-council, and explaining if there was a breach of this Notice, the Applicant would immediately demand co-counsel's withdraw.  The case proceeded with the Applicant representing himself and Attorney Taylor as his Stand-By Counsel.

On February 22, 2016 the Applicant filed pro se Notices of his Witness List and Evidence List.  Applicant's Witness List was amended on February 29, 2016, March 16, 2016, March 18, 2016, and March 21, 2016.  Of the total 38 number of witnesses listed by the Applicant, all appeared to be served or requested not to be served.

Also on February 22, 2016 the Applicant filed a Motion for Subpoenas at State Expense, which was granted by Order filed on March 16, 2016.  On March 16, 2016 Attorney Taylor was granted permission to serve subpoenas. On March 28, 2016 a Motion for an Investigator was filed by Attorney Taylor.  This Motion was granted on March 31, 2016.

On March 4, 2016 the Applicant filed Notice of Appeal concerning “Unlawful Arrest.”  On March 14, 2016, the Iowa Supreme Court issued an Order denying the Appeal (No. 16–0420), and on April 19, 2016 a Procedendo was filed.

On February 22, 2016 the Applicant filed a Notice of Dismissal of Charges and Cases.  This matter was taken up by the Court and denied by written ruling on March 16, 2016.  In the written ruling the Court found the State's Trial Information and Minutes of Testimony were sufficient, that the Court did have valid jurisdiction over the Applicant, that the Applicant's due process rights were not infringed, and that there was no valid contention of a citizenship issue or conflict of interest.
Jury Trial began on April 11, 2016 and concluded on April 14, 2016.  The Jury found the Applicant guilty of Count: II – Stalking (aggravated Misdemeanor) & Count III: Harassment in the First Degree (Aggravated Misdemeanor).  During the course of the trial the Applicant initially chose to represent himself, having Attorney Taylor as stand-by counsel.  The Court made adequate record concerning the Applicant's decision to represent himself.  Beginning on day two of trial, the Applicant chose to have Attorney Taylor represent him.  The Court made a detailed record of the Applicant's decision.  During this record, Attorney Taylor makes clear that his approach to this case will be different than the Applicant's; explaining that their trial strategy will differ.  The Applicant agreed to have attorney Taylor as the sole attorney during the second day of trial.  The jury was properly admonished concerning their duties and responsibilities.  This would include media coverage.  No evidence that any jury went beyond their permitted scope during their duty.

Following trial, the Applicant filed approximately thirteen (13) subsequent notices to the Court via EDMS from May 3, 2016 through May 4, 2016.  Additionally, the Applicant continued to file exhibits, motions, and notices up to the final disposition of the criminal matter illustrating he was acting in conformity of representing himself.

Sentencing took place on May 4, 2016 whereby the Applicant was adjudged guilty of the above two counts, and ordered as follows: Count II: Stalking, incarcerated for 181 days, all but 112 days suspended, credited with 52 days served; Count III: Harassment in the First Degree, incarcerated for 181 days, all but 112 days suspended, credited with 52 days served.  The terms were to run consecutive.  The Applicant was placed on probation for two (2) years, and was ordered to report to Room B40 of the Polk County Courthouse between 8:00 a.m. and 10:00 a.m. on the first business day after being released from custody.  The Applicant was ordered to pay restitution in a “To Be Determined” amount, and to comply with a No Contact Order.  Bond on appeal was set at $4,000 cash.  Applicant was served a copy of this order at sentencing.  A Nunc Pro Tunc Order was filed Correcting the Sentence to run concurrently on June 1, 2016, and ordering the Applicant released July 4, 2017, at the conclusion of his sentence.  At the Sentencing hearing a record was made whereby the Applicant chose to represent himself and have attorney Lucas Taylor stepdown as counsel and return to stand-by counsel.

On May 17, 2016, Post-Trial, the Applicant filed a pro se Motion for Reconsideration of Sentence requesting the Court enter a new sentence of prison.  The Court Ordered this to be heard on June 1, 2016.  On July 11, 2016 the Applicant requested a hearing and to serve the remainder of his sentence.  This was set for hearing on August 18, 2016, but later cancelled as it was moot.  On July 25, 2016 a Probation Violation Report was filed claiming the Applicant did not maintain contact with his Probation Officer.  On July 25, 2016 a warrant was issued.  Also on July 25, 2016 attorney Taylor withdrew from the case.  On August 17, 2016 the Applicant stipulated to violating the terms of his probation and was ordered to serve 68 days in the Polk County Jail consecutively for a total of 136 days.  The Applicant signed and filed a waiver of attorney for the probation hearing.

No appeal was filed as it relates to the underlying criminal matter.

APPLICABLE LAW

To establish an ineffective-assistance claim, an applicant must demonstrate, by a preponderance of the evidence (1) his attorneys failed to perform an essential duty and (2)
prejudice resulted. See State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012).

To satisfy the “essential duty” prong, an applicant must show the attorney's representation “fell below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 688 (1984). In evaluating the objective reasonableness of an attorney's conduct, we consider “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690. We evaluate the attorney's performance against “prevailing professional norms.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).

Even if there is a breach of a duty of counsel, an applicant must show how competent counsel would have changed the outcome.  Brown v. State, 3-1083/12-0446 (Iowa Ct. App. Dec 18 2013), see also Rivers v. State, 615 N.W.2d 688, 690 (Iowa 2000).  The Iowa Supreme Court has held that reasonable decisions by counsel regarding strategy are not fodder for later challenge when those strategies fail.  Fryer v. State, 325 N.W.2d 400, 413-15 (Iowa 1982).  An attorney fails to perform an essential duty when the attorney “perform[s] below the standard demanded of a reasonably competent attorney.” Ledezma .   The Courts presume the attorney performed competently, and the applicant must present “an affirmative factual basis establishing inadequate representation.” State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000).  “Miscalculated trial strategies and mere mistakes in judgment normally do not rise to the level of ineffective assistance of counsel.” Ledezma at 143.

There may also be a lack of prejudice where there is so much evidence of guilt, no reasonable probability exists that the result would have been different, even if counsel fails to perform an essential duty.  State v. Hopkins, 576 N.W.2d 374 (Iowa 1998).  It must also be understood “effective assistance of counsel” does not mean every mistake in judgment or error in trial strategy by an attorney serves to deprive an accused of a constitutional right. Long  at 558, see Tollett v. Henderson, quoted supra. See also McMann v. Richardson, 397 U.S. at 770-771, 90 S.Ct. at 1448-1449.
In order to prevail in postconviction relief action because of newly discovered evidence, the defendant must show: 1) that evidence was discovered after the verdict; 2) that evidence could not have been discovered earlier in the exercise of due diligence; 3) that evidence is material to issues in the case and not merely cumulative or impeaching; and 4) that evidence probably would have change the result at trial. More v. State, 880 N.W.2d 487 (Iowa 2016).  The standard for whether newly discovered evidence probably would have changed the result of trial, which must be shown for the applicant to prevail in a postconviction relief action based on newly discovered evidence, is a high one because of the interest in bringing finality to criminal litigation. Id. To resolve claims that the applicant is entitled to postconviction relief on the ground that there exists evidence of material fact not presented and head, the court follows the newly discovered evidence analysis. Grissom v. State, 572 N.W.2d 821 (Iowa Ct. App. 1997).

“Postconviction relief is not means of relitigating claims that were or should have been properly presented at trial or on direct appeal.” Adcock v. State, 528 N.W.2d 645 (Iowa App. 1994).  “Purpose of postconviction remedy is to return to trial courts…” Allen v. State, 217 N.W.2d 528 (Iowa 1974).  “Proceeding for postconviction relief is civil action and is triable at law.” Adcock, 528 N.W.2d 645 (Iowa App. 1994); Bettis v. State, 547 N.W.2d 635 (Iowa App. 1996).  “Any claim not properly raised at trial or on direct appeal may not be litigated in postconviction unless there is sufficient reason for not properly raising it previously.” Adcock, 258 N.W.2d at 647; citing Earnest v. State, 508 N.W.2d 630, 632 (Iowa 1993).

In the absence of a showing of cause, no issue that was or should have been litigated at trial or on appeal may be a ground for postconviction relief. Gordon v. State, 480 N.W.2d 265 (Iowa App. 1991) (holding that the Court cannot review an issue unless the applicant demonstrates by a preponderance of the evidence: 1) sufficient reason or cause exists for not having raised the claim on direct appeal; and 2) actual prejudice resulted from the claimed error.) citing Polly v. State, 355 N.W.2d 849, 856 (Iowa 1984)). “Actual prejudice” has been defined by the Iowa Supreme Court as more than mere “possibility of prejudice, he or she must shoulder the burden of showing they worked to his or her actual disadvantage, infecting the entire trial with error of constitutional dimensions. Polly, 355 N.W.2d at 855 (emphasis added by the Court); citing U.S. v. Frady, 456 U.S. 152, 169 (1982); see also State v. Elliott, No. 12-1086, 2013 WL 4504928 (Iowa Ct. App. Aug. 21, 2013) (Unpublished) (where the defendant raised the issue of bond and failure of his attorney to request a bond review prior to trial, and the Court dismissed the claim as the defendant failed to preserve the claim based on his failure to appeal). Thus, the Applicant must show both cause and actual prejudice concerning issues not raised on appeal. Ineffective assistance of counsel claims are a statutory exception to this rule. Everett v. State, 789 N.W.2d 151 (Iowa 2010).
RULING

The Applicant failed to appeal his conviction while he was at all relevant times representing himself. The Court finds the Applicant represented himself at all times absent day two of trial through the end of trial.  The Court finds the Applicant knowingly accepted the risks and consequences of representing himself. The Applicant made clear the role of his stand-by counsel, Attorney Taylor, and only requested Attorney Taylor take over mid-way through the trial.  Subsequent to trial the Applicant continued to file motions, notices, and additional documentation, thereby illustrating his own understanding that he was representing himself.  Additionally, the record made at the Sentencing hearing on May 5, 2016 made clear the Applicant was representing himself.  Moreover, the Applicant has shown through this Application and the underlying criminal case that he is fully capable of filing any motions or notices with the Court he deems necessary; this would include an appeal.  The failure to appeal his conviction falls squarely on the Applicant's shoulders. Thus, because the Applicant failed to appeal his conviction, all matters, absent the claim of ineffective assistance of counsel for failure to call witnesses the Applicant desired as well as ineffective assistance of counsel for failure to appeal are dismissed as waived and inappropriate to address in this postconviction proceeding.
Applicant failed to preserve his claim concerning a request for a Bond Review Hearing prior to trial as he did not file an appeal.  Additionally, prior to trial the Applicant was representing himself, having attorney Taylor as stand-by counsel.  Additionally, the Applicant demonstrated knowledge of motions and filings.  Even if preserved, the Applicant has failed to show stand-by counsel failed to perform an essential duty or actual prejudice.  The Applicant and the Court made ample record concerning the Applicant's desire to represent himself.  The record is clear that the Applicant did so understanding the risks.

Concerning the claim of ineffective assistance of counsel for failure to call desired witnesses, the Applicant and his stand-by attorney, Attorney Taylor, along with the Court, made sufficient record concerning trial strategy.  Any decisions made regarding which witnesses to call at trial at the time of defendant's case, was in the hands of Attorney Taylor as a competent trial strategy. Attorney Taylor testified that he spoke to these witnesses, and understood the issues in the case.  Upon review of the relevant facts and after discussion with the witnesses, attorney Taylor made a strategic decision not to call these witnesses. In addition, the Applicant shown no relevance or materiality of proposed witnesses as it relates to the underlying criminal case.  Additionally, the Applicant has shown no prejudice or that the outcome at trial would be different.  The Applicant's claim of ineffective assistance of counsel as it pertains to the calling of witnesses by attorney Taylor is denied.

The Applicant's claim that the trial and sentence was constitutional is also denied.  The sentencing judge only considered permissible factors in determining the sentencing scheme. In addition, the Applicant did not show cause why his conviction was not appealed nor actual prejudice as it relates to any constitutional ground.

As it concerns the Applicant's right to represent himself, the Court made record of the Applicant's decision to proceed with stand-by counsel, which is reflected in the Court's rulings and the Applicant's Application for an attorney.  The Applicant's agreement to proceed with stand-by counsel was further illustrated by the Applicant, himself, filing Notices concerning the stand-by counsel's role, specifically stating that should stand-by counsel breach this understanding, the Applicant would make the Court aware and proceed without stand-by counsel.  Additionally, the Applicant chose to rely on stand-by counsel for a number of issues prior to trial and at trial, including service of subpoenas and serving as his attorney at trial at the Applicant's specific request.  The Court finds the Applicant was allowed to represent himself as he desired.  At any point when attorney Taylor moved from merely stand-by counsel to the Applicant's attorney, it was done with the Applicant's permission and at his own request.

Applicant's claims of newly discovered evidence and error in denial of mistrial concerning media publication are also denied for the reasons set forth above.  Additionally, the Applicant presented no evidence which would allow this Court to find 1) that evidence was discovered after the verdict; 2) that the evidence could not have been discovered earlier in the exercise of due diligence; 3) that the evidence was material to issues in the case and not merely cumulative or impeaching; and 4) that the evidence probably would have change the result at trial. More v. State, 880 N.W.2d 487 (Iowa 2016).  Additionally, the Applicant failed to show media coverage of the Applicant played any role in the outcome of his criminal case.  The jury was properly instructed, and no issue concerning media coverage was noted during trial.  The evidence shows the jury conducted themselves properly and considered only the evidence.

The Applicant's claims concerning the probation revocation and the no contact order have no legal basis nor basis in fact.  They are also denied. Therefore, all claims present by the Applicant are denied."

Wasn't that just wunnerful?  Stay tuned, next time, as we post the doctored sentencing transcripts from this little te de te.