No. 04-0323.Court of Appeals of Iowa.
March 16, 2005.
Appeal from the Iowa District Court for PolkCounty, Carla T. Schemmel, Judge.
The State appeals from the order granting Onela Ho a new trial following his postconviction relief application. REVERSED.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, John P. Sarcone, County Attorney, and James P. Ward, Assistant County Attorney, for appellant.
Jeffrey Lipman, Des Moines, and Samuel Marks, Des Moines, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, Hecht, and Eisenhauer, JJ.
HECHT, J.
A postconviction relief court granted applicant, Onela Ho, a new trial following his conviction for first-degree robbery. The State appeals from this ruling.
Background Facts and Proceedings.
On May 2, 1997, two elderly women were robbed at knifepoint at the Merle Hay Mall in Des Moines. After fighting off the assailant, the women wrote down the assailant’s license plate number as he fled the scene. A police investigation disclosed Onela Ho was the car’s registered owner. The two women identified Ho from a photographic array. Ho was charged with first-degree robbery and found guilty following a jury trial. He filed a timely notice of appeal, but that appeal was later dismissed after the supreme court granted appellate counsel’s motion to withdraw under Iowa Rule of Appellate Procedure 6.104.
On June 11, 2000 Ho filed an application for postconviction relief alleging a number of grounds for relief, including ineffective assistance of trial and appellate counsel. In particular, the application maintained counsel was ineffective for failing to investigate whether Ho’s brother, Sone Ho, had committed the robbery. Following a hearing, the postconviction court granted Ho a new trial. It concluded trial counsel was ineffective in failing to investigate whether Sone Ho was the perpetrator, and in failing to interview a co-worker whom Ho maintained gave him a ride home on the morning of the robbery. The State appeals from this ruling.
Scope of review.
Postconviction relief proceedings are ordinarily reviewed for errors of law. Schertz v. State, 380 N.W.2d 404, 408 (Iowa 1985). “However, when a postconviction petitioner asserts a violation of constitutional safeguards, the reviewing court makes its own evaluation based on the totality of the circumstances, which is the equivalent of a de novo review.” Id.
Ineffective Assistance Standards.
To prove ineffective assistance of counsel the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel’s error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). In order to prove prejudice, one must show there is a reasonable probability that but for counsel’s unprofessional errors the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Ledezma, 626 N.W.2d at 143-44.
The test to be applied in judging counsel’s actions is whether counsel’s performance was within the range of normal competency Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981). A presumption exists that counsel is competent. Sims v. State, 295 N.W.2d 420, 423 (Iowa 1980). “Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel.” Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972).
An inadequate investigation by defense counsel can constitute ineffective assistance. Schrier v. State, 347 N.W.2d 657, 662
(Iowa 1984). Counsel’s duty to investigate, however, is not limitless. Id.
Failure to Investigate Sone Ho.
We first address the postconviction court’s conclusion Ho received ineffective assistance as a consequence of trial counsel’s failure to investigate Sone Ho’s responsibility for the crime in question. While the State acknowledges Ho’s trial counsel had a duty to make a reasonable investigation, it contends “[t]his duty cannot, logically or legally, arise if counsel has no reason to suspect a particular avenue of investigation may exist.” We agree. Leslee Dalen, Ho’s trial counsel, testified at the post-conviction relief hearing that she had no recollection she had ever been informed of Sone Ho’s existence or of the potential that he might have been the perpetrator. In fact, Dalen testified that had Onela informed her of the possibility that Sone might have been involved, she certainly would have investigated such claim. Although Dalen did not investigate Sone Ho’s involvement in the crime, she did pursue potential alibis and did investigate William Ho, another of Onela Ho’s brothers, and Lilia Lund, an individual whom Onela claimed might have information concerning the location of his vehicle on the day of the crime. William Ho could not confirm Ho’s version of the facts and trial counsel was unable to locate Lund prior to trial in the criminal case.
Furthermore, Onela testified at the postconviction hearing that he did not suspect his brother Sone was the perpetrator of the crime until his private investigator informed him of the possibility during the postconviction proceedings. Because Ho claims he did not consider his brother a suspect until after his trial counsel’s service ended, he posits he could not have brought the prospect to counsel’s attention prior to or during the trial.
While it is theoretically possible that counsel may have uncovered useful information if she had investigated Sone Ho as a possible perpetrator, the duty to investigate is not limitless See Ledezma, 626 N.W.2d at 145 (“Counsel is required to conduct a reasonable investigation or make reasonable decisions that make a particular investigation unnecessary.”). The “limits” of a competent counsel’s duty to investigate depend in part on the information reasonably available to counsel at the time. The information available to counsel of course includes that which was available from her client. Where Ho claims not to have suspected Sone’s involvement in the crime at the relevant time, we are not convinced that trial counsel had a duty to suspect and investigate such a prospect. We therefore reverse the postconviction court’s grant of a new trial based on counsel’s failure to investigate Sone Ho’s involvement in the crime.
Failure to Investigate Co-Worker.
We next address the district court’s further conclusion that Ho received ineffective assistance due to counsel’s failure to investigate and present evidence tending to prove he didn’t have possession of his car on the day of the crime. In particular, Ho contends trial counsel should have developed evidence that a co-worker gave Ho a ride home from work on the morning of the robbery. Ho claims others routinely had access to and used his car; and that trial counsel breached a duty to develop this exculpatory evidence.
We acknowledge that Ho testified in the postconviction proceedings that “[h]e went home with a coworker” on the morning of the crime. However, we are not persuaded that on this record trial counsel knew or should have known of the co-worker’s potential involvement as a witness. There is no evidence that Ho informed his counsel of the existence of such a witness. The record does not disclose whether trial counsel investigated Ho’s present claim that such a witness existed, nor does it disclose the results of such investigation if it was in fact conducted because trial counsel was simply never asked about the subject during the postconviction proceedings. Consequently, although the postconviction court’s finding that trial counsel failed to interview the co-worker is supported in the record, we do not agree such failure constituted ineffective assistance. In the absence of testimony or other record evidence tending to establish that trial counsel knew or should have known of the existence of the potential witness, and lacking evidence that such a witness existed and would have corroborated Ho’s claim, we cannot conclude counsel’s assistance was ineffective.
REVERSED.