McFARLAND v. STATE, 02-0474 (Iowa App. 5-14-2003)

No. 3-155 / 02-0474Court of Appeals of Iowa.
Filed May 14, 2003

Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.

Phillip McFarland appeals from the denial of his postconviction relief application. AFFIRMED.

Paul Rosenberg of Paul Rosenberg Associates, P.C. Des Moines, for appellant.

Phillip McFarland, Anamosa, for appellant pro se.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and Odell McGhee, Assistant County Attorney, for appellee.

Considered by Huitink, P.J., and Mahan and Hecht, JJ.

HECHT, J.

Phillip McFarland appeals from the order denying his postconviction relief application. We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS.
In April of 1997, the State charged Phillip McFarland with various offenses in four separate trial informations based on activities undertaken in furtherance of McFarland’s “bounty hunting” business. In case number FE112041, McFarland was found not guilty of first degree burglary, but was found guilty of assault. Thereafter case number FE111646 (the “Leach case”) proceeded to trial and the jury found McFarland guilty of second-degree burglary. In case numbers SR111588 and FE111876, McFarland entered Alfordpleas to conspiracy to commit burglary, assault causing bodily injury, two counts of false imprisonment, and impersonating a public official.

We summarized the facts of the Leach case in State v. McFarland, 598 N.W.2d 318, 319 (Iowa Ct.App. 1999), Phillip McFarland’s direct appeal. We will reproduce them here:

Philip McFarland and Edward Green claimed to be bounty hunters who pursued individuals who failed to appear at criminal proceedings after obtaining bail bonds. In March 1997, they allegedly received a tip that Maurecio Gomez had skipped bail and was staying at a mobile home park in Des Moines. On March 18, 1997, sometime between 1:30 and 2:30 a.m., McFarland and Green arrived at the mobile home of Wendell and Sandy Leach. The Leaches and three of their four children were home.
McFarland began pounding on the front door of the Leach mobile home. When Wendell Jr. asked what was going on, McFarland broke the front door open and barged into the home. In the process, the door flew open and Wendell Jr. was knocked against a closet. McFarland said he was a bounty hunter and stated he was “looking for some Mexicans.” Sandy and Wendell argued with McFarland about his being in their home. McFarland threatened to “smack” Sandy if she did not “shut up.” When McFarland realized Gomez was not connected with the Leaches, he apologized, left the home, and went to the trailer next door.

McFarland, 598 N.W.2d at 319.

McFarland filed an appeal of the judgment in the Leach case and a separate appeal of the judgments in case numbers SR111588 and FE111876. In the direct appeal of the Leach case, we affirmed, holding (1) the State proved with sufficient evidence that McFarland acted with the specific intent necessary to sustain a second-degree burglary conviction, and (2) a citizen’s arrest defense cannot be used as an affirmative defense to burglary or assault when the unlawful entry or force is used against an innocent third person. Id. at 322. McFarland’s convictions in case numbers SR111588 and FE111876 were affirmed as well, following a remand for resentencing.

McFarland subsequently filed a postconviction relief application in which he claimed he received ineffective assistance of trial and appellate counsel, his guilty pleas were involuntary, the State failed to abide by a plea agreement, and his right to be present at all stages of the trial was violated when he was excluded from discussions between the attorneys and the trial judge. In a ruling filed on March 6, 2002, the district court rejected all of these claims and denied the relief requested by McFarland, who now appeals.

II. INEFFECTIVE ASSISTANCE OF COUNSEL. We typically review postconviction relief proceedings on error. Osbornv. State, 573 N.W.2d 917, 920 (Iowa 1998). However, when the applicantasserts claims of a constitutional nature, our review is de novo. Id.Thus, we review claims of ineffective assistance of counsel de novo.State v. Mapp, 585 N.W.2d 746, 747 (Iowa 1998). In addition, we giveweight to the lower court’s findings concerning witness credibility.Taylor v. State, 352 N.W.2d 683, 687 (Iowa 1984).
Generally, a claim not raised on direct appeal cannot be raised in apostconviction relief proceeding unless the applicant can demonstrate asufficient cause or reason for not properly raising the issuepreviously. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Theapplicant must also prove he was actually prejudiced by the allegederror. Id. To prove prejudice, the applicant must show that the allegederror actually and substantially disadvantaged him. Polly v. State,355 N.W.2d 849, 855 (Iowa 1984). The ineffective assistance of appellatecounsel may constitute a sufficient reason for failing to raise the issueof ineffective assistance of trial counsel on direct appeal. Berryhill,603 N.W.2d at 245. We judge ineffective assistance of appellate counselclaims against the same two-pronged test utilized for ineffectiveassistance of trial counsel claims. Id.

A. Failure to Present Evidence Supporting Bounty Hunting Theory.
The district court rejected McFarland’s claim that his direct appeal counsel was ineffective in failing to raise various issues related to his contention that, as a “bounty hunter,” his actions possessed some “authority and legitimacy.” In particular, he now contends counsel should have rebutted testimony that he lacked the authority to bounty hunt, and that counsel should have raised the case of Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 21 L.Ed. 287 (1872) as common law authority for bounty hunting.[1]
We conclude counsel breached no duty to raise this issue in that itwould have been meritless. See State v. Ceaser, 585 N.W.2d 192, 195(Iowa 1998) (trial counsel need not raise a meritless issue). Even ifTaylor v. Taintor stands for the proposition a bounty hunter possessessome kind of common law authority to effect the arrest of a bail jumper,that principle would not aid McFarland. In the Leachcase, McFarlandentered the home of a totally innocent third-person who was not subjectto arrest. Taylor v. Taintor certainly does not lend support for theproposition a “bounty hunter” has some authority to break into the home ofan innocent party and assault him or her. Accordingly, much like we heldin State v. McFarland, 598 N.W.2d at 322 — that a citizen’s arrestcannot be used as an affirmative defense to burglary or assault when theentry or force is used against an innocent person — we concludehere McFarland cannot assert a defense based on Taylor v. Taintor whenthe victim is an innocent third party. Thus, we conclude McFarland’strial and direct appeal counsel were not ineffective in failing to raisethis issue.

B. Failure to Identify and Subpoena Witnesses. On appeal, McFarland contends the postconviction court erred in failingto conclude trial counsel was ineffective by not securing testimony fromcertain witnesses. Those witnesses include (1) law enforcement officersthat McFarland allegedly had contact with in conjunction with his bountyhunting business, (2) officers who investigated the Leach case butapparently concluded no crime had been committed by McFarland, and (3) amember of the Leach family whose testimony would allegedly tend to proveMcFarland did not break into the house. We will address each in turn. Toprove prejudice from a trial attorney’s failure to investigate or subpoenapotential witnesses, McFarland must show that the uncalled witnesses wouldhave testified at trial and that their testimony would have probablychanged the outcome of the trial. Stewart v. Nix, 31 F.3d 741. 744 (8thCir. 1994).

1. Officers with knowledge of his bounty hunting business. McFarland asserted below his direct appeal counsel was ineffective infailing to argue trial counsel should have subpoenaed law enforcementofficers who, he claims, would have testified that they had previouscontacts with McFarland in the course of his work as a bounty hunter.However, even if we assume law enforcement officers knew McFarland wasworking in that capacity, we find no authority for the proposition thatsuch officers could have granted “permission” or “authority” to forciblyenter an innocent third party’s home and commit an assault therein.Thus, we conclude McFarland has failed to meet his burden to prove “thereis a reasonable probability that, but for the counsel’s unprofessionalerror, the result of the proceeding would have been different” if the officers had been called. See State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998).

2. Officers who initially investigated the Leach case. McFarland contends trial counsel had a duty to subpoena police officerswho investigated the Leach incident but left the scene after determiningno crime had been committed. McFarland presented no testimony from theseofficers in the postconviction record and asks us to speculate about whatthey would have testified had they been called in the Leach case. We donot engage in such speculation and we conclude McFarland has failed tomeet his burden of proof on this issue.
Furthermore, the postconviction court found McFarland’s trial counselattempted to contact one of the officers in question, but that theofficer did not return her calls. The court also accepted counsel’stestimony about her belief that the officers’ testimony would not haveaided in McFarland’s defense. Such determinations by defense counselinvolve reasonable trial strategy which we will not second-guess. SeeState v. Tryon, 431 11, N.W.2d 18 (Iowa Ct.App. 1988); see also Ledezmav. State, 626 N.W.2d 134, 143 (Iowa 2001) (“Miscalculated trialstrategies and mere mistakes in judgment normally do not rise to thelevel of ineffective assistance of counsel.”).

3. Leach family member. McFarland asserts that if called, Scott Leach, one of the Leachchildren living in the home when he entered it, would testify thatWendell Jr. told him he had unlatched the door prior to McFarlandentering it. In McFarland’s view, this would tend to prove he did notforcibly enter the Leach home. On our de novo review of the record, weconclude McFarland was not prejudiced by counsel’s failure to call ScottLeach. The entry occurred in the early morning hours. Wendell Leach Jr.testified that McFarland banged on the door, which “flew open” and hithim, knocking him into the back of the closet. An argument ensued betweenMcFarland and the Leaches about his presence in the home. Finally, apolice technician testified that shortly following the incident sheobserved what appeared to be new damage to the Leachs’ door indicating ithad been forcibly opened. Accordingly, we conclude McFarland has notshown a reasonable probability Scott’s testimony would have changed theoutcome of the case.

III. STATE’S BREACH OF PLEA AGREEMENT. The postconviction court rejected McFarland’s contention appellatecounsel rendered ineffective assistance in failing to argue the Statebreached the plea agreement. The State and McFarland entered into anagreement in which the State agreed, among other things, to not resistthe imposition of concurrent sentences. At the sentencing hearing,McFarland’s counsel informed the court of the agreement. Thereafter theState remained silent at the sentencing hearing on the question ofwhether the sentences should run concurrently or consecutively. McFarlandcontends the plea agreement required the prosecutor to specificallyaffirm during the sentencing hearing its assent to the imposition ofconcurrent sentences.
When a plea rests on a promise or agreement of the prosecutor, so thatit can be said to be part of the inducement or consideration for theplea, such promise must be fulfilled. State v. Horness, 600 N.W.2d 294,298 (Iowa 1999). Interpretation of a plea agreement involves theascertaining of the meaning of words and is a legal question. Ridingerv. State, 341 N.W.2d 734, 736 (Iowa 1983). The fact a defendantsubjectively disagrees with the plain meaning of the agreement, withoutmore, does not establish its ambiguity. Id. Where the language is clearand unambiguous, the intention expressed in the agreement prevails overthe intent or interpretation of a party. Id.
We believe reasonable minds could not reach different inferences fromthe questioned term of the plea bargain reached between McFarland and theState. The State agreed not to resist the imposition of concurrentsentences, and that is precisely what it did. The agreement did not callfor the State to affirmatively recommend such a sentence. See Horness,600 N.W.2d at 299 (interpreting the State’s promise to “recommend”specific sentences). Counsel’s silence is the equivalent of “notresisting” the request, and thus the prosecutor did not breach the pleaagreement. Counsel was thus not ineffective in failing to raise thisissue.

IV. TRIAL COUNSEL’S COERCION. McFarland contended below appellate counsel was ineffective in failingto assert trial counsel Valerie Wilson coerced him into accepting theplea agreement offered by the State, and therefore his guilty pleas wereinvoluntary. McFarland presented evidence that Wilson threatened towithdraw from his representation if he did not accept the plea bargain.The postconviction court rejected this contention, specifically noting itfound McFarland not to be credible with regard to this claim. We defer tothose credibility findings. See Cox v. State, 554 N.W.2d 712, 715 (IowaCt.App. 1996).
We conclude McFarland cannot show he was prejudiced by counsel’sfailure to raise this issue. See Berryhill, 603 N.W.2d at 245. Our denovo review of the record persuades us McFarland fully understood theterms of the plea agreement, and that his plea was given voluntarily andintelligently. The plea colloquy reflects the court informed McFarland ofthe elements of the charges, the possible sentencing options, the rightto court-appointed counsel, the privilege against self-incrimination, thepresumption of innocence, and the State’s burden of proof. SeeIowaR.Crim.P. 2.8(2)(b). McFarland admitted he understood these rights, andthat his plea was a voluntary and informed decision. Accordingly, weconclude that because McFarland cannot show his Alford pleas wereinvoluntary, he cannot establish appellate counsel was ineffective infailing to raise this issue on direct appeal.

V. EXCLUSION FROM CONVERSATION IN CHAMBERS. Conversations occurred between the trial judge, Valorie Wilson, andprosecutor Odell McGhee at which McFarland was not present. Theseconversations between counsel and the court were held for the purpose ofdiscussing a potential plea agreement. In his postconviction reliefapplication, McFarland claimed his right to be present at all stages ofthe trial was infringed, and thus he was denied his due process and SixthAmendment rights.
Iowa Rule of Criminal Procedure 2.27(1) requires the presence of acriminal defendant “at the initial appearance, arraignment, and plea” aswell as “at every stage of trial including the impaneling of the jury andthe return of the verdict.”
`[S]tage of the trial’ as used in rule [2.27(1)] [requiring presence ofdefendant] includes the trial itself, from the selection of the jurythrough the verdict and, in addition, all pretrial and post-trialproceedings when fact issues are presented or when their dispositions, forsome other reason, will be significantly aided by the defendant’spresence.
State v. Austin, 585 N.W.2d 241, 245 (Iowa 1998).

We find the conversations from which McFarland was excluded were merelyinformal discussions between the court and counsel and were intended toexplore the potential for a plea agreement. In this sense, McFarland’scause could only have been aided by the conversations. Moreover, weconclude the conversations were not held during a proceeding or stage ofthe trial contemplated in rule 2.27(1). Appellate counsel thus did notrender ineffective assistance in failing to raise this issue on directappeal.

VI. CONCLUSION.
McFarland has filed a pro se appellate brief. We note this appears to be a reproduction of an ethics complaint to the Iowa Supreme Court Board of Professional Ethics and Conduct regarding his trial counsel, Valorie Wilson. It does not appear to contain any identifiable issues not addressed in his appellate counsel’s brief in this appeal. We have considered all contentions made in McFarland’s pro se brief, and whether expressly addressed or not in this opinion, we find them to be without merit. We affirm the denial of McFarland’s postconviction relief application.

AFFIRMED.