GEORGE E. PITTMAN, JR., Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-774 / 06-1824
Filed December 12, 2007
GEORGE E. PITTMAN, JR.,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Buena Vista County, Don E.
Courtney, Judge.
George E. Pittman, Jr. appeals the district court’s denial and dismissal of
his application for postconviction relief. AFFIRMED.
Jack B. Bjornstad, Bjornstad Law Office, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney
General, and Dave Patton, County Attorney, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
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MILLER, J.
George E. Pittman, Jr. appeals the district court’s denial and dismissal of
his application for postconviction relief. We affirm.
Pittman was convicted of first-degree murder, in violation of Iowa Code
sections 707.1 and 707.2 (2001). He appealed his conviction, claiming there was
not sufficient evidence to support his conviction and that his trial counsel was
ineffective for failing to ensure his waiver of jury trial was valid, failing to object to
lay testimony regarding the victim’s mental state, and failing to object to evidence
of certain bruises on the victim’s body that were discovered during an autopsy.
This court affirmed Pittman’s conviction and concluded his trial counsel was not
ineffective in the ways claimed. State v. Pittman, No. 02-1318 (Iowa Ct. App.
Feb. 27, 2004).
Pittman filed an application for postconviction relief.
The State filed a
motion to dismiss the application, asserting the grounds raised in the application
either had already been finally adjudicated on direct appeal or were waived. The
district court reviewed Pittman’s claims, notified Pittman of its intent to dismiss
the application, and allowed Pittman time to reply to the proposed dismissal in
accordance with Iowa Code section 622.6 (2005). Through appointed counsel
Pittman filed an amended application claiming in relevant part that his appellate
counsel, Mr. Japuntich, provided ineffective assistance in failing to challenge on
direct appeal the trial court’s denial of Pittman’s motion for change of venue.
A hearing was held on Pittman’s postconviction application.
Pittman
participated by telephone. At the start of the proceeding Pittman requested to
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have the hearing reset at a time he could be personally present.
The
postconviction court determined the hearing would proceed because the
personal presence of the applicant was not required. After hearing testimony
from both sides, including testimony from Pittman and Japuntich, the court
entered a written ruling denying and dismissing Pittman’s postconviction
application.
The court concluded, in relevant part, that Pittman had not
established that Japuntich had rendered ineffective assistance by not raising as
an issue on direct appeal the denial of Pittman’s motion for change of venue.
Pittman appeals the postconviction court’s denial of his application
contending the court erred in concluding Japuntich was not ineffective by failing
to challenge the denial of his motion for change of venue. More specifically, he
contends Japuntich was ineffective for failing to obtain and review the transcript
of jury selection before deciding not to raise the issue on direct appeal. He also
claims his postconviction counsel was ineffective for failing to make an
application for Pittman to personally appear and participate in the postconviction
hearing.
We typically review postconviction relief proceedings on error. Ledezma
v. State, 626 N.W.2d 134, 141 (Iowa 2001).
However, when the applicant
asserts a claim of constitutional nature, such as ineffective assistance of counsel,
we evaluate the totality of the circumstances in a de novo review. Id.
A person claiming he or she received ineffective assistance of counsel
must prove by the preponderance of the evidence that (1) counsel failed to
perform an essential duty, and (2) prejudice resulted from the error. State v.
4
Doggett, 687 N.W.2d 97, 100 (Iowa 2004). To prove the first prong, failure of an
essential duty, the person must overcome a presumption that counsel was
competent and show that under the entire record and totality of circumstances
counsel’s performance was not within the range of normal competency. State v.
Buck, 510 N.W.2d 850, 853 (Iowa 1994). To prove the second prong, resulting
prejudice, the person must show that counsel’s failure worked to the person’s
actual and substantial disadvantage so there exists a reasonable probability that
but for counsel’s error the result of the proceeding would have been different.
Doggett, 687 N.W.2d at 100; Ledezma, 626 N.W.2d at 143-44. On appeal we
can affirm a rejection of an ineffective-assistance-of-counsel claim if proof of
either element is lacking. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999).
In finding Pittman’s appellate counsel was not ineffective for not
challenging on direct appeal the denial of his motion for change of venue, the
district court concluded, in part:
It is true that Japuntich did not challenge the trial court’s decision
not to grant the change of venue. However, the Court does not find
that this decision places his performance below the standard of a
reasonably competent attorney. Instead, as he testified at the
hearing, Japuntich did not believe, based on the evidence
submitted when the motion was made, that there was enough to
create a viable issue on appeal. . . .
The Court believes Japuntich’s decision is more properly
characterized as a tactical one, rather than one that was made due
to a lack of diligence. Although he never reviewed the transcript of
the voir dire proceeding, this was not for lack of effort, as Pittman
suggested. He attempted to secure a copy of the transcript, and
was told by the court reporter assigned to Pittman’s jury selection
and trial that it had not been reported. The Court finds this to be a
diligent effort on his part, particularly given the fact that he did not
believe the venue issue to be meritorious in the first place.
Pittman cannot establish that his appellate counsel failed to
perform an essential duty. . . . Japuntich made a tactical decision
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to not challenge the trial court’s ruling, and the Court finds that
decision was consistent with prevailing professional norms.
We agree with the postconviction court that Pittman did not prove that
Japuntich breached an essential duty by not challenging on direct appeal the
denial of his motion for change of venue. Not only did someone from Japuntich’s
office inquire regarding any voir dire transcript and was told voir dire had not
been reported, Japuntich himself called the court reporter directly and she also
stated she did not believe it had been reported but she would check. Japuntich
told her that if she found it had been reported he needed to know and to get the
transcript as soon as possible. Japuntich did not hear further from the court
reporter and did not learn that voir dire had in fact been reported until the day of
the postconviction hearing. Appellate counsel’s actions were sufficiently diligent
and did not fall below the standard of a reasonably competent attorney. Pittman
did not prove Japuntich breached an essential duty.
We further conclude Pittman has not shown he was prejudiced by
appellate counsel not raising a change of venue issue on direct appeal. In order
to prevail on the prejudice prong, Pittman must show there is a reasonable
probability he would have been acquitted if the venue had been changed and he
had been tried by a jury selected in a different county. See Wright v. Nix, 928
F.2d 270, 273 (8th Cir. 1991).
Pittman does not point out anything in the transcript of the jury selection
demonstrating there is a reasonable probability that had Japuntich raised this
issue on direct appeal the outcome of the proceeding would have been different.
Nor does he cite anything in the transcript demonstrating that a fair jury could not
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be selected in the county where he was tried.
Furthermore, following jury
selection Pittman waived his right to a jury trial and the case was tried to the
court. No claim has been made here that he received an unfair trial from the
district judge who heard the case.
Thus, Pittman has not shown he was
prejudiced by the denial of the change of venue or by appellate counsel not
challenging that denial on direct appeal.
Pittman next claims he received ineffective assistance of postconviction
counsel because counsel failed to make an application for Pittman to personally
appear at the postconviction hearing. We review claims of ineffective assistance
of postconviction counsel under a de novo standard of review. Collins v. State,
588 N.W.2d 399, 401 (Iowa 1998). Defendants have a right to effective counsel
in a postconviction proceeding. Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994)
(noting that although it is not a constitutional right, the statutory right to
postconviction counsel implies a right to effective counsel).
Competency
standards are the same for any subsequent counsel as they are for trial counsel.
Dunbar, 515 N.W.2d at 15. We may dispose of an ineffective-assistance-ofcounsel claim if the applicant fails to meet either the breach of duty or the
prejudice prong. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052,
2069, 80 L. Ed. 2d 674, 699 (1984); State v. Cook, 565 N.W.2d 611, 614 (Iowa
1997). Because we find evidence of prejudice lacking on Pittman’s claim of
ineffective assistance of postconviction counsel, we need not address counsel’s
alleged breach of duty.
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Here, Pittman was able to appear and participate by telephone at the
postconviction hearing. He was able to testify, supplement the record, and make
his own oral arguments in support of his claims. He was represented by counsel
at the hearing. Pittman makes no argument as to what more he would have
been able to do to further his cause had he been physically present at the
hearing.
We conclude Pittman has not met his burden to prove, by a
preponderance of the evidence, that there exists a reasonable probability that
had he been personally present at the postconviction hearing the result of the
proceeding would have been different.
His claim of ineffective assistance of
postconviction counsel therefore also fails.
Based on our de novo review, and for the reasons set forth above, we
conclude Pittman has not met his burden to show, by a preponderance of the
evidence,
he
was
denied
effective
assistance
of
either
appellate
or
postconviction counsel. The district court did not err in denying and dismissing
Pittman’s application for postconviction relief.
AFFIRMED.
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