STEVE COOLEY, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-891 / 04-1788
Filed December 28, 2007
STEVE COOLEY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Linn County, David M. Remley,
Robert Sosalla, and L. Vern Robinson, Judges.
Steven Cooley appeals the district court’s ruling and sentencing order in
his postconviction relief proceeding. AFFIRMED.
Philip Mears of Mears Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney
General, Harold Denton, County Attorney, and Brain Claney, Assistant County
Attorney, for appellee State.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
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MAHAN, J.
Steven Cooley appeals the district court’s ruling and sentencing order in
his postconviction relief proceeding.
He argues the State should have been
prohibited from retrying the habitual offender phase of his trial. We affirm.
I.
Background Facts and Proceedings
This appeal arises out of Cooley’s 2001 charge and jury conviction for
forgery in violation of Iowa Code section 715A.2 (2001). In the habitual offender
phase of the trial the jury found Cooley to be a habitual offender in violation of
Iowa Code section 902.8.
Cooley represented himself with some assistance from stand-by counsel.
Before evidence was presented, stand-by counsel objected to the admission of
State’s Exhibit 1, a certified record from the Iowa Department of Corrections.
Specifically, stand-by counsel asked that the portions showing convictions not
specified in the minutes of testimony be excluded. The district court did not rule
on the motion, construing it as a motion in limine. Stand-by counsel made the
same objection when the State moved to admit Exhibit 1. The objection was
overruled, and the exhibit was admitted.
The State then called John Marsh Graham, an identification officer from
the Cedar Rapids Police Department. Officer Graham testified to his training and
experience in fingerprinting. He was then shown State’s Exhibit 2, which he
identified as a ten-print fingerprint card recorded as the fingerprints of the
defendant. Officer Graham testified it was a copy he obtained from the Linn
County Sheriff’s Department.
Upon the State’s offer of Exhibit 2, stand-by
counsel objected on the grounds of hearsay, lack of foundation because Officer
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Graham is not the custodian for the Linn County Sheriff’s Department, and that
the fingerprint card contained information not specified in the trial information or
minutes of testimony. The fingerprint card was dated February 9, 1970. Officer
Graham testified that he was not a police officer until 1973 and had no first-hand
knowledge regarding who was booked in at the time the fingerprint card was
made. The court admitted State’s Exhibit 2. Cooley’s evidence consisted of only
a procedendo establishing that the Iowa Supreme Court reversed the 1998 Linn
County conviction.
The jury verdict form listed three convictions: (1) a 1973 Linn County
conviction for breaking and entering, (2) a 1989 Scott County conviction for
forgery, and (3) a 2000 Linn County conviction for third-degree burglary. The jury
found Cooley had been convicted of all three. Cooley unsuccessfully appealed
his conviction.
In 2003 Cooley filed for postconviction relief. Judge David Remley found
Cooley had received ineffective assistance of counsel on direct appeal because
his appellate counsel failed to raise issues regarding the admission of the
evidence at the trial on the habitual offender issue.
Judge Remley granted
Cooley’s application for postconviction relief, vacated the habitual offender
portion of his sentence, and granted him a new trial on the habitual offender
phase of the case. He found Cooley’s objections to the evidence in the habitual
offender phase of the trial were valid objections to Exhibits 1 and 2. Judge
Remley ruled that a new trial on the habitual offender phase of the case was
appropriate because:
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[t]he habitual offender statute is a sentencing enhancement and not
a separate criminal charge. Therefore, the Double Jeopardy
Clause does not apply in this case since there was sufficient
evidence, although erroneously admitted, that Defendant was a
habitual offender, having been convicted of the felony offense of
Breaking and Entering in 1974 and the felony offense of Forgery in
1989. The Defendant’s conviction of the felony offense of Forgery
in 2000 in case number FECR 019164 was properly admitted.
Cooley moved to amend or enlarge the district court’s findings, asking it to
deny a retrial on the habitual offender phase of the case.
The motion was
denied. Cooley appealed but the appeal was stayed to allow the retrial to take
place on the habitual offender phase because the appeal might be unnecessary
if the result of the retrial was in Cooley’s favor.
Prior to retrial, Cooley filed a motion to dismiss claiming the State should
not be given a chance to retry the issue. The motion was denied. The State filed
a bill of particulars stating that it would prove two convictions: (1) a 1998 Linn
County conviction for burglary; and (2) a 1986 Mahaska County conviction for
third-degree burglary. The jury was unable to come to a unanimous conclusion
on whether Cooley was the same person who was convicted of the Mahaska
County charge. A second trial was set in which the jury found Cooley to be a
habitual offender. Cooley appealed. This appeal is a consolidation of the appeal
from Judge Remley’s postconviction ruling and the habitual offender retrial.
II.
Standard of Review
Normally we review postconviction proceedings for errors at law.
Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
However, when
constitutional issues are raised, we must make an independent evaluation of the
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totality of the evidence and our review is de novo. Brummer v. Iowa Dep’t of
Corrs., 661 N.W.2d 167, 171 (Iowa 2003).
III.
Merits
On appeal from his postconviction proceedings, Cooley argues the State
should have been prohibited from retrying the habitual offender phase of his trial.
In its postconviction ruling the district court ruled:
The Applicant has proven by a preponderance of the
evidence that if the trial court had sustained the Applicant’s
objections to those portions of Exhibit 1 which did not pertain to the
felonies alleged in the Minutes of Testimony and the Defendant’s
objections to Exhibit 2, the fingerprint card, both of which were valid
objections, the State would not have been able to prove the
Applicant was a habitual offender. Appellate counsel’s conduct,
although well intentioned, so undermined the proper functioning of
the adversarial process that the trial and appeal cannot be relied on
as having produced a just result. Therefore, the Applicant has
proven by a preponderance of the evidence that he was prejudiced.
Cooley does not take issue with this part of the district court’s ruling. His appeal
lies with the court’s remedy. The district court granted the State a new trial on
the habitual offender issue because “the habitual offender statute is a sentencing
enhancement and not a separate criminal charge.
Therefore, the Double
Jeopardy Clause does not apply in this case since there was sufficient evidence,
although erroneously admitted, that Defendant was a habitual offender. . . .”
Cooley argues that the relevant case law requires his case to be remanded to
district court for resentencing, but not as a habitual offender, and that the retrial
violated the Constitution’s Double Jeopardy Clause. We disagree.
When the evidence is sufficient, but the district court erred procedurally,
the correct remedy is to grant a new trial. Lockhart v. Nelson, 488 U.S. 33, 38,
109 S. Ct. 285, 289, 102 L. Ed. 2d 265, 272 (1988). A defendant is not put in
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double jeopardy when he is retried due to some procedural error at the district
court. Id. at 38, 109 S. Ct. at 289, 102 L. Ed. 2d at 272. In determining whether
the evidence is sufficient “all the evidence admitted during the trial, including
erroneously admitted evidence, must be considered.”
State v. Dullard, 668
N.W.2d 585, 597 (Iowa 2003). If the State presented sufficient evidence to rest a
conviction on, the case must be remanded for a new trial. See id. It is only when
the State failed in meeting its burden of producing sufficient evidence that it must
be denied a second bite at the apple. See Burks v. United States, 437 U.S. 1,
18, 98 S. Ct. 2141, 2150-51, 57 L. Ed. 2d 1, 14 (1978).
The district court correctly granted a new trial on the habitual offender
phase of Cooley’s trial. It considered all the evidence, even Exhibits 1 and 2,
which it found to be admitted in error at trial, and determined the evidence was
sufficient to find Cooley to be a habitual offender. Given this conclusion, the
proper remedy was to grant a new trial on the habitual offender phase of trial.
Cooley relies on State v. Gordon, 732 N.W.2d 41 (Iowa 2007), for his
position that the State should not have been granted a new trial on the habitual
offender issue. However, in Gordon, the defendant admitted to committing two
prior felonies, both of which occurred on the same day and thus do not constitute
habitual offender status. Gordon, 732 N.W.2d at 43. Because there was no
other evidence admitted showing any other prior felonies, the evidence was
insufficient to find Gordon to be a habitual offender. Id. at 44-45. In addition,
there was no procedural error at trial. Id. at 44. Thus, the State was not entitled
to a second chance to prove their case. Id. at 44-45. These facts are opposite of
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the facts we have in this case.
Gordon cannot, therefore, support Cooley’s
argument. The district court acted properly.
AFFIRMED.
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