MICHAEL ANTHONY MCDUFFEN, Applicant - Appellant, vs. STATE OF IOWA, Respondent - Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 8-596 / 07-0382
Filed October 15, 2008
MICHAEL ANTHONY MCDUFFEN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
______________________________________________________________
Appeal from the Iowa District Court for Dallas County, William H. Joy,
Judge.
Applicant appeals the district court’s denial of his request for
postconviction relief on his conviction for first-degree robbery. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney
General, and Wayne Reisetter, County Attorney, for appellee.
Considered by Mahan, P.J., and Vaitheswaran, J., and Schechtman, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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SCHECHTMAN, S.J.
I.
Background Facts & Proceedings
The five-count trial information accused Michael McDuffen of attempt to
commit murder, robbery in the first degree, willful injury, and two other felonies.
During a seven-day bench trial, in response to the defendant’s motion for
judgment of acquittal, the count for willful injury was dismissed. The trial court
concluded that willful injury, under Iowa Code section 708.4 (1997), was a lesserincluded offense of robbery in the first degree under Iowa Code sections 711.1
and 711.2 (purposely inflicted a serious injury).
Subsequently, the trial court, as the fact finder, found McDuffen had
assaulted his landlady in his room, then battered her with the end of the canister
portion of a vacuum cleaner, leaving her in a vegetative state, and then exited
with her purse containing about $2,000 in cash, checks, and money orders. The
trial court found McDuffen guilty of both attempted murder and robbery in the first
degree.
McDuffen was sentenced to a term of imprisonment not to exceed
twenty-five years on each count, to be served consecutively.
His convictions were affirmed on appeal, the contested issue being
sufficiency of the evidence. McDuffen’s assertions of ineffective assistance of
counsel were reserved for postconviction proceedings. See State v. McDuffen,
No. 98-0716 (Iowa Ct. App. May 26, 1999).
He now appeals the dismissal of his postconviction relief action.
McDuffen contends he received ineffective assistance from trial and appellate
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counsel due to their respective failures to challenge his conviction for first-degree
robbery after its lesser included offense of willful injury had been dismissed.
II.
Standard of Review
We review claims of ineffective assistance of counsel de novo. State v.
Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective
assistance of counsel, an applicant must show (1) the attorney failed to perform
an essential duty, and (2) prejudice resulted to the extent it denied the applicant
a fair trial.
State v. Shanahan, 712 N.W.2d 121, 136 (Iowa 2006).
Absent
evidence to the contrary, we assume that the attorney’s conduct falls within the
wide range of reasonable professional assistance.
State v. Hepperle, 530
N.W.2d 735, 739 (Iowa 1995).
III.
Merits
McDuffen claims that the district court’s dismissal of the charge of willful
injury constituted an acquittal of the greater charge. He asserts that because
willful injury is a lesser included offense of first-degree robbery, his conviction of
the greater offense after acquittal on the lesser offense violates double jeopardy.
See State v. Butler, 505 N.W.2d 806, 807 (Iowa 1993) (noting the Double
Jeopardy Clause of the Fifth Amendment to the United States Constitution,
applicable to states under the Fourteenth Amendment, protects against a second
prosecution for the same offense after acquittal).
McDuffen contends he
received ineffective assistance because neither counsel sought dismissal of the
charge of first-degree robbery under this legal theory.
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Willful injury is a lesser included offense of the “purposely inflicts serious
injury” alternative of first-degree robbery, as “it is impossible to commit firstdegree robbery under the purposely-inflicts-serious injury alternative without also
committing willful injury.” See State v. Hickman, 623 N.W.2d 847, 852 (Iowa
2001).
An “acquittal of the lesser-included charge bars a subsequent
prosecution of the greater offense.” State v. Burgess, 639 N.W.2d 564, 568
(Iowa 2001).
Under Iowa Code section 701.9, Iowa’s merger statute, (“No
person shall be convicted of a public offense which is necessarily included in
another public offense of which the person is convicted”), a defendant may not
be convicted of both willful injury and first-degree robbery, with the subject
alternative, based on the same act.
Claims similar to those raised by McDuffen were raised in State v.
Hamrick, 595 N.W.2d 492, 493 (Iowa 1999), where the defendant raised a
double jeopardy claim when the State charged him with third-degree kidnapping
after a previous dismissal under rule 2.33(1) of the lesser-included offense of
false imprisonment.
The Iowa Supreme Court noted the charge of false
imprisonment had been dismissed as a part of a plea agreement, which
subsequently failed, and under rule 2.33(1) the State was not precluded from refiling the previously dismissed charges. Hamrick, 595 N.W.2d at 494-95. The
court also found that the State, on re-examining the evidence, could charge the
defendant with a greater offense, in that case third-degree kidnapping. Id. at
495. The court found no double jeopardy violation. Id.
The central inquiry is what constitutes an acquittal. The trial court stated:
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As the Court noted earlier, willful injury is a lesser included
offense of robbery in the first degree. So since it is included as a
lesser included offense, there is no need for it to be charged in a
separate count. The Court will dismiss count IV, willful injury as a
separate offense. But it shall remain as a lesser included offense in
robbery in the first degree.
That this dismissal occurred after trial had started and as a ruling in
response to a motion for acquittal, at the close of the state’s evidence, is not an
acquittal in its real sense. The form the judge’s ruling takes is not conclusive.
State v. Taft, 506 N.W. 2d 757, 761 (Iowa 1993). “Rather, a judge’s ruling
constitutes an acquittal if it actually represents a resolution, correct or not, of
some or all of the factual elements of the offense charged.” Id. (citing United
States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 1354, 51 L.
Ed 2d 642, 651 (1977)).
The dismissal of the willful injury charge was a compliance with section
701.9 and an effort to avoid multiple counts. The trial court entered no findings
addressing the elements of willful injury, nor did the motion for acquittal request it
to.
The dismissal did not rise to an acquittal for double jeopardy purposes.
Counsel had no duty to propound an issue that has no merit. Millam v. State,
745 N.W.2d 719, 721-722 (Iowa 2008); State v. Hildebrand, 405 N.W.2d 839,
841 (Iowa 1987).
We conclude McDuffen has failed to show he received ineffective
assistance due to trial or appellate counsel’s failure to raise a double jeopardy
challenge to his conviction of first-degree robbery based on the dismissal, during
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trial, of the lesser-included offense, of willful injury. We affirm the decision of the
district court denying McDuffen’s application for postconviction relief.
AFFIRMED.
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