STATE OF IOWA, Plaintiff - Appellee, vs. ROBERT ALAN FRY, Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-708 / 07-1302
Filed October 29, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ROBERT ALAN FRY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Gary D. McKenrick,
Judge.
Robert Alan Fry appeals his conviction for burglary in the third degree.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney
General, Michael Walton, County Attorney, and Jerald Feuerbach, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Potterfield, JJ.
2
MILLER, J.
Robert Alan Fry appeals his conviction for burglary in the third degree in
violation of Iowa Code section 713.6A (2007). He claims his trial counsel was
ineffective for: (1) presenting evidence of his prior conviction for burglary, failing
to object to the State presenting evidence on this conviction, and not requesting
a court determination on the prejudicial effect of such evidence; (2) failing to
object and move for mistrial when the prosecutor made an improper comment on
Fry’s post-arrest silence; and (3) failing to object to and move for mistrial during
closing arguments based on the State’s comments on Fry’s credibility. The State
argues that one or more of Fry’s claims involved a reasonable trial strategy by
defense counsel and thus no breach of duty occurred, and that Fry failed to show
resulting prejudice on any of his three claims.
In order to prevail on his claims of ineffective assistance of counsel, Fry
must show (1) counsel failed to perform an essential duty, and (2) prejudice
resulted. See State v. Lane, 726 N.W.2d 371, 393 (Iowa 2007). We evaluate the
totality of the relevant circumstances in a de novo review. Id. at 392. Generally,
we do not resolve claims of ineffective assistance of counsel on direct appeal.
State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002).
We prefer to leave
ineffective-assistance-of-counsel claims for a postconviction relief proceeding.
State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001). Such a proceeding allows an
adequate record of the claim to be developed “and the attorney charged with
providing ineffective assistance may have an opportunity to respond to
defendant’s claims.” Biddle, 652 N.W.2d at 203.
3
An adequate record is important because “[i]mprovident trial strategy,
miscalculated tactics, mistake, carelessness or inexperience do not necessarily
amount to ineffective counsel.” State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981).
A defendant is not entitled to perfect representation, but rather only that which is
within the range of normal competency. State v. Artzer, 609 N.W.2d 526, 531
(Iowa 2000).
Fry’s trial attorney has had no opportunity to explain her strategy and
actions. At least the first of Fry’s claims may involve trial strategy, interpretation
and application of a rule of evidence and case law, and potential prejudice to Fry.
This is not the “rare case” which allows us to decide that claim on direct appeal.
See State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006). We therefore preserve
that claim for a possible postconviction proceeding, and in the interest of judicial
economy preserve Fry’s other two claims as well.
AFFIRMED.
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