STATE OF IOWA, Plaintiff - Appellee, vs. JEFFREY DAVID BERRY , Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-1036 / 08-0460
Filed March 26, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEFFREY DAVID BERRY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Poweshiek County, Michael R.
Stewart, District Associate Judge.
Jeffrey Berry appeals the judgment and sentence following his conviction
for indecent contact with a child.
JUDGMENT AFFIRMED; SENTENCE
VACATED AND REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Michael W. Mahaffey, County Attorney, and Rebecca L. Petig, Assistant
County Attorney, for appellee.
Heard by Sackett, C.J., and Potterfield and Mansfield, JJ.
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POTTERFIELD, J.
I. Background Facts and Proceedings
Jeffrey Berry lived with his son, daughter-in-law, and two grandsons. He
granted permission to an eight-year-old girl, who was a friend of his grandson, to
spend the night at his house. When she arrived, Berry was the only person
home. The child claimed that she set her things down in the bedroom of one of
Berry’s grandsons and fell onto the bed. She claims that Berry then came over
to her and tickled her on her tummy, then between her legs, then on her toes.
She described that Berry tickled her on the “place where she goes pee” but
explained that she never took her clothes off.
The child then went into the living room. She sat on the couch to watch
television, and Berry lay down on the couch. She stated that Berry put his head
on her lap and rubbed his hands between her legs. She left the room to call her
mom, but no one answered. Soon after, Berry’s grandson came home, and the
two children began to play together. She remained at Berry’s residence the rest
of the night with no further problems.
Berry admitted that he may have touched the child’s legs, but insisted
that any inappropriate touching was purely accidental. The child had a history of
making false allegations, including telling people that a man pointed a gun at her
and making a prior report of sexually inappropriate behavior that was
unfounded.1
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The child’s mother stated that the child’s demeanor in reporting the incident with Berry
was significantly different from when she falsely reported other incidents.
3
Berry was charged with indecent contact with a child in violation of Iowa
Code section 709.12 (2005). He filed a written waiver of his right to a jury trial
and waived the right to a jury trial in open court. He proceeded to a bench trial
on a stipulated record, and the district court found Berry guilty. On February 22,
2008, the district court sentenced Berry to two years in prison but suspended
the sentence and placed Berry on one year of probation. On March 14, 2008,
the district court entered an amended judgment entry imposing the mandatory
special sentence of ten years of parole pursuant to Iowa Code section 903B.2.
Berry appeals from the district court’s finding, arguing: (1) his trial counsel
was ineffective in failing to ensure a knowing and voluntary waiver of Berry’s
state and federal constitutional rights to present a defense and to confront
witnesses and for allowing the case to be submitted without any meaningful
adversarial testing; and (2) the district court erred in imposing a special
sentence without setting a new sentencing hearing.
II. Standard of Review
We review Berry’s claim regarding his Sixth Amendment right to
reasonably effective assistance of counsel de novo. State v. Wills, 696 N.W.2d
20, 22 (Iowa 2005). Generally, we review sentencing procedures for an abuse
of discretion. State v. Wright, 340 N.W.2d 590, 592 (Iowa 1983). We review
Berry’s claim regarding the legality of his sentence for errors at law. State v.
Davis, 544 N.W.2d 453, 455 (Iowa1996).
III. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance, Berry must prove that (1)
counsel failed to perform an essential duty; and (2) prejudice resulted. State v.
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Simmons, 714 N.W.2d 264, 276 (Iowa 2006). In order to establish the first
element of the test, Berry must show that his counsel’s actions were not
“reasonably competent.”
Id.
There is a strong presumption that counsel
performed in a competent manner. Id. To satisfy the second element of the
test, Berry must show that “there is a reasonable probability that, but for the
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id.
Ordinarily, we preserve ineffective assistance claims for postconviction
relief to allow counsel to more fully develop the facts relating to the disputed
conduct and to respond to defendant’s claims. Berryhill v. State, 603 N.W.2d
243, 245 (Iowa 1999). The trial record is rarely sufficient to resolve ineffective
assistance claims. Id.
A. Waiver of Constitutional Rights
Berry asserts that his counsel was ineffective for failing to ensure a
knowing and voluntary waiver of Berry’s constitutional rights to present a
defense and to confront witnesses. He contends that his counsel should have
insisted upon an in-court colloquy, such as that required by a defendant entering
a guilty plea.
See State v. Sisco, 169 N.W.2d 542, __ 551 (Iowa 1969)
(acknowledging the applicability to state guilty plea proceedings of federal due
process standards delineated in Boykin v. Alabama, 395 U.S. 238, 89 S. Ct.
1709, 23 L. Ed. 2d 274 (1969)).
However, the Iowa Supreme Court has
declined to require such procedures in a stipulated bench trial, recognizing that
such a trial is not the same as a guilty plea proceeding. State v. Sayre, 566
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N.W.2d 193, 195-96 (Iowa 1997). The supreme court established the following
requirements for a stipulated bench trial:
[A] trial court must: (1) verify that the defendant has waived his
right to a jury trial in accordance with Iowa Rule of Criminal
Procedure [2.17(1)]; (2) confirm the extent of the factual record to
which the parties are stipulating; and (3) “find the facts specially
and on the record,” separately state its conclusion of law, and
render an appropriate verdict as required by Iowa Rule of Criminal
Procedure [2.17(2)].
Id. Berry acknowledges that the district court complied with this procedure, so
he cannot show that his counsel failed to perform an essential duty.
Berry contends that his counsel could have asked the district court to
adopt a new rule applying Boykin standards to stipulated bench trials. Though
such a colloquy may be good practice, current law does not require these
procedures; therefore, we cannot find that counsel was ineffective for failing to
insist on a colloquy.2 We do not require defense counsel to be a “ʽcrystal gazer’
who can predict future changes in established rules of law in order to provide
effective assistance to a criminal defendant.”
State v. Schoelerman, 315
N.W.2d 67, 72 (Iowa 1982). Because the district court followed the procedures
described in Sayre, we cannot find Berry’s counsel ineffective for failing to urge
safeguards that have not been required by the supreme court.
B. Adversarial Testing
Berry also argues that his counsel was ineffective for agreeing to go to
trial on a stipulated record and for thereby failing to subject the State’s evidence
2
We previously indicated that it is better to separate a colloquy related to a stipulated
trial from the required colloquy for waiver of a jury trial. See, e.g., State v. Taylor, No.
06-1627 (Iowa Ct. App. Dec. 28, 2007).
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to any meaningful adversarial testing. To support this claim, Berry must show
that counsel failed to perform an essential duty by stipulating to the State’s case.
If he is able to demonstrate a “complete failure by counsel,” the element of
prejudice will be presumed. State v. Boggs, 741 N.W.2d 492, 507 (Iowa 2007).
The record contains at least a partial explanation by Berry’s counsel of
his decision to proceed with a trial on a stipulated record. A review of this
conversation with the district court reveals that counsel hoped “to avoid a lot of
unnecessary evidentiary complication in trying to sift out from all of this
information what a jury should and shouldn’t hear.” Counsel listed some of the
evidentiary problems, which included the difficulty of: (1) cross-examining the
officer who talked to Berry; (2) redacting the video tape of Berry’s interrogation;
(3) cross-examining the alleged victim; and (4) presenting a prior false report by
the alleged victim. Finally, counsel expressed his confidence “that the judge
knows all the evidentiary rules and will make the appropriate decisions
regarding the evidence.”
“Improvident 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). Although defense counsel considered many
factors relevant to the evidentiary issues, the record is inadequate to allow us to
determine whether the waiver of cross-examination and objections at a bench
trial was a failure to perform an essential duty. Because the record is not fully
developed, we preserve for possible postconviction relief Berry’s ineffective
assistance claim alleging counsel’s failure to test the State’s case.
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IV. Sentencing
Berry argues that the district court did not have jurisdiction to impose the
special sentence and should not have done so without Berry’s presence.
Generally, a defendant has a right to personally address the court and make a
statement in mitigation of punishment. State v. Lumadue, 622 N.W.2d 302, 304
(Iowa 2001).
However, this requirement is not applied to all sentencing
proceedings. State v. Cooley, 691 N.W.2d 737, 740 (Iowa Ct. App. 2004). One
exception states that a defendant need not be present at a sentencing hearing
to reduce an illegal sentence. Iowa R. Crim. P. 2.27(3)(b). The Iowa Supreme
Court expanded this exception, determining that a defendant need not attend a
hearing to correct a sentence when the dispositions would not be significantly
aided by the defendant’s presence. State v. Austin, 585 N.W.2d 241, 245 (Iowa
1998). However, the supreme court has required a defendant’s presence at
proceedings imposing a new and different sentence. State v. Johnson, 222
N.W.2d 453, 458 (Iowa 1974).
The Iowa Court of Appeals recently considered a similar issue and held
that “a defendant’s presence is not required where a district court is correcting
an existing sentence, so long as the disposition would not be aided by the
defendant’s presence and the modification does not make the sentence more
onerous.” Cooley, 691 N.W.2d at 741. The district court’s amended judgment
imposed an additional sentence of ten years of parole.
Because this
modification made Berry’s sentence more onerous, his presence was required.
Accordingly, the district court erred in imposing the mandatory sentence without
setting a new sentencing hearing with Berry present.
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Because we find error in the imposition of a more onerous sentence
without Berry’s presence, we need not reach Berry’s argument that the district
court lacked authority to exercise jurisdiction over sentencing issues.
JUDGMENT AFFIRMED; SENTENCE VACATED AND REMANDED
FOR RESENTENCING.
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