MACK BASS, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-1006 / 09-0407
Filed December 30, 2009
MACK BASS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,
Judge.
Applicant appeals the dismissal of his application for postconviction relief.
AFFIRMED.
Dawn Wilson, Cedar Rapids, and Denise Gonyea, Grinnell, for appellant.
Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Kim Griffith, Assistant
County Attorney, for appellee State.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ.
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MANSFIELD, J.
Mack Bass appeals the dismissal of his petition for postconviction relief.
Bass raises a number of challenges to his conviction for second-degree robbery
in 2003, following a trial on the minutes of testimony. For the reasons stated
herein, we affirm the order of the district court.
I. Background Facts and Proceedings.
On January 21 and 23, 2003, two night-time armed robberies occurred at
a Dell Oil convenience store in Waterloo. According to the minutes of testimony,
on the 21st, Bass arranged for himself and his roommate Darrell Anderson to be
picked up by a former girlfriend, K.F. Bass changed his clothes, explaining to
K.F. that he and Anderson had to go to a gas station. Bass instructed K.F. to
drive them to Dell Oil, stating the trip would not take long. Bass and K.F. stayed
in the car, while Anderson walked over to the convenience store.
According to B.L., who was working that night, a masked man entered and
held a handgun to her head, forcing her to open the drawer and give him all the
cash. B.L. was the mother of Anderson‟s former girlfriend.
When Anderson reappeared outside, Bass told K.F. to drive up to him and
pick him up. After Anderson got in the car, Bass asked him if he got any money.
Although B.L. did not recognize Anderson as the masked gunman, she
remembered that individual speaking with a “low” voice, and she later confirmed
that Anderson had the same physical build as the person captured on the store‟s
surveillance video.
On January 23, 2003, Bass asked a different former girlfriend, R.L.P., to
drive Anderson and himself to the same Dell Oil. This time K.L., the aunt of
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Anderson‟s former girlfriend, was working inside instead of B.L. (K.L.‟s sister-inlaw).
Anderson entered the store in normal clothing without disguising his
identity. He engaged K.L. in friendly conversation and then left the store and
headed back to R.L.P.‟s car.
According to R.L.P., Anderson and Bass had a conversation outside the
car. Thereafter, Bass got back into the car, and Anderson walked back into Dell
Oil. When Anderson saw another customer come into the store, he asked him if
he was a security guard. The customer said he was not and left. A few minutes
later, according to R.L.P., Bass got out of the car and headed toward Dell Oil.
K.L. was at the cash register with Anderson next to her when a masked
man came in. He waved a gun at her and told her loudly, “Give me your money
now!” Anderson repeatedly encouraged K.L. to do exactly what the gunman
said. However, K.L. had trouble getting the cash drawer to open. Meanwhile,
K.L. had activated the silent alarm. The masked gunman apparently noticed this
and headed for the store exit, with Anderson telling K.L. to “leave the cash
drawer open” in case he came back.
R.L.P. reported that Bass came back to the car and told her to go. R.L.P.
questioned Bass as to why he was leaving Anderson behind, and he told her to
“just go.” R.L.P. noticed that Bass was putting something in his pants. Later
Bass pulled out the gun and told R.L.P. “he was going to rob the store but he saw
the woman push the button and just wanted to get out [of] there.”
When the police arrived at the Dell Oil, Anderson was still there.
He
explained that he had come back into the store and remained with K.L. because
she had told him “she was afraid of working alone,” a claim disputed by K.L.
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The next day, after both R.L.P. and Anderson had given statements to the
police incriminating Bass, Bass was arrested.
Under videotaped police
questioning, Bass eventually admitted he had been in the Dell Oil store the
previous night and had attempted to rob it with a BB pistol, although he claimed
Anderson had pressured him to do so. Items of clothing and a pellet gun used in
the robbery were subsequently recovered.
Bass was charged with first-degree robbery in violation of Iowa Code
sections 711.1 and 711.2 (2003) in connection with the January 23, 2003
robbery. He filed a motion to suppress, claiming the Miranda warning he had
received was defective. The district court denied the motion, and a jury trial was
set for July 15, 2003.
That morning, a hearing took place in chambers with the attorneys and
Bass present. The district court stated on the record that it had learned of a plea
offer that Bass could plead guilty to the lesser-included offense of second-degree
robbery and the State would recommend a mandatory minimum of seventy
percent rather than eighty-five percent. As part of the proposed agreement, the
State would not attempt to charge Bass for the January 21 robbery. The court
explained that it had reviewed the minutes of testimony and suggested to Bass
that he seriously consider this proposal. However, the court added that it had
made one additional suggestion to which the attorneys were agreeable:
[T]hat was, if they were interested, I was willing to have Mr. Bass
submit this case on the minutes of testimony rather than plead
guilty. I explained to Mr. Bass that the effect of that would be, first
of all, I would find him guilty based on what I found in the minutes. I
would find him guilty of second degree robbery because that‟s the
agreement of the parties, and I would bind myself to accept the
state‟s recommendation that the mandatory minimum sentence
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would be 70 percent rather than 85 percent. The difference which I
think is important to Mr. Bass is that by doing it in this matter he
preserves for appellate review the ruling which was made on the
motion to suppress. Whereas if he pled guilty, he would lose that;
he would lose the ability to appeal on that issue and have that issue
determined by an appellate court.
Subsequently, Bass waived his right to a jury trial and stipulated to a trial on the
minutes of testimony. The court filed a “trial memorandum” stating,
The defendant submitted the case to the court to be tried on the
minutes of testimony. This has the effect of preserving the
suppression issue for appeal. The defendant submitted the case
on the minutes with the understanding that the court will find him
[guilty] of the offense of robbery in the second degree.
Eight days later, the court filed a verdict finding Bass guilty of second-degree
robbery. Bass was sentenced to a term of imprisonment not to exceed ten years
with a seventy percent mandatory minimum.
Bass appealed the denial of his motion to suppress. This court affirmed.
State v. Bass, No. 03-1659 (Iowa Ct. App. Dec. 22, 2004). Subsequently, Bass
applied for postconviction relief. Bass‟s application, as amended, asserted that
he received ineffective assistance of trial and/or appellate counsel (1) when
counsel failed to raise the issue that Bass “was not informed of the ramifications
of waiving his right to a jury trial,” (2) when counsel failed to raise the issue that
the jury would not have been allowed to consider the testimony of a codefendant
(Anderson) without further proof of guilt, (3) when counsel refused to conduct
depositions, and (4) when counsel refused to review videotapes.
On January 26, 2009, the district court held an evidentiary hearing on
Bass‟s application for postconviction relief. The district court found Bass had
properly waived his right to a jury trial. The district court further noted that by
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doing so, Bass received a benefit, in that he was able to take advantage of the
State‟s plea offer while preserving his right to appeal the denial of the motion to
suppress. On the accomplice issue, the district court found there was a large
amount of other evidence against Bass in addition to Anderson‟s potential
testimony.
Thus, knowing he could not be convicted only on Anderson‟s
testimony “would not have been of any benefit to [Bass] or changed the outcome
in this case.”
Finally, the district court found that Bass‟s trial counsel had
personally reviewed the entire prosecution file in the case, including the
videotapes, that he had interviewed the witnesses, and stated “there is no
evidence that the taking of depositions would have revealed anything to
Petitioner‟s attorney that he did not already know or that would have been
beneficial at trial.” Accordingly, the district court dismissed the application. Bass
appeals.
II. Standard of Review.
We review Bass‟s ineffective-assistance-of-counsel claims de novo. See
Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). We give weight to the
district
court‟s
factual
findings,
especially
when
concerning
credibility
assessments. Id.
III. Analysis.
In order to prevail on an ineffective-assistance-of-counsel claim, a
defendant is required to show by a preponderance of the evidence that
(1) counsel failed to perform an essential duty and (2) prejudice resulted.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674, 693 (1984); Ledezma, 626 N.W.2d at 142. “Failing to perform an essential
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duty means counsel„s performance fell outside of the normal range of
competency.” State v. McCoy, 692 N.W.2d 6, 14 (Iowa 2005). To establish
prejudice, a “defendant must show that there is a reasonable probability that, but
for counsel„s unprofessional errors, the result of the proceedings would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80
L. Ed. 2d at 698. Although defendant is required to prove both elements, we do
not always need to address both elements. Ledezma, 626 N.W.2d at 142. If a
claim lacks prejudice, the claim may be decided on that ground alone without
deciding whether the attorney performed deficiently. Id.
Bass‟s principal argument on appeal is that he entered either a guilty plea
or a forbidden “hybridization” of a guilty plea and a stipulated bench trial on July
15, 2003, see State v. Nikkel, 597 N.W.2d 486, 486 (Iowa 1999), without the
court having complied with the Iowa Rule of Criminal Procedure 2.8(2)(b)
requirements for guilty pleas. As Bass points out, the district court advised him
at the July 15, 2003 hearing and in its trial memorandum that it was going to find
Bass guilty based on the minutes of testimony. Thus, Bass submits that his
actions on July 15 really amounted to a plea of guilty. He was giving up any
claim of innocence.
However, we agree with the State that this claim should be rejected for
two reasons. First, this is not a claim Bass asserted below in his application for
postconviction relief. Bass‟s claim below was that he “was not informed of the
ramifications of waiving his right to a jury trial.” The district court rejected that
contention as not supported by the record, and we reject it as well. Bass did not
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advance his current argument, namely, that he had entered a de facto plea of
guilty without receiving the procedural protections applicable to such pleas.
Unsurprisingly, the district court did not rule on this unraised claim, since it had
no opportunity to do so. We thus hold that Bass‟s current claim is not properly
before us. See State v. Lewis, 675 N.W.2d 516, (Iowa 2004) (discussing that on
appeal we will not decide a case based upon a ground, even a constitutional
ground, not raised by a party in the district court); DeVoss v. State, 648 N.W.2d
56, 63 (Iowa 2002) (holding that an appellate court will not consider an issue
raised for the first time on appeal).
Even if the claim were before us, we would not find it meritorious. The fact
is: Bass did not plead guilty. Had he done so, he would not have been able to
appeal the denial of his motion to suppress. See Nikkel, 597 N.W.2d at 487
(noting that a suppression ruling cannot be reviewed where the defendant pleads
guilty). Having received the benefits of appellate review on the denial of his
motion to suppress, Bass is ill-positioned to argue that he actually pled guilty.
It is true that the district court told Bass it had already reviewed the
minutes and was going to find him guilty. As a practical matter, though, a guilty
verdict is frequently a foregone conclusion when the defendant stipulates to trial
on the minutes. Often, the only purpose of such a trial is to preserve the right to
appellate review of a denial to motion to suppress. See State v. Andrews, 705
N.W.2d 493, 498 (Iowa 2005). However, our supreme court has repeatedly held
that a guilty plea colloquy is not required before the court accepts such a
stipulation. See State v. Sayre, 566 N.W.2d 193, 195 (Iowa 1997); State v.
Everett, 372 N.W.2d 235, 237 (Iowa 1985).
If anything, the district court‟s
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statements to Bass benefited him by letting him know exactly where he stood.
Moreover, the district court subsequently entered detailed findings of fact,
conclusions of law, and a verdict. It is clear that the district court based its
verdict on the minutes and Bass has never claimed that the verdict was not
supported by the minutes.
See Everett, 372 N.W.2d 237 (holding “it still
remained for the finder of fact to determine whether the elements of the offense
were shown beyond a reasonable doubt”).
Bass‟s argument that he entered into a de facto plea of guilty, thus
necessitating a guilty plea colloquy, is essentially the same argument that our
supreme court rejected in Everett.
The defendant there urged that his prior
stipulation to a trial on the minutes had the “practical impact” of a guilty plea and
was “the same as” a guilty plea. 372 N.W.2d at 235-36. The court, however,
declined to follow those federal cases that had required a guilty plea colloquy
when the factual stipulation was “the functional equivalent of a guilty plea.” Id. at
236-37.
Instead, it decided to follow a different and more numerous line of
federal cases that did not impose such a requirement even when the stipulation
constituted a “de facto plea[] of guilty.”
Id. at 237 (quoting United States v.
Terrack, 515 F.2d 558, 561 n.3 (9th Cir. 1975)). While Everett, and later Sayre,
mentioned there could be an “extreme” case requiring a colloquy, such as when
the defendant stipulates that the “evidence was sufficient to convict,” Everett, 372
N.W.2d at 237; Sayre, 566 N.W.2d at 195-96, we do not have such an extreme
case here. Bass did not stipulate that the evidence was sufficient to convict, and
the district court had to go ahead and determine that it would be sufficient to
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convict. In short, even if Bass‟s guilty plea argument were properly before us, we
would not find it to be of merit.
Bass‟s remaining arguments on appeal are not substantial. There was
considerable evidence of Bass‟s guilt apart from any testimony Anderson might
have provided. This included Bass‟s own videotaped confession, the anticipated
testimony of K.F. and R.L.P., the Dell Oil surveillance video, Bass‟s clothing, and
the gun. As Bass testified during the postconviction hearing, “I had no defense.”
Thus, any alleged failure to advise Bass about the accomplice corroboration rule
did not prejudice him. Also, we agree with the district court that Bass‟s trial
counsel prepared appropriately for trial, and there is no evidence Bass was
prejudiced by any lack of preparation.
For the foregoing reasons, we affirm.
AFFIRMED.
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