DAVID SMOTHERS, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-376 / 08-0829
Filed July 2, 2009
DAVID SMOTHERS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Cynthia
Danielson, Judge.
Appellant appeals the postconviction court’s ruling denying his application
for postconviction relief. AFFIRMED.
Jeffrey Lipman, Clive, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney
General, Patrick C. Jackson, County Attorney, and Amy K. Beavers, Assistant
County Attorney for appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
2
VOGEL, J.
David Smothers appeals the postconviction court’s denial of his
application for postconviction relief. On our de novo review, we affirm. Ledezma
v. State, 626 N.W.2d 134, 141 (Iowa 2001).
On July 14, 2004, a jury found Smothers guilty of burglary in the third
degree as a habitual offender in violation of Iowa Code section 713.6A (2003).1
Smothers first asserts his trial counsel was ineffective for failing to request
a change of venue after a short newspaper article about the trial was published
just days before his re-trial.2 The postconviction court found that only one small
article was published, and it was not particularly inflammatory, such that
prejudice would be presumed.
Id. at 142 (holding a defendant must show
prejudice to prevail on an ineffective-assistance-of-counsel claim).
It further
found trial counsel chose not to move for a change of venue because he
considered Des Moines County to be more defense friendly than the neighboring
counties. He discussed this strategy with Smothers and received Smothers’s
approval of the plan. State v. Couser, 567 N.W.2d 657, 659 (Iowa 1997) (stating
the court “will not indulge in nice distinctions concerning trial tactics when they do
not clearly appear to have been misguided”). We agree with the postconviction
court’s findings of no breach of duty or resulting prejudice.
Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984) (holding a defendant must prove both (1) counsel failed to perform an
1
This court affirmed the conviction on direct appeal. State v. Smothers, No. 08-0829
(Iowa Ct. App. August 17, 2005).
2
His first trial ended in a mistrial on June 10, 2004, with the jury unable to reach a
verdict. The news article appeared in the Burlington Hawk Eye on July 6, 2004, with
retrial set for July 13, 2004.
3
essential duty, and (2) prejudice resulted on an ineffective-assistance-of-counsel
claim).
Next, the district court considered Smothers’s assertion that his trial
counsel failed to convey his desire to accept the terms of a plea agreement
offered by the assistant county attorney. The terms included: if Smothers would
plead guilty to a charge of third-degree burglary with a five-year prison sentence,
then the State would not charge him as a habitual offender. Smothers’s trial
counsel testified that although he discussed these terms in person with Smothers
“several times,” and had many conversations with the prosecutor, Smothers
“never” agreed to the terms. Hence the prosecutor amended the trial information
to include the habitual offender status.
In addition, the record includes the
correspondence between Smothers and trial counsel, supporting Smothers’s
refusal to accept the agreement. We affirm the district court’s rejection of this
claim of alleged ineffectiveness.
Having reviewed the record and agreeing with the district court’s fact
findings, reasoning, and conclusions of law, we affirm pursuant to Iowa Rule
21.29(1)(a), (c), (d), and (e).
AFFIRMED.
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