MARK WAYNE GEAR, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.Annotate this Case
IN THE COURT OF APPEALS OF IOWA
No. 9-427 / 08-1150
Filed July 2, 2009
MARK WAYNE GEAR,
STATE OF IOWA,
Appeal from the Iowa District Court for Hardin County, Carl D. Baker,
Applicant appeals following the district court’s denial of his application for
postconviction relief. AFFIRMED.
John J. Haney of Hinshaw, Danielson, Kloberdanz & Haney, P.C.,
Marshalltown, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett and Douglas
Hammerand, Assistant Attorney Generals, and Randall J. Tilton, County
Attorney, for appellee State.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
Mark Gear appeals following the district court’s denial of his application for
postconviction relief. We affirm.
I. Background Facts and Proceedings.
Gear was convicted of attempted murder in violation of Iowa Code section
707.11 (2001) in January 2002. On direct appeal, this court summarized the
facts leading to Gear’s conviction as follows:
In the late evening hours of August 18, 2001, Tony Silvey
went to Brewsky’s Lounge in Iowa Falls. After drinking and
socializing for a time, he went to the bathroom. Silvey heard
someone enter the bathroom behind him and say, “Remember me,
old man?” Silvey turned and saw Mark Gear . . . .
. . . Silvey stated, “I'll be right with you.” Silvey finished at
the urinal and turned to approach Gear. A man then entered the
bathroom and Gear told him to leave. Now alone again with Silvey,
Gear, with a beer bottle in hand, swung and struck Silvey on the
side of the neck shattering the bottle. Silvey reacted by grabbing
Gear by the hair and shoving him against the wall in an attempt to
subdue him. At some point, Gear began wielding a knife and
stabbed Silvey several times. When another man entered the
bathroom, Gear fled with the knife.
State v. Gear, No. 02-0071 (Iowa Ct. App. Mar. 26, 2003). We affirmed Gear’s
conviction, determining substantial evidence supported the jury’s finding that
Gear attempted to murder Silvey and rejecting an ineffective-assistance-ofcounsel claim. Id.
Gear filed an application for postconviction relief on April 22, 2004. In that
application, Gear argued his trial counsel was ineffective in several respects,
including his alleged failure to investigate and assert insanity and diminished
responsibility defenses based on Gear’s mental health and intoxication. At the
hearing on his application, Gear testified that in the days before his fight with
Silvey, he “was on methamphetamine and drunk out of my mind . . . . I was
hallucinating by then.” He further testified that he was diagnosed with “explosive
behavioral disorder, major depression, and ADHD” in 1995, and that after his
conviction, he was additionally diagnosed with “Huntington’s chorea” and
Gear did not present any medical records or expert testimony to
support his testimony regarding these diagnoses.
Following the hearing, the district court denied the postconviction
application in a detailed written ruling. Gear appeals. He claims the court erred
in finding he did not receive ineffective assistance of counsel and denying his
application for postconviction relief. He argues his trial counsel was ineffective
for failing to explore defenses based on his “severe mental health condition, as
well as alcohol and drug use.”1
II. Scope and Standards of Review.
We typically review postconviction relief proceedings on error. Ledezma
v. State, 626 N.W.2d 134, 141 (Iowa 2001). When the applicant asserts a claim
of constitutional nature, such as ineffective assistance of trial counsel, we
evaluate the totality of the circumstances in a de novo review. Id.
Gear additionally asserts his trial counsel was ineffective for failing to secure a medical
expert to testify “that the injuries to the victim were not life threatening . . . in addition to
showing his use of the knife was defensive in nature.” The district court did not address
this issue in its ruling denying Gear’s postconviction application, and Gear did not ask
the court to enlarge or expand its findings and rulings following trial. Therefore, error
was not preserved. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (“[W]e will not
consider a substantive or procedural issue for the first time on appeal . . . .”); Starling v.
State, 328 N.W.2d 338, 341 (Iowa Ct. App. 1982) (stating a motion pursuant to Iowa
Rule of Civil Procedure 1.904(2) is essential to preserve error when a “trial court fails to
resolve an issue, claim, defense or legal theory properly submitted for adjudication”).
In order to establish his trial counsel was ineffective, Gear must show both
that his attorney failed in an essential duty and that the failure resulted in
prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674, 693 (1984). We may resolve the claim on either prong. Id. at
697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699.
The test we employ for the first element is objective: whether counsel’s
performance was outside the range of normal competency. State v. Kone, 557
N.W.2d 97, 102 (Iowa Ct. App. 1996). We start with a strong presumption that
counsel’s conduct was within the “wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
Miscalculated trial strategy and mistakes in judgment usually do not rise to the
level of ineffective assistance of counsel. State v. Wissing, 528 N.W.2d 561, 564
The record shows that Gear’s trial counsel, James Beres, was aware of
Gear’s mental health history and substance abuse but decided not to pursue
defenses based on those conditions. Beres explained that Gear
never expressed any lack of memory for the events that happened .
. . with Tony Silvey. He never expressed any confusion. He never
reported any—any delusions about it. He never—really, he always
presented it fairly straight forwardly as a case of self-defense.
He did not report to me that he was using methamphetamine
on the day of the fight at the bar in Brewsky’s . . . . And once again
he never reported to me any symptoms of mental illness that day.
His memory of events was very clear.
. . . I mean, he’s reporting to me that he has ADHD, ADD,
explosive behavioral disorder and depression. You know, he’s not
reporting that he’s schizophrenic. He’s not reporting that he’s
delusional. He’s not reporting that he has any lapses of memory.
. . . He’s not reporting anything at all that would be
consistent with an inability to form a specific intent.
In order to establish a defense based on insanity, Beres would have had
to prove that at the time of the crime, Gear suffered from “such a diseased or
deranged condition of the mind” as to render him “incapable of knowing the
nature and quality of the act [he] is committing or incapable of distinguishing
between right and wrong in relation to that act.” Iowa Code § 701.4. Gear
presented no evidence supporting the viability of such a defense at the hearing
on his postconviction application. See State v. Griffin, 691 N.W.2d 734, 737
(Iowa 2005) (“[C]ounsel has no duty to raise an issue that has no merit.”); see
also Anfinson v. State, 758 N.W.2d 496, 502 (Iowa 2008) (determining attorney
did not breach a duty in failing to investigate or present an insanity defense
based on postpartum depression because defendant did not present any
evidence at the postconviction hearing supporting that defense).
Gear likewise presented no evidence aside from his self-serving testimony
regarding his mental health history and intoxication that would support a
diminished responsibility defense.
See Anfinson, 758 N.W.2d at 502 (“The
diminished responsibility defense allows a defendant to negate the specific intent
element of a crime by demonstrating due to some mental defect she did not have
the capacity to form that specific intent.”).
The mere fact that Gear had past
mental health diagnoses and used methamphetamine in the days preceding his
fight with Silvey does not mean he was incapable of forming the requisite intent
for attempted murder. See, e.g., Pettes v. State, 418 N.W.2d 53, 55, 57 (Iowa
1988) (rejecting ineffective-assistance-of-counsel claim where trial counsel chose
not to assert a diminished responsibility defense based on defendant’s diagnosis
of “adult situational stress with moderately severe depression”).
testified, Gear gave him no reason to believe “that he was suffering from a
mental illness at [the time of the offense], that he didn’t have a clear memory of
what happened and that he had any difficulty forming a specific intent.” See
State v. Stewart, 445 N.W.2d 418, 421 (Iowa Ct. App. 1989) (“In assessing the
reasonableness of an attorney’s action we consider the attorney’s actions may
be determined or substantially influenced by defendant’s own statements or
Furthermore, counsel’s duty to investigate is not limitless and is partly
judged by the theory of defense chosen. Schrier v. State, 347 N.W.2d 657, 66263 (Iowa 1984). “[R]easonable strategic considerations may justify the rejection
of one theory of defense in favor of another theory reasonably perceived by
counsel to be in the accused’s best interest.” Anfinson, 758 N.W.2d at 501.
Beres testified that after conferring with Gear, he chose to concentrate on Gear’s
assertion that he was acting in self-defense, which he explained would have
been a “complete defense if the jury [had bought] it.” See State v. Wilkens, 346
N.W.2d 16, 18 (Iowa 1984) (“Justification is a complete defense.”). The defense
of diminished responsibility, on the other hand, is only relevant to the element of
specific intent. Id. at 18-19. Beres additionally testified that in his experience,
juries did not always respond favorably to intoxication defenses. See Pettes, 418
N.W.2d at 56-57 (citing counsel’s prior lack of success in asserting diminished
responsibility defenses in finding counsel performed within the range of normal
In light of the foregoing, we believe counsel’s decision to present a
justification defense was a reasonable one based on trial strategy, which we will
not interfere with simply because the chosen strategy did not achieve the desired
result. See Wilkens, 346 N.W.2d at 18 (counsel not ineffective in making sound
tactical decision to emphasize self-defense rather than diminished capacity). We
therefore conclude Beres did not fail in an essential duty to his client in
eschewing defenses based on Gear’s mental state or intoxication.
We deny Gear’s related claim that evidence of his mental state would
have supported the justification defense he presented at trial. Gear relies on our
supreme court’s recent decision in Anfinson in arguing that such evidence would
have “assisted the fact finder in understanding the circumstance as seen by Gear
at the time of the incident, taking into consideration his mental state.”
N.W.2d at 505 (finding counsel performed deficiently in failing to investigate and
present evidence of defendant’s postpartum depression because that evidence
would have supported defendant’s accidental death theory). However, unlike the
postconviction applicant in Anfinson, Gear has presented no evidence—expert or
otherwise—in support of his assertion that evidence of his mental condition
would have explained his actions in fighting with Silvey. See id. at 500, 504
(detailing expert and lay testimony presented by applicant in support of her
We conclude Gear did not show his trial counsel failed to perform an
essential duty in not investigating and asserting defenses based on Gear’s
mental health and intoxication. We therefore affirm the judgment of the district
court denying the application for postconviction relief.