MARK LEON KEMP, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-787 / 08-0937
Filed November 12, 2009
MARK LEON KEMP,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Richard G. Blane II,
Judge.
Applicant Mark Leon Kemp appeals from the denial of his application for
postconviction relief. AFFIRMED.
Angela Y. Gruber-Gardner, Johnston, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney
General, John P. Sarcone, County Attorney, and Susan Cox, Assistant County
Attorney, for appellee.
Considered by Sackett, C.J., Vaitheswaran, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
2
SACKETT, C.J.
Appellant, Mark Leon Kemp, was convicted, following a jury trial, of
criminal mischief in the third degree in violation of Iowa Code sections 716.1 and
716.5 (2005); burglary in the third degree as an habitual offender in violation of
sections 713.1, 713.6A, 902.9(3), and 902.8; and theft in the second degree as
an habitual offender in violation of sections 714.1(4), 714.2(2), 902.9(3), and
902.8.1 In this postconviction proceeding, Kemp contended that his trial and
initial appellate attorneys were ineffective. The district court denied all claims
and this appeal follows. We affirm.
SCOPE OF REVIEW. Ineffective assistance of counsel claims involve a
constitutional challenge and we therefore review them de novo. State v. Ray,
516 N.W.2d 863, 865 (Iowa 1994).
BACKGROUND. The facts are not seriously disputed. On May 31, 2005,
Kristina Jackson came from work to find there had been a break-in at her home.
A lock on a window had been broken and a couch under the window had been
damaged where the intruder apparently had sought to break his fall. Jackson
also noticed a computer and monitor were taken. A neighbor of Jackson’s was
home over the noon hour and saw a person near the Jackson residence carrying
a garbage bag. She also saw the person pick up something that resembled a
small television set. She became suspicious, called the police, and went outside
to investigate. She saw a man from a distance of twenty to twenty-five feet
whom she later identified as the defendant. Investigating officers came to the
1
He appealed to this court and we affirmed the convictions but remanded for
resentencing.
3
area, located Kemp, and put him in a police car with the window down. A balled
wad of women’s jewelry landed at the feet of an officer standing outside the car
from the general direction of where Kemp waited in the car. Officers also found
jewelry underneath the back seat where the officers had put Kemp. Jackson
identified the jewelry as hers.
In Kemp’s initial appeal to this court he contended that the district court
erred in failing to suppress certain evidence. We affirmed on this issue. He also
claimed the district court erred in imposing a $750 fine on each of his two
convictions as a habitual offender. The State conceded that the trial court erred
in imposing the two fines of $750 each; we vacated them and remanded the case
for resentencing.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS. Kemp next filed
for postconviction relief, contending that his counsel was ineffective. The district
court in a well-written and extensive opinion denied all of his claims. Kemp’s
attorney on appeal contends that his trial counsel was not effective when he
failed argue there was not substantial evidence to prove beyond a reasonable
doubt that Kemp had the required intent to convict him of criminal mischief.
Kemp in a pro-se brief makes two additional claims of ineffective assistance.
To prevail on ineffective assistance of counsel claims, Kemp has the
burden of proving by a preponderance of the evidence that “(1) counsel failed to
perform an essential duty, and (2) prejudice resulted.”
N.W.2d 204, 207 (Iowa 1983).
Meier v. State, 337
With regard to the first prong, Kemp “must
overcome the presumption that counsel was competent and show that counsel’s
4
performance was not within the range of normal competency.” State v. Buck,
510 N.W.2d 850, 853 (Iowa 1994). With regard to the second prong, Kemp must
show “a reasonable probability exists that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Wemark v. State,
602 N.W.2d 810, 815 (Iowa 1999). We may dispose of ineffective assistance of
counsel claims if an applicant fails to prove either of these prongs. State v.
Cook, 565 N.W.2d 611, 614 (Iowa 1997).
INTENT TO COMMITT CRIMINAL MISCHIEF. Kemp’s attorney contends
that the district court erred in not finding Kemp’s trial counsel ineffective for failing
to challenge the State’s alleged failure to establish the required intent to support
a conviction of criminal mischief.
She argues that criminal mischief requires
proof of specific intent to damage, deface, alter, or destroy property. She further
argues that there was no evidence Kemp intended to do damage and the
evidence did not show the damage he did to be $500 dollars or more.
There is evidence that Kemp did the following to Jackson’s property: (1)
broke a window lock, (2) tore a couch, and (3) dropped a computer monitor and
tower breaking them. There also was evidence establishing the damage caused
by Kemp was more than $2000.
Criminal mischief is defined under Iowa Code section 716.1 as:
Any damage, defacing, alteration, or destruction of property
is criminal mischief when done intentionally by one who has not
right to so act.
5
The evidence was sufficient to support a finding beyond a reasonable
doubt that Kemp intentionally and with malicious intent broke a window lock to
enter Jackson’s house, used the couch to break his fall on entering the house
and dropped the computer, and he did damage well in excess of $500. 2 Kemp’s
trial counsel did not render ineffective assistance of counsel.
Kemp raises two issues in his pro-se brief. He first contends that the
district court erred in not finding his trial counsel ineffective in failing to argue that
“the State did not establish principles rooted in nunc pro tunc common law and
Constitutional jurisprudence.” His argument seems to be that he could not be
punished for three separate offenses and that the three offenses are lesserincluded offenses of the other.
The three offenses are not lesser-included
offenses of the other as each of the three contains an element not required of the
other offenses. Burglary in the third degree, section 713.2, requires entering an
occupied structure. Criminal mischief in the third degree, section 716.1, requires
damaging, alteration, defacing, or destruction of property. Theft in the second
degree, section 714.1, requires taking possession of property. Consequently,
Kemp’s trial counsel had no duty to ask that the sentences be merged.
Kemp’s second argument appears to address his attorney’s failure to
challenge our earlier decision denying his motion to suppress.
Issues that have been raised, litigated, and adjudicated on direct appeal
cannot be relitigated in postconviction proceedings. See Wycoff v. State, 382
N.W.2d 462, 465 (Iowa 1986).
2
Kemp was convicted of criminal mischief in the third degree, which requires the cost of
replacing, repairing, or restoring the property to exceed $500 but not $1000.
6
We have considered the other arguments in Kemp’s pro-se brief and find
them to be without merit.
AFFIRMED.
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