Patrick Conner, Applicant-Appellant v. State of Iowa ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0628
Filed December 23, 2015
PATRICK CONNER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Peter A. Keller,
Judge.
Patrick Conner appeals the district court’s denial of his application for
postconviction relief. AFFIRMED.
Angela Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney
General, for appellee State.
Considered by Potterfield, P.J., Doyle, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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DOYLE, Judge.
Patrick Conner appeals the district court’s denial of his application for
postconviction relief (PCR). Conner contends his arrest warrant was not
supported by probable cause and defense counsel was ineffective in failing to
pursue his motion to suppress evidence seized upon his arrest pursuant to the
warrant. We affirm the district court’s order denying Conner’s application.
I. Background Facts and Proceedings
In 2006, Patrick Conner was on parole and under the supervision of the
Iowa Department of Corrections. Iowa agreed to allow Conner to serve a
sentence on a separate case in Illinois and released Conner to the Illinois
Department of Corrections on detainer pursuant to his parole agreement and an
Interstate Compact agreement.
Conner was released from the Illinois prison in February 2007. He did not
report for parole supervision in Iowa after his release from the Illinois prison. In
October 2007, Conner’s parole officer filed a preliminary parole violation
information, stating Conner “failed to report for parole supervision contrary to the
instructions in his parole order and agreement,” efforts to locate Conner had
been “unsuccessful,” and Conner’s “whereabouts are unknown.”
An Iowa magistrate found probable cause for the issuance of an arrest
warrant. Conner was arrested pursuant to the warrant. Crack cocaine and
marijuana were found in his possession.
The State filed a trial information charging Conner with possession of
crack cocaine with intent to deliver, failure to possess a tax stamp, and
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possession of marijuana as a habitual offender. Conner moved to suppress the
evidence on the ground the arrest warrant was issued without probable cause.
The State responded that its pending plea offer would be withdrawn if the
motion was heard. Conner elected to proceed with a suppression hearing. At
the hearing, Conner changed his mind and withdrew his motion to suppress and
entered a guilty plea to a single count of possession of crack cocaine with intent
to deliver.
Conner filed a PCR application, again alleging the arrest warrant
precipitating his charges lacked probable cause and all evidence seized by virtue
of his arrest was inadmissible. Following a hearing, the district court granted the
State’s motion for summary disposition, concluding, “Because [Conner]
knowingly and intelligently pled guilty, and none of the Constitutional challenges
undermine the validity of that plea, the [State’s] motion for summary judgment
should be granted.”
Conner appealed. On appeal, this court determined fact issues precluded
summary disposition of Conner’s PCR application, stating, “In several filings,
Conner alleged he was coerced into taking the plea and he would have insisted
on going to trial rather than pleading guilty but for counsel’s advice to forego his
motion to suppress. Without an evidentiary record, we cannot determine the
viability of this claim.” Conner v. State, No. 09-1094, 2010 WL 4483912, at *2
(Iowa Ct. App. Nov. 10, 2010). This court reversed the district court’s summary
disposition of Conner’s application and “remand[ed] for an evidentiary hearing on
Conner’s claim that his attorney ‘misadvised him regarding his suppression issue
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and . . . plea counsel’s advice rendered his withdrawal of his suppression motion
and the entry of his guilty plea involuntary and unintelligent.’” Id. at *3.
Following the hearing on remand, the district court entered a ruling
denying Conner’s PCR application, concluding Conner had not proved defense
counsel failed to act as a reasonably competent attorney. Conner appeals.
Additional facts will be set forth below as relevant to the issues raised on appeal.
II. Standard of Review
We review postconviction proceedings for errors at law. See Perez v.
State, 816 N.W.2d 354, 356 (Iowa 2012). However, we conduct a de novo
review of applications for postconviction relief raising constitutional infirmities,
including claims of ineffective assistance of counsel. See State v. Thorndike,
860 N.W.2d 316, 319 (Iowa 2015).
III. Discussion
Conner contends the arrest warrant was not supported by probable
cause,1 defense counsel was ineffective in failing to pursue his motion to
suppress, and had counsel provided effective assistance he would not have pled
guilty.2 To prevail on a claim of ineffective assistance of counsel, Conner must
1
In a related contention, Conner argues his parole officer omitted information from the
parole violation information such that a Franks hearing should have been held. See
Franks v. Delaware, 438 U.S. 154, 164-66 (1978) (requiring a hearing where a
defendant makes a substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included in a search warrant
affidavit, and if the allegedly false statement was necessary to the finding of probable
cause). Under these facts, as will be discussed in more detail below, we do not
conclude the parole violation information contained false statements with reckless
disregard for the truth. Accordingly, defense counsel was not ineffective in failing to
request a Franks hearing. 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.”).
2
As additional support for his claim, Conner contends the Iowa Board of Parole did not
follow its own administrative procedures when parole officer Lauterbach filed the
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show that counsel (1) failed to perform an essential duty and (2) prejudice
resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Dempsey v.
State, 860 N.W.2d 860, 868 (Iowa 2015). To prove the prejudice prong of an
ineffective-assistance-of-counsel claim in the context of a guilty plea, the
applicant must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pled guilty and would have insisted on going to trial.
See State v. Straw, 709 N.W.2d 128, 136 (Iowa 2006). Here, because we
conclude Conner’s claim fails on the breach-of-duty prong, we begin and end our
analysis there.
In November 2006, Conner and his parole officer, Charles Lauterbach,
signed a parole order and agreement and Interstate Compact agreement that
contained seventeen standard conditions of parole and five special terms of
parole. One standard condition, paragraph B, provided that Conner “shall reside
at the place designated in the attached Parole Release Instructions and shall not
preliminary parole violation information, and therefore defense counsel was ineffective
for failing to investigate this issue and pursue with Conner’s motion to suppress.
Specifically, Conner points to Iowa Administrative Code rule 205–11.9(2), which
provides:
Interstate compact parole revocation hearings. If an Iowa parolee was on
parole outside the state of Iowa through the interstate compact on
probation and parole and has been returned to Iowa following a finding of
probable cause in the receiving state, a parole revocation hearing shall be
conducted for the parolee at the Iowa institution at which the parolee is
incarcerated. This hearing shall be conducted according to the same
procedures as those specified for hearings conducted for Iowa parolees
who are on parole in the state of Iowa.
Conner claims that under this rule, the Iowa Board of Parole must have received
information from Illinois that he had violated his parole and then conducted a hearing
before filing the parole violation information. (See Iowa Admin. Code r. 205-11.9(2).)
This provision is inapplicable to this situation. Here, Conner completed his prison
term in Illinois and then failed to report to Iowa. Conner was not “returned to Iowa
following a finding of probable cause in [Illinois].” Id. (emphasis added). Because the
provision is inapplicable to these facts, defense counsel was not ineffective in failing to
pursue the issue. See Griffin, 691 N.W.2d at 737.
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change residence until I receive approval from my supervising officer.”
Paragraph G provided that Conner “shall maintain contact with my supervising
officer as directed and shall not lie to, mislead, or misinform my supervising
officer either by statement or omission of information.” One special condition,
paragraph 806, provided:
I understand that I am being paroled to a detainer filed by
the jurisdiction indicated below. I understand that I normally will be
transported to that jurisdiction and be held in custody until
disposition of the current criminal charges pending against me. If I
am released from custody on the charges which are currently
pending against me, and if I am found guilty of new felony charges
my case must be reviewed by the [Iowa Board of Parole] (chair or
chair’s designee) in order to review the conditions of my parole I will
immediately notify the Iowa Interstate Compact Office, 510 E. 12th
Street, Des Moines, IA 50319 (515)725-6725. I understand that
failure to contact this office within twenty-four (24) hours of my
release will be a sufficient cause for revocation of my parole.
ILLINOIS
The parole order and agreement directed that Conner would not be
released on parole until he signed the agreement. It further provided that the
agreement was “in effect until [Conner was] discharged from parole.”
Conner was released from the Illinois prison in February 2007, but
thereafter failed to report for parole supervision in Iowa. As of October 2007,
Conner’s parole officer was unaware of his location.
A parole officer having probable cause to believe that any person
released on parole has violated the parole plan or the conditions of
parole may arrest such person, or the parole officer may make a
complaint before a magistrate, charging such violation, and if it
appears from such complaint, or from affidavits filed with it, that
there is probable cause to believe that such person has violated the
parole plan or the terms of parole, the magistrate shall issue a
warrant for the arrest of such person.
Iowa Code § 908.1 (2007).
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In October 2007, parole officer Lauterbach filed a preliminary parole
violation information, stating, “The defendant is accused of the violation of
conditions of parole established under Sections 906.1 and 906.5, Code of Iowa.”
The parole violation information further stated:
Special Condition 806. On 12/13/2006 subject was paroled from
Newton Correctional Facility to an Illinois Department of
Corrections Detainer. On 2/16/2007 subject was released from the
Illinois Department of Corrections upon expiration of his sentence in
that State. Subject failed to report for parole supervision contrary to
the instructions in his parole order and agreement. All efforts to
locate subject have been unsuccessful and his whereabouts are
unknown. Based on this information it is respectfully recommended
that an arrest warrant be issued for subject and when apprehended
subject be returned to Polk County, Iowa, to face parole revocation
proceedings.
The magistrate found probable cause for the issuance of an arrest warrant, and
Conner was subsequently arrested pursuant to the warrant.
At the evidentiary hearing on Conner’s PCR application, defense counsel
testified he understood Conner’s “cornerstone argument” to be that paragraph
806 of the parole agreement Conner signed did not require him to notify the Iowa
Board of Parole or his parole officer in Iowa of his release from the Illinois prison,
and that he was only required to notify Iowa authorities “in the event he received
new felony charges.” Defense counsel testified it was “readily apparent” from
Conner’s parole agreement that Conner was to contact his Iowa parole officer
within twenty-four hours of his release from the Illinois prison, and therefore “it
appeared pretty clear . . . there was a sufficient basis for the issuing of the
warrant.” Based on these facts, defense counsel believed Conner’s motion to
suppress on that ground would fail. Conner testified he would not have pled
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guilty had defense counsel looked into the arrest warrant and parole violation
issues he raised in his motion to suppress.
A warrant is valid where the issuing judge had a substantial basis for
concluding probable cause existed. See State v. Gogg, 561 N.W.2d 360, 363
(Iowa 1997). “In determining whether a substantial basis existed for a finding of
probable cause, we are limited to consideration of only that information, reduced
to writing, which was actually presented to the [judge] at the time the application
for warrant was made.” Id. Great deference is given to the issuing judge’s
finding of probable cause and challenges to warrants are resolved in favor of
upholding the warrant. See id.Here, the information in the parole violation information provided the
magistrate with a substantial basis for concluding probable cause existed that
Conner was in violation of his parole agreement. Under these facts and
circumstances, we conclude defense counsel reasonably believed Conner’s
motion to suppress evidence on the ground the arrest warrant was issued without
probable cause would fail. In light of the lengthy imprisonment Conner faced if
he was convicted at trial, counsel’s advice to Conner to accept the State’s plea
offer was reasonable and competent. As defense counsel testified:
I strongly recommended that he accept the plea offer, and the
reason for that was two-fold. One, I did not think the plea offer was
going to stick around for very much longer, and if he pursued the
motion to suppress any further, that the plea offer would be
rescinded, and he would be facing a significant amount of time in
custody. And, two, I believed that if he pursued the motion to
suppress, that we would not be successful.
In denying Conner’s claim, the district court stated:
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The Court’s review of the arrest warrant supports Conner’s
claim that the magistrate did not have his parole agreement before
her when she issued the warrant. Therefore, Conner’s claim that
[the magistrate] misinterpreted the parole agreement would not
have had any bearing on the magistrate’s probable cause
determination because probable cause is based on the information,
reduced to writing, which the court actually had before it. The
parole officer provided information that the Illinois Department of
Corrections had released Conner, and he failed to report for
supervision. Section 908.1 only requires a “complaint” or
“affidavits” from the parole officer charging a parole violation. The
magistrate had the Preliminary Parole Violation Information before
her, which the reviewing court likely would have found was a
substantial basis to support probable cause. Counsel evaluated
the facts of Conner’s parole agreement and the arrest warrant and
came to the reasonable conclusion that there was not a meritorious
motion to suppress the arrest warrant that he should pursue.
Counsel also testified that if Conner had followed through
with the motion to suppress, the State would have rescinded its
plea offer, and he would have been facing a much longer
imprisonment if convicted at trial. Additionally, the assistant county
attorney at his plea hearing stated that he had discussed with
Conner’s counsel that [the State] would not pursue an uncharged
count in exchange for Conner’s plea of guilty. Considering that
Conner would have faced up to thirty years in prison if a jury
convicted him at trial, and possibly additional charges if he did not
take the plea agreement, his counsel reasonably advised him to
take the plea deal. Therefore, the Court finds that Conner has not
proven that his counsel failed to act as a reasonably competent
attorney.
(Citations omitted.)
“Representation is presumed competent and a defendant has the burden
to prove by a preponderance of the evidence that counsel was ineffective.”
Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). “[C]ounsel has no duty to raise
an issue that has no merit.” Griffin, 691 N.W.2d at 737. Under these facts and
circumstances, we conclude Conner has failed to prove counsel failed to perform
an essential duty. Accordingly, his claim of ineffective assistance fails. See
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Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008) (noting a claim of ineffective
assistance of counsel fails if either element is lacking).
We affirm the district court’s denial of Conner’s PCR application.
AFFIRMED.