Mark D. Becker v. State of Iowa ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0391
Filed June 20, 2018
MARK D. BECKER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Butler County, Gregg R. Rosenbladt,
Judge.
Mark Becker appeals the district court’s denial of his application for
postconviction relief. AFFIRMED.
Richard R. Hollis, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Darrel L. Mullins and Scott D.
Brown, Assistant Attorneys General, for appellee State.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
2
BOWER, Judge.
Mark Becker appeals the district court’s denial of his application for
postconviction relief (PCR). Becker claims trial counsel was ineffective for failing
to file a motion for change of venue. He also claims postconviction counsel was
ineffective for failing to present evidence of pretrial publicity or introduce trial
counsel’s file regarding pretrial publicity. Finally, Becker claims both trial and
postconviction counsel were ineffective for failing to challenge the amount of
restitution.1 We find trial counsel was effective but preserve Becker’s claim that
PCR counsel was ineffective for further hearing.
I. Background Facts and Proceedings
Becker suffered from paranoid schizophrenia and had instances of violent
behavior when not properly medicated. On June 24, 2009, Becker shot and killed
Ed Thomas in front of numerous witnesses. Trial counsel pursued an insanity
defense, realizing the evidence of the murder itself was overwhelming.
Because of Thomas’s standing in the community there were concerns
regarding pretrial publicity. The State made a conditional motion for change of
venue in the event the county was so prejudiced as to create a substantial
likelihood the trial would not be fair and impartial, which trial counsel did not resist.
Venue was not changed, and a jury was selected. Becker was found guilty on
March 2, 2010.
Becker appealed, but his conviction was affirmed both by our court and our
supreme court. See State v. Becker, 818 N.W.2d 135, 163 (Iowa 2012) (overruled
1
Becker submitted a pro se brief as well but cites no legal authority. We find this
constitutes a waiver of the issues raised in the brief. See Iowa R. App. P. 6.14(1)(c).
3
on other grounds by Alcala v. Marriott Int’l Inc., 880 N.W.2d 699, 708 (Iowa 2016));
see also State v. Becker, No. 10-0631, 2011 WL 3925431, at *8, *10 (Iowa Ct.
App. Sept. 8, 2011). Becker then filed an application for postconviction relief
August 7, 2015. The application was denied by the district court and Becker now
appeals.
II. Standard of Review
“The standard of review on appeal from the denial of postconviction relief is
for errors at law.” McLaughlin v. State, 533 N.W.2d 546, 547 (Iowa 1995).
However, “[w]hen there is an alleged denial of constitutional rights, . . . we make
our own evaluation of the totality of the circumstances in a de novo review.” Id.
Claims of ineffective assistance of counsel are reviewed de novo. Ledezma v.
State, 626 N.W.2d 134, 141 (Iowa 2001). “To prevail on a claim of ineffective
assistance of counsel, the [defendant] must demonstrate both ineffective
assistance and prejudice.” Id. at 142. “If the claim lacks prejudice, it can be
decided on that ground alone without deciding whether the attorney performed
deficiently.” Id. Both elements must be proved by a preponderance of the
evidence. Jones v. State, 479 N.W.2d 265, 272 (Iowa 1991).
Becker asks us to establish a rule that violation of Iowa Rule of Professional
Conduct 32.1.1, regarding competent representation, should be considered a
breach of duty, and therefore ineffective assistance of counsel, which would satisfy
the first element of the test. However, our supreme court has found “an ethical
violation [does not] always mean that ineffective assistance has [ ] occurred.” State
v. Clay, 824 N.W.2d 488, 502 (Iowa 2012). We decline to establish such a rule.
4
Becker raises his ineffective assistance claims under both the federal and
state constitutions. However, “when the parties have not argued that our analysis
under the Iowa Constitution should differ from our analysis under the Federal
Constitution, we decline to apply divergent analyses.” Nguyen v. State, 878
N.W.2d 744, 757 (Iowa 2016).
Orders for restitution are reviewed for the correction of errors at law. State
v. Jenkins, 788 N.W.2d 640, 642 (Iowa 2010). We will affirm the district court if the
order is supported by substantial evidence. Id.
III. Ineffective Assistance of Trial Counsel
Becker claims trial counsel was ineffective for failing to file a motion for
change of venue due to pretrial publicity. Becker claims sympathy for Thomas and
Thomas’s standing in the community was so great as to prejudice any possible
jury pool against him. He also points to the State’s conditional motion for change
of venue and request for trial counsel to make a record of the reasons for not filing
a change of venue motion.
Trial counsel was aware of the pretrial publicity surrounding the case. Trial
counsel discussed the issue of venue with other lawyers. At the postconviction
hearing, trial counsel testified the nature of the publicity influenced her decision not
to change venue. Media coverage noted witnesses who said Becker appeared to
be insane, and the families of Becker and Thomas “tried to remain friends” and
“the Thomas family actually reached out to the Becker family to request prayer, to
request understanding for” the Beckers.
“Miscalculated trial strategies and mere mistakes in judgment normally do
not rise to the level of ineffective assistance of counsel.” Ledezma, 626 N.W.2d at
5
143. However, a tactical decision must still be viewed under the ultimate question
of whether “under the entire record and totality of the circumstances” counsel
performed competently. Osborn v. State, 573 N.W.2d 917, 922 (Iowa 1998). We
find trial counsel’s decision to forgo a change of venue was sound trial strategy
given the available information. Pretrial publicity was widespread but many
accounts favored the defense. Additionally, the positive interactions between the
families and the Thomas family’s plea for understanding could have also positively
influenced jurors toward the defense. We find trial counsel did not breach her duty.
IV. Ineffective Assistance of Postconviction Counsel
Becker points to areas where postconviction counsel should have
presented evidence on claims presented. Without further hearing, we would be
required to guess at the contents of trial counsel’s file and the quality, quantity, and
content of media coverage of the case. We decline to do so at this time but
preserve those issues for a potential postconviction relief trial, if requested.
V. Restitution
Becker finally claims trial counsel and postconviction counsel were
ineffective for failing to challenge the amount of restitution owed. Challenges to
restitution, court costs, and fees may not be raised in postconviction relief
proceedings. Iowa Code § 822.2(1)(g) (2015); Earnest v. State, 508 N.W.2d 630,
633 (Iowa 1993) (“We hold that this subsection unambiguously excludes claims
relating to restitution in postconviction proceedings.”). We find this claim cannot
be brought in the present action.
AFFIRMED.