State of Iowa v. Steven Lenard Viers Jr ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1586
Filed November 9, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
STEVEN LENARD VIERS JR,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly,
Judge.
A defendant appeals his convictions for operating while intoxicated
claiming counsel provided ineffective assistance. AFFIRMED.
Gerald J. Kucera, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, and Kristin A. Guddall, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
2
VOGEL, Presiding Judge.
Following a jury trial, Steven Viers appeals his convictions for one count of
operating while intoxicated (OWI), third or subsequent offense and as an habitual
offender, in violation of Iowa Code sections 321J.2 and 902.8 (2013), and one
count of driving while barred, in violation of Iowa Code sections 321.560 and
321.561.1 He claims his counsel was ineffective in a number of ways, including:
failing to file a notice of defense due to his multiple sclerosis, failing to file a
motion to suppress due to his medical condition and a lack of probable cause to
stop his vehicle, failing to call witnesses at trial, failure to communicate with him,
failing to prepare him to testify, and failing to prepare for trial. Viers asks that we
find the record adequate to address these claims on appeal, but he fails to
present any argument as to how counsel was ineffective and how he suffered
prejudice as a result. We therefore preserve these claims for possible
postconviction-relief proceedings. See State v. Johnson, 784 N.W.2d 192, 196
(Iowa 2010) (noting we must preserve an ineffective-assistance claim made on
direct appeal if the record is inadequate to address the claim “regardless of the
court’s view of the potential viability of the claim.”).
Viers also claims the court erred when it sentenced him to fifteen years in
prison as an habitual offender under section 902.8 when the trial information
never mentioned that code section. He does concede the trial information
charging him with OWI also charged him with “being a third offender and being a
habitual felon” but claims the lack of reference to section 902.8 makes his
1
Following a guilty plea, Viers was separately convicted of OWI third-offense and driving
while barred under a separate docket number. He does not appeal those convictions,
and we do not address them further.
3
sentence illegal. The State maintains that while Viers frames his argument as a
sentencing error, it is really a challenge to the adequacy of the trial information
that must be made first at the trial court in order to be preserved for appeal. On
the merits, the State maintains that even absent a reference to section 902.8 the
trial information sufficiently advises Viers of the State’s intention to pursue the
habitual offender enhancement. In his reply brief, Viers claims that any failure of
counsel to challenge the trial information also amounted to ineffective assistance
of counsel. See State v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009) (“We have
repeatedly held we will not consider issues raised for the first time in a reply
brief.”).
We agree with the State that Viers attempts to challenge the adequacy of
the trial information on direct appeal without having challenged it at the district
court, and therefore, Viers’s claim is not preserved for our review. See State v.
Watkins, 659 N.W.2d 526, 533 (Iowa 2003) (“A bill of particulars is a request for a
more specific statement of the details of the offense charged. Its purpose is to
provide additional information that the indictment and minutes of testimony do not
give.” (citations omitted)); State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997)
(“Issues not raised before the district court, including constitutional issues, cannot
be raised for the first time on appeal.”); see also State v. Brothern, 832 N.W.2d
187, 191 (Iowa 2013) (“Generally, we require objections to be made ‘at the
earliest opportunity’ after the grounds become apparent.” (citation omitted)).
To the extent Viers claims counsel was ineffective in not challenging the
adequacy of the trial information charging him as an habitual offender, we also
reject this claim. “The purpose of a trial information or indictment is to afford the
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person charged with an opportunity to prepare a defense. We consider both the
trial information and the minutes of testimony in determining whether an accused
has been adequately apprised of the crime charged.” State v. Brisco, 816
N.W.2d 415, 420 (Iowa Ct. App. 2012) (citations omitted). While the trial
information did not contain a reference to section 902.8, it stated Viers was being
charged as an “habitual felon,” and it specifically listed three prior felony
convictions for OWI third. The minutes of testimony also stated the clerk of court
or her designee would be called to testify regarding these specific prior offenses.
We conclude the trial information was sufficient to alert Viers he was being
charged as an habitual offender and to allowed him an opportunity to prepare a
defense. See id.; see also State v. Dalton, 674 N.W.2d 111, 120 (Iowa 2004)
(finding defendant failed to prove counsel was ineffective in not challenging trial
information where, even though it did not specifically reference the paragraph of
the code section the defendant was charged under, it was still sufficient to
appraise the defendant of the charge and he did not suffer prejudice). Any
objection or motion trial counsel could have filed against the specificity of the trial
information in this case would have been rejected. Brothern, 832 N.W.2d at 192
(“We will not find counsel incompetent for failing to pursue a meritless issue.”
(citation omitted)).
Viers’s convictions are affirmed; all other ineffective-assistance claims are
preserved for possible postconviction-relief proceedings.
AFFIRMED.