Peter Mendoza Jr., Applicant-Appellant v. State of Iowa ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1546
Filed December 10, 2014
PETER MENDOZA JR.,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Robert E.
Sosalla, Judge.
Peter Mendoza Jr. appeals the dismissal of his application for
postconviction relief. AFFIRMED.
Mark C. Meyer, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney
General, Janet M. Lyness, County Attorney, and Susan D. Nehring, Assistant
County Attorney, for appellee State.
Considered by Danilson, C.J. and Vogel and Bower, JJ.
2
DANILSON, C.J.
Peter Mendoza Jr. appeals the dismissal of his application for
postconviction relief (PCR). Mendoza maintains his appellate counsel was
ineffective for failing to challenge on direct appeal the trial court’s limitation of
Mendoza’s impeachment of the State’s eyewitness. We find the trial court did
not abuse its discretion in limiting the impeachment of the witness, thus appellate
counsel was not ineffective for failing to raise the claim on direct appeal.
Mendoza’s remaining claims were not raised in his application for PCR, and we
decline to review them. See Iowa Code § 822.8 (2011). Accordingly, we affirm
the district court’s denial of Mendoza’s application for PCR.
I. Background Facts and Proceedings
On June 5, 2009, Mendoza was charged by trial information with arson in
the first degree. He entered a plea of not guilty, and trial was scheduled to begin
on January 4, 2010. Prior to the commencement of trial, Mendoza’s trial attorney
filed a notice of intent to impeach Ward, the State’s alleged eyewitness, pursuant
to Iowa Rule of Evidence 5.609(b).1 Mendoza’s trial attorney requested to
present a full recitation of Ward’s impeachable offenses to the jury—thirteen in
1
Rule 5.609(a)(2) provides, “Evidence that any witness has been convicted of a crime
shall be admitted if it involved dishonesty or false statement, regardless of the
punishment.” However, rule 5.609(b) limits the admissible convictions, providing:
Evidence of a conviction under this rule is not admissible if a period of
more than ten years has elapsed since the date of the conviction or of the
release of the witness from the confinement imposed for that conviction,
whichever is the later date, unless the court determines, in the interest of
justice, that the probative value of the conviction supported by specific
facts and circumstances substantially outweighs its prejudicial effect.
However, evidence of a conviction more than ten years old is calculated
herein, is not admissible unless the proponent gives to the adverse party
sufficient advance written notice of intent to use such evidence to provide
the adverse party with a fair opportunity to contest the use of such
evidence.
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total—although most of them were more than ten years old. The court held a
pretrial hearing on the matter. Mendoza’s trial attorney maintained all of Ward’s
convictions should be admissible because they showed “a continuing pattern”
that “reflect on [Ward]’s credibility” and Ward’s credibility was “paramount” to the
State’s case. The State argued there was not “adequate proof of all the
convictions [Mendoza’s trial attorney] itemized” and that the ones there was
adequate proof of did not constitute a “continuous pattern of behavior.” The court
ruled Mendoza could not impeach Ward with the convictions that were more than
ten years old because the probative value did not substantially outweigh the
prejudicial effect, stating:
[A]nd I’ve considered the issue and balancing factors
including the impeachment value of prior crimes, the point in time of
the convictions and David Ward’s subsequent history as made
known to the court.
. . . The court considered the importance of David Ward’s
testimony and the centrality of the credibility issue here.
The court finds that David Ward’s testimony is very important
to the [S]tate and his credibility is very important. The court,
however, is pretty concerned about the weakness of the evidence
of conviction.
You know, as the judge here, I would like to know which
specific crimes that have been listed in the motion truly are
convictions. I’m not able to know that based on the evidence that
has been presented here at this hearing, and I also think it is
significant that many of these convictions are really remote in time,
not only back ten years but significantly even longer ago and there
is a noticeable gap in the criminal history from 1995 up to 2009.
The case then proceeded to trial. On the second day, a witness violated the
motion in limine by referencing Mendoza’s prior bad acts, and the district court
granted a mistrial. Mendoza filed a motion to dismiss, which the district court
denied.
4
Mendoza’s second trial was held on February 8–10, 2010. Prior to the
trial, Mendoza’s counsel asked the court to revisit the notice of intent to impeach
Ward with his prior convictions, maintaining they had obtained a certified copy of
Ward’s criminal record from Illinois that clarified Ward’s criminal history. The
court re-affirmed that Ward could be impeached by two theft convictions that he
received within the last ten years and additionally allowed Mendoza to use a
burglary conviction from January 2000 to impeach Ward. All of Ward’s other
convictions were ruled inadmissible for impeachment.
The jury trial then commenced. During the State’s closing arguments, the
prosecutor stated:
The law also tells you you can consider a witness’s interest in the
trial, their motive, bias, they have a prejudice that might affect may
not truthfulness even but perception, memory. Now, we had eleven
witnesses who testified for the [S]tate. We’ll talk in a minute about
those. There were no defense witnesses and they are not required
to call absolutely, the burden is on the [S]tate. The reason I
mention that is only because there were no testimony or exhibits
that directly refuted or disputed—
Mendoza’s trial counsel then interjected with an objection, which the court
sustained. At the request of Mendoza’s attorney, the court instructed the jury to
disregard the comments made by the prosecutor. The prosecutor then
proceeded with closing arguments.
On February 10, 2010, the jury returned a guilty verdict for arson in the
first degree.
On March 8, 2010, trial counsel filed a motion for new trial asserting the
verdict was contrary to the law and the evidence, the “court abused its discretion
by not allowing the defendant to impeach the State’s eyewitness with evidence of
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felony convictions more than ten years old,” and the “prosecuting attorney
engaged in prejudicial misconduct during the trial by commenting on the
defendant’s not presenting evidence.” The State resisted the motion, and
following a hearing, the court denied it. Mendoza was sentenced to an
indeterminate term of incarceration not to exceed twenty-five years.
On direct appeal, Mendoza’s appellate counsel argued the district court
abused its discretion when it denied Mendoza’s motion for new trial because the
weight of the evidence did not support a finding Mendoza had the necessary
intent to support a conviction for arson in the first degree. In State v. Mendoza,
No. 10–0645, 2011 WL 662700, at *5 (Iowa Ct. App. Feb. 23, 2011), we affirmed
the district court’s denial of Mendoza’s motion for new trial on the ground raised.
Mendoza filed a pro se application for PCR on May 4, 2011. With the
assistance of counsel, he filed an amended application on February 6, 2012.
Following an evidentiary hearing, the district court denied Mendoza’s application,
and he appeals.
II. Standard of Review.
We typically review postconviction-relief proceedings for corrections of
error at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, as
here, when the applicant asserts claims of a constitutional nature, our review is
de novo. Id. We give weight to the lower court’s findings concerning the
credibility of witnesses. Id.6
III. Discussion.
A. Ineffective Assistance.
A criminal defendant is entitled to effective assistance of counsel on
appeal as well as at trial. See id. at 141–42. “We judge ineffective assistance of
appellate counsel claims against the same two-pronged test utilized for
ineffective assistance of trial counsel claims.” Id. at 141. To prevail on a claim of
ineffective assistance of appellate counsel, the applicant must prove by a
preponderance of the evidence (1) the attorney failed to perform an essential
duty and (2) prejudice resulted from the failure. State v. Rodriguez, 804 N.W.2d
844, 848 (Iowa 2011). To prove that counsel failed to perform an essential duty,
he must show “counsel’s representation fell below an objective standard of
reasonableness . . . under prevailing professional norms.” See Strickland v.
Washington, 466 U.S. 668, 688 (1984). The applicant must overcome a strong
presumption of counsel’s competence. Id. at 689. To establish prejudice, the
applicant must show there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. In the appellate context, an applicant must establish that the
underlying claim likely would have prevailed if it had been raised on direct
appeal.” See Ledezma, 626 N.W.2d at 141. The claim fails if either element is
lacking. See Everett v. State, 789 N .W.2d 151, 159 (Iowa 2010).
Mendoza maintains appellate counsel was ineffective for failing to
challenge the district court’s limitation of his impeachment of Ward. To succeed
on his claim, Mendoza must prove that counsel failed to act as a “reasonably
competent practitioner” by not raising the issue on direct appeal, and had
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counsel raised it, it is likely the appellate court would have found the trial court
abused its discretion in limiting the impeachment.
Here, it is apparent the district court weighed the probative value,
prejudicial effect, as well as the centrality of Ward’s testimony to the State’s case,
and how remote in time the convictions were. Our supreme court has held “that
when a district court makes explicit on-the-record findings as to probative value,
prejudicial effect, and individual circumstances, the district court often creates a
persuasive record that it properly exercised its discretion.” See State v.
Redmond, 803 N.W.2d 112, 118 (Iowa 2011). We conclude, after our review of
the explicit findings, the district court did not abuse its discretion in ruling the
convictions more than ten years old were inadmissible to impeach Ward. The
convictions not admitted were remote in time and their bearing on the witness’s
credibility would be negligible because the witness was already impeached by
three prior convictions. Thus, appellate counsel was not ineffective for failing to
raise this issue on direct appeal. See State v. Dudley, 766 N.W.2d 606, 620
(Iowa 2009) (“Because counsel has no duty to raise issues that have no merit,
we will first determine whether [defendant’s] underlying claims have any
validity.”).
B. Other Claims. For the first time in his appeal from the denial of
application for PCR, Mendoza maintains appellate counsel was ineffective for
failing to challenge on direct appeal trial counsel’s decision not to request a
mistrial after the prosecutor’s comment that the defense did not call any
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witnesses at trial.2 Additionally, Mendoza admits in his brief that he is raising for
the first time the issue of whether Ward’s prior convictions should have been
admitted by the trial court, pursuant to Iowa Rule of Evidence 5.405(b), and
whether the trial court record fails to establish that he made a knowing and
intelligent waiver of his right to testify. See Iowa Code § 822.8 (“All grounds for
relief available to an applicant under this chapter must be raised in the
applicant’s original, supplemental or amended application. . . . unless the court
finds a ground for relief asserted which for sufficient reason was not asserted or
was inadequately raised in the original, supplemental, or amended application.”).
Thus, we decline to review these claims.
IV. Conclusion.
Because we find trial court did not abuse its discretion in limiting the
impeachment of the witness, appellate counsel was not ineffective for failing to
raise the claim on direct appeal. Additionally, Mendoza’s remaining claims were
not raised in his application for PCR, and we decline to review them. We affirm
the district court’s denial of Mendoza’s application for PCR
AFFIRMED.
2
In his application for PCR, Mendoza framed the issue as follows:
During closing arguments, the prosecutor committed prosecutorial
misconduct by referring to the Defendant’s failure to present evidence on
his behalf. The burden of proof is on the State of Iowa and the Defendant
has no obligation to prove his innocence, testify, or present evidence.
Trial counsel failed to request a mistrial and the District Court abused its
discretion by failing to grant a mistrial.
In its ruling, the district court treated the claim as a challenge of trial counsel’s
effectiveness.