Jason Kensett v. State of Iowa ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1702
Filed December 19, 2018
JASON KENSETT,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Henry County, Lucy J. Gamon,
Judge.
A petitioner appeals the dismissal of his application for postconviction relief.
AFFIRMED.
William Monroe of Law Office of William Monroe, Burlington, for appellant.
Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
2
McDONALD, Judge.
Jason Kensett was convicted of “manufacturing more than five grams of
methamphetamine, a class B felony, in violation of Iowa Code section
124.401(1)(b)(7) (2009), and possessing anhydrous ammonia and lithium with the
intent that the products be used to manufacture methamphetamine, both class D
felonies, in violation of Iowa Code section 124.401(4)(b).” State v. Kensett, No.
11-0621, 2012 WL 3026528, at *1 (Iowa Ct. App. July 25, 2012). This court
affirmed his convictions on direct appeal. See id.In this appeal, Kensett contends the district court erred in denying his
application for postconviction relief. The only claim at issue on appeal is Kensett’s
claim that his trial counsel operated under a conflict of interest because the
magistrate who signed the search warrant, which resulted in evidence obtained
and used in the underlying criminal proceeding, was Kensett’s trial counsel’s law
partner. Kensett contends his trial counsel thus had divided loyalties. The
postconviction court denied Kensett’s claim, and Kensett timely filed this appeal.
Because Kensett’s claim implicates the constitutional right to the assistance
of counsel, our review is de novo. See State v. Vaughan, 859 N.W.2d 492, 497
(Iowa 2015) (“We review conflict-of-interest allegations de novo.”). With respect
to conflict-of-interest claims,
automatic reversal is required under the Sixth Amendment only when
the trial court refuses to inquire into a conflict of interest over
defendant’s or counsel’s objection. When neither the defendant nor
his or her attorney raises the conflict of interest, the defendant is
required to show an adverse effect on counsel’s performance to
warrant reversal, even if the trial court should have known about the
conflict and failed to inquire.
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Id. at 500 (citation omitted). “[A]n adverse effect occurs when counsel fails to
pursue a plausible strategy or tactic due to the existence of a conflict of interest.”
Id. at 501.
Kensett contends he need not establish the potential conflict of interest
adversely affected counsel’s performance. He contends automatic reversal is
required. We respectfully disagree. Neither Kensett nor his trial counsel raised
the potential conflict of interest in the underlying criminal proceeding. Kensett’s
contention is thus contrary to Vaughan. See id. at 500.
Further, on de novo review of the record, there is no evidence the potential
conflict of interest had an adverse effect on counsel’s performance. The record
shows Kensett’s privately-retained trial counsel filed a motion to suppress
evidence and vigorously challenged the validity of the search warrant. Trial
counsel attacked the credibility of the confidential informant and argued the
warrant itself was predicated on unlawfully obtained information. The district court
in the underlying criminal proceeding denied the motion to suppress evidence. The
validity of the warrant was again challenged on direct appeal, and this court
rejected that challenge. See Kensett, 2012 WL 3026528, at *5 (affirming denial of
motion to suppress evidence). There is no showing of what, if anything, counsel
should have done differently in challenging the motion. There is no showing trial
counsel failed to pursue a plausible argument, strategy, or tactic. In the absence
of evidence showing the potential conflict of interest had an adverse effect on trial
counsel’s decision with respect to the suppression motion, we are “left with sheer
speculation, and that is not enough.” Mediina v. United States, CR No. 04-043-
4
ML, 2008 WL 4974597, at *9 (D.R.I. Nov. 21, 2008) (denying application for
postconviction relief where offender asserted a claim that potential conflict of
interest had an adverse effect on trial counsel’s decision to forego a motion to
suppress evidence) (quoting Reyes-Vejerano v. United States, 276 F.3d 94, 100
(1st Cir. 2002)).
For these reasons, the district court did not err in denying Kensett’s
application for postconviction relief.
AFFIRMED.