Kevin Baxter, Applicant-Appellant v. State of Iowa ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 3-1232 / 11-0694
Filed February 5, 2014
KEVIN BAXTER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Thomas N.
Bower, Judge.
Applicant appeals the district court’s decision denying his application for
postconviction relief from his convictions for manufacturing methamphetamine
and receipt of precursor drugs for an unlawful purpose. AFFIRMED.
Carla S. Pearson of Pearson Law, P.C., Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant
Attorney General, Thomas J. Ferguson, County Attorney, and James Katcher,
Assistant County Attorney, for appellee State.
Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.* Bower, J.,
takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
2
MAHAN, S.J.
Kevin Baxter appeals, claiming he received ineffective assistance from
postconviction counsel. Baxter contends postconviction counsel should have
called more witnesses to testify at the hearing, done more to refresh the memory
of his trial counsel, and investigated the case more fully. He does not assert
what additional information could have been presented if these actions were
taken. We conclude Baxter has not shown he received ineffective assistance
from postconviction counsel. We affirm the decision of the district court.
I. Background Facts and Proceedings
Kevin Baxter was charged with conspiracy to manufacture
methamphetamine, manufacturing methamphetamine, possession of
pseudoephedrine, and receipt of precursor drugs for an unlawful purpose. A jury
found him guilty on all charges. At sentencing, the district court merged the
conspiracy charge with the manufacturing charge and merged the possession
charge with the receipt of precursors charge. Baxter was sentenced on his
convictions for manufacturing methamphetamine, in violation of Iowa Code
section 124.401(1)(b)(7) (1999), and receipt of precursor drugs, in violation of
section 124B.9, to terms of imprisonment not to exceed thirty years and ten
years, respectively, to be served concurrently.1
Baxter’s convictions were affirmed on appeal. State v. Baxter, No. 00-
0407, 2002 WL 570663 (Iowa Ct. App. Feb. 20, 2002). Procedendo was issued
on May 30, 2002.
1
On the charge of manufacturing methamphetamine, Baxter was sentenced pursuant to
section 124.411 to three times the term of imprisonment otherwise authorized because
this conviction was a second or subsequent offense.
3
Baxter filed an application for postconviction relief on July 25, 2002. He
claimed his trial counsel was ineffective for failing to: (1) file a motion to dismiss
based upon violation of defendant’s speedy trial rights; (2) request the dismissal
of a juror who fell asleep during the trial; (3) adequately consult with defendant;
and (4) adequately investigate the case. He claimed he received ineffective
assistance of appellate counsel on the following grounds: (1) failure to raise the
speedy trial issue; (2) failure to raise an issue regarding whether defendant was
prejudiced because the jury heard evidence on both the conspiracy and
manufacturing charges, which were later merged; (3) failure to raise the issue of
prosecutorial misconduct; (4) failure to raise an issue concerning the sleeping
juror; and (5) failure to allege ineffective assistance of trial counsel due to
inadequate investigation of the case.
For reasons not readily apparent from the record, the case languished in
the court system until a postconviction hearing was held on January 31, 2011.2
Baxter testified at the hearing, as did his trial counsel. Baxter’s trial counsel
testified he did not remember much in the way of specifics about Baxter’s case.
The district court denied Baxter’s application for postconviction relief, finding he
had not shown he received ineffective assistance from trial or appellate counsel.
Baxter now appeals.
2
Baxter’s first postconviction counsel had a conflict and new counsel was appointed on
March 19, 2004. The case was dismissed pursuant to Iowa Rule of Civil Procedure
1.944 on January 1, 2005, but was later reinstated. The case was set for hearing
several times, but counsel for one party or the other would ask for a continuance, and
these requests were granted by the court until the matter had dragged on for more than
eight years.
4
II. Standard of Review
We review claims of ineffective assistance of counsel de novo. Ennenga
v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective
assistance of counsel, an applicant must show (1) the attorney failed to perform
an essential duty and (2) prejudice resulted to the extent it denied the applicant a
fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). “In determining
whether an attorney failed in performance of an essential duty, we avoid second-
guessing reasonable trial strategy.” Everett v. State, 789 N.W.2d 151, 158 (Iowa
2010). In order to show prejudice, an applicant must show that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
State v. Madsen, 813 N.W.2d 714, 727 (Iowa 2012). An applicant has the
burden to show by a preponderance of the evidence that counsel was ineffective.
See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).
III. Merits
On appeal, Baxter contends he received ineffective assistance from
postconviction counsel. He asserts postconviction counsel should have sought
testimony from his appellate counsel and an attorney who assisted his trial
counsel. He also asserts that postconviction counsel should have done more to
refresh the memory of his trial counsel. Baxter additionally asserts
postconviction counsel did not do enough to investigate the case. He claims he
was prejudiced by the performance of his postconviction counsel and should
receive a new postconviction hearing.
Baxter is required to state the specific ways in which postconviction
counsel’s performance was inadequate. Rivers v. State, 615 N.W.2d 688, 690
5
(Iowa 2000). He must also state how competent representation would have
changed the outcome of the postconviction proceeding. Id. “When complaining
about the adequacy of an attorney’s representation, it is not enough to simply
claim that counsel should have done a better job.” Dunbar v. State, 515 N.W.2d
12, 15 (Iowa 1994).
While Baxter contends postconviction counsel should have called more
witnesses to testify at the hearing, done more to refresh the memory of his trial
counsel, and investigated the case more fully, he does not assert what additional
information could have been presented if these actions were taken. Baxter does
not suggest what information would have been revealed by calling other
witnesses or conducting additional investigation, or how this information would
have supported his application for postconviction relief. See id. Furthermore, he
does not state how this additional information would have changed the result of
the postconviction proceedings. See id.We conclude Baxter has not shown he received ineffective assistance
from postconviction counsel—he has not shown counsel failed to perform an
essential duty or that he was prejudiced by counsel’s performance. We note
Baxter’s appellate brief does not address the merits of his underlying claims of
ineffective assistance from trial and appellate counsel. Therefore, we do not
address these issues in our opinion.
We affirm the decision of the district court denying Baxter’s application for
postconviction relief.
AFFIRMED.