Michael Lynn Heard Sr. v. State of Iowa , 918 N.W.2d 501 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0723
Filed April 4, 2018
MICHAEL LYNN HEARD SR.,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Greene County, Steven J. Oeth,
Judge.
A postconviction applicant appeals the denial of relief from his convictions
and sentences for cocaine delivery, theft, and criminal mischief. AFFIRMED.
Joseph C. Glazebrook of Glazebrook & Hurd, LLP, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Zachary L. Miller, Assistant
Attorney General, for appellee State.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
2
TABOR, Judge.
Michael Heard Sr. appeals the dismissal of his postconviction relief (PCR)
application. He raises several issues related to his sentencing. But because he
has discharged his sentence, those issues are now moot. So Heard is left with a
single viable claim—had trial counsel fully investigated Heard’s mental health and
better informed Heard about a diminished capacity defense, Heard would have
insisted on going to trial. Deferring to the district court’s credibility findings, we
reject Heard’s allegation of ineffective assistance of counsel.
In October 2010, Heard pleaded guilty to delivery of cocaine, a class “C”
felony, in violation of Iowa Code section 124.401(1)(c)(2)(b) (2010). The district
court sentenced Heard to an indeterminate ten-year suspended sentence and
placed him on probation for five years. After Heard violated his probation in 2012,
the district court imposed the original ten-year sentence. But after reconsideration,
the court again released Heard on a five-year probation term.
Then in 2014, Heard violated probation and was charged with second-
degree criminal mischief, domestic abuse assault, and fifth-degree theft. To avoid
the impact of a domestic-abuse-assault conviction, Heard agreed to plead guilty to
fifth-degree theft, in violation of Iowa Code section 714.2(5) and third-degree
criminal mischief, in violation of Iowa Code section 716.1, in return for the State’s
dismissal of the assault charge. At the combined sentencing and probation-
revocation hearing, the district court imposed a thirty-day term for theft and a two-
year term for criminal mischief concurrent to his indeterminate ten-year sentence
for drug delivery.
3
Heard sought postconviction relief (PCR) alleging his trial attorney was
ineffective in three ways: (1) failing to investigate a diminished-capacity defense
based on Heard’s diagnoses for mood disorder and major panic disorder, (2) failing
to request an updated presentence investigation (PSI) report, and (3) failing to
present evidence of Heard’s impairments as mitigating sentencing factors. During
the PCR hearing Heard also complained counsel permitted him to plead guilty
even though Heard did not understand the charges or their consequences. Heard
alleged that had counsel performed adequately, he would have refused the plea
agreement and demanded a trial. Heard’s counsel, Joey Hoover, testified. Heard
also took the stand, as did his wife and son.
The PCR court decided attorney Hoover performed competently and
dismissed Heard’s PCR application. On appeal, Heard renews his claims that
Hoover failed to adequately investigate a possible diminished-capacity defense,
failed to present evidence of Heard’s mental health at sentencing, failed to request
an updated PSI, and the cumulative effect of these failures resulted in prejudice.
Heard also alleges he received constitutionally deficient representation from his
PCR trial counsel because that attorney failed to challenge the district court’s
sentencing calculation.
While we generally review PCR proceedings for legal error, we review
ineffective-assistance claims de novo due to their constitutional nature. See
Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). Because the district court
had the chance to see the witnesses in person, we give weight to its conclusions
regarding their credibility. See id. To show he received ineffective assistance,
Heard must prove by a preponderance of the evidence that his attorneys failed to
4
perform an essential duty and prejudice resulted. See State v. Straw, 708 N.W.2d
128, 133 (Iowa 2006).
The bulk of Heard’s appellate claims relate to sentencing. But, as Heard
concedes, he discharged his sentence on February 8, 2017.1 The State argues
the sentencing claims are moot. An issue is moot “if it no longer presents a
justiciable controversy because the issues involved are academic or nonexistent.”
Homan v. Branstad, 864 N.W.2d 321, 328 (Iowa 2015) (quoting Iowa Bankers
Ass’n v. Iowa Credit Union Dep’t, 335 N.W.2d 439, 442 (Iowa 1983)). When
determining if an issue is moot, we question if “an opinion would be of force and
effect with regard to the underlying controversy.” Id. (quoting Women Aware v.
Reagan, 331 N.W.2d 88, 92 (Iowa 1983)). Because Heard already discharged his
sentences, an opinion would be of no force and effect.2 Accordingly, we dismiss
those claims as moot. See State v. Wilson, 234 N.W.2d 140, 141 (Iowa 1975)
(determining challenge to sentencing condition was moot because the sentence
was already discharged).
Heard’s only surviving claim alleges attorney Hoover failed to adequately
investigate Heard’s mental-health issues as possible support for a diminished-
capacity defense. Heard claims had Hoover more fully developed the diminished-
1
“Matters that are technically outside the record may be submitted in order to establish or
counter a claim of mootness. We consider matters that have transpired during the appeal
for this limited purpose.” In re L.H., 480 N.W.2d 43, 45 (Iowa 1992).
2
Heard’s sentencing challenges do not present issues warranting review in spite of
mootness. See State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002) (noting
moot claims can be considered after considering the “(1) the private or public nature of the
issue; (2) the desirability of an authoritative adjudication to guide public officials in their
future conduct; (3) the likelihood of the recurrence of the issue; and (4) the likelihood the
issue will recur yet evade appellate review” (citation omitted)). Heard did not file a reply
brief to address the mootness issue.
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capacity defense and explained it to him, he would have refused the plea
agreement and insisted on going to trial. To prevail, Heard must show Hoover
failed to meet the standard of a reasonably competent attorney. See Ledezma,
626 N.W.2d at 142. We begin with an assumption Hoover performed competently
and require Heard to show otherwise. See id.Heard did not prove Hoover’s representation fell below reasonable
competency. Hoover testified he reviewed a psychological evaluation of Heard in
preparation for a diminished-capacity defense, which would have negated the
specific intent elements of the offenses charged. Hoover also testified he advised
his client about the pros and cons of accepting the proposed plea agreement
versus raising a diminished-capacity defense at trial. Specifically Hoover warned
Heard that juries “tend to not like that defense.” Hoover used a recent high-profile
Iowa case to illustrate his point. But Hoover did not suggest a jury would
necessarily reject the defense in Heard’s case. Hoover testified had Heard opted
for a trial, he would have presented the diminished-capacity defense. In support
of the defense, Hoover intended to call, and in fact had subpoenaed, the
psychologist who drafted Heard’s evaluation. Hoover testified he was “confident”
Heard understood the consequences of the plea agreement or the attorney “would
not have allowed the plea to go forward.” In his testimony, Heard disagreed with
his attorney’s recollection of events.
The PCR court gave credence to attorney Hoover’s testimony, and we defer
to that credibility finding. See Ledezma, 626 N.W.2d at 141. The attorney
adequately investigated a diminished-capacity defense and provided Heard an
honest assessment of its chances of success. Heard made an informed decision
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to “enter pleas and probation violation admissions.” On this record, Heard cannot
to show Hoover failed to perform an essential duty.3 See id. at 142.
AFFIRMED.
3
Heard also argues he received ineffective assistance due to the cumulative impact of
counsel’s omissions. But because only one issue is not moot, there are not claims to
consider in aggregate.