Ralondo D. Nelson v. State of Iowa ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1743
Filed February 3, 2021
RALONDO D. NELSON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mary E. Howes,
Judge.
Ralondo Nelson appeals from denial of his requests for postconviction relief
in four underlying criminal cases. AFFIRMED.
Nate Nieman, Rock Island, Illinois, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and May and Ahlers, JJ.
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AHLERS, Judge.
Ralondo Nelson seeks postconviction relief (PCR) from convictions entered
in four criminal cases. He claims his attorneys in the criminal cases provided
ineffective assistance of counsel. After a PCR trial, the district court rejected
Nelson’s claims. We reject them as well and affirm the district court.
I. The Underlying Criminal Cases
As noted, there are four underlying criminal cases at issue in this appeal.
A. Case Number FECR333525
In this case, Nelson was charged with possession of an offensive weapon.
The case went to trial, Nelson was convicted of the offense, and the conviction
was affirmed on appeal. State v. Nelson, No. 11-1670, 2013 WL 104796, at *3
(Iowa Ct. App. Jan. 9, 2013). Nelson claims his trial counsel was ineffective by
failing to use prior inconsistent statements to impeach a witness who connected
Nelson to the firearm.
B. Case Number FECR339758
Nelson was charged with robbery in the first degree. Pursuant to plea
agreement, Nelson pleaded guilty to and was convicted of the reduced charge of
robbery in the second degree. He claims his trial counsel was ineffective for failing
to take steps to suppress an unconstitutionally suggestive line-up procedure and
failing to properly investigate Nelson’s claimed alibi.
C. Case Number FECR340382
Nelson was charged with willful injury and two counts of assault while
displaying or using a weapon. Pursuant to plea agreement, Nelson pleaded guilty
to and was convicted of the willful-injury charge. The other two charges were
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dismissed. Nelson claims his trial counsel was ineffective by failing to properly
investigate whether Nelson accidentally cut the victim of the crime with a knife.
D. Case Number FECR341512
In this case, Nelson was charged with robbery in the first degree, forgery,
willful injury causing bodily injury, and assault while displaying or using a weapon.
Pursuant to plea agreement, he pleaded guilty to and was convicted of robbery in
the first degree and forgery. The other two charges were dismissed. He now
claims trial counsel was ineffective for failing to properly investigate in support of
a defense and rushed Nelson into pleading guilty before a full investigation could
be completed.
II. Standard of Review
“Generally, an appeal from a denial of an application for postconviction relief
is reviewed for correction of errors at law.” Nguyen v. State, 878 N.W.2d 744, 750
(Iowa 2016) (citations omitted). However, because ineffective-assistance-of-
counsel claims are based on the constitutional guarantees of the effective
assistance of counsel found in the Sixth Amendment of the United States
Constitution and article I, section 10 of the Iowa Constitution, such claims are
reviewed de novo. Id. As noted, all Nelson’s claims are based on ineffective
assistance of counsel. Therefore, our review is de novo.
III. General PCR Principles
To establish a claim of ineffective assistance of counsel, the applicant must
establish (1) trial counsel failed to perform an essential duty, and (2) the failure
resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). We
“may consider either the prejudice prong or breach of duty first, and failure to find
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either one will preclude relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017)
(quoting State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015)). In analyzing
ineffective-assistance-of-counsel claims, we are not required to determine whether
counsel’s performance was deficient before examining the prejudice component
of the claim. State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). “Improvident trial
strategy, miscalculated tactics, or mistakes in judgment do not necessarily amount
to ineffective assistance of counsel. The petitioner must overcome a strong
presumption of counsel’s competence, and a postconviction applicant has the
burden to prove by a preponderance of the evidence that counsel was ineffective.”
Osborn v. State, 573 N.W.2d 917, 922 (Iowa 1998) (internal citation omitted)).
IV. Application of Principles
In discussing the merits of Nelson’s claims, we will separate them between
cases in which he went to trial and cases in which he pleaded guilty, as they involve
somewhat different principles.
A. Counsel’s Performance at Trial (Case Number FECR333525)
On direct appeal from his conviction in the underlying criminal case, our
court noted the following facts:
[The witness] was sitting outside her Davenport home when five of
her son’s acquaintances, including Nelson, walked up to the house.
Nelson asked [the witness’s] son to step off the porch. When he did
not, Nelson lifted his shirt and revealed the butt of a gun. [The
witness] told Nelson to leave and immediately reported the incident
to police.
A Davenport police officer dispatched to the scene saw
Nelson emerging from an alley. Upon searching the alley, the officer
found a sawed-off rifle.
. . . [The witness] identified Nelson as the person who
displayed a weapon. When questioned about her inconsistent
stories during the first trial, she intimated that she initially lied
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because Nelson’s cohorts threatened her family’s safety if she
identified Nelson.
Nelson, 2013 WL 104796, at *1.
In this PCR action, Nelson focuses on his counsel’s failure to exploit claimed
inconsistencies in the witness’s description of the gun. When she first reported the
incident, she described the gun as silver and black. At trial, she described Nelson
flashing a butt of the gun at her and it was brown. The gun recovered in the alley
was a sawed-off rifle with a black barrel and a brown stock and forestock. Nelson’s
attorney did not impeach the witness’s trial testimony that she saw a brown butt of
a gun with her previous statement in which she described the gun as silver and
black. Nelson claims this missed opportunity for impeachment was critical due to
the fact the case against him involved a claim of constructive possession of the
sawed-off rifle,1 so attacking the credibility of the witness with a prior inconsistent
statement was critical, as she was the only witness to place a gun in Nelson’s
possession.
We need not decide whether Nelson’s trial counsel breached a duty of
effective representation by failing to impeach the witness with a prior inconsistent
1 In its brief, the State asserts it is not necessary to tie Nelson to the sawed-off rifle
in the alley and the State was only required to prove Nelson was in possession of
any firearm. We reject this argument. The charge against Nelson was possession
of an offensive weapon, not carrying weapons, felon in possession of a firearm, or
some other charge in which any firearm would do. See, e.g., Iowa Code § 724.4(2011) (defining the offense of “carrying weapons” to include going “armed with . . .
any loaded firearm of any kind” within city limits). Given the nature of the charge,
the State was required to prove possession of an offensive weapon (e.g., a sawed-
off rifle). See id. § 724.1(2) (defining offensive weapon to include a rifle with a
barrel of less than sixteen inches in length). The only firearm that met the definition
of an offensive weapon of which there was record evidence was the sawed-off rifle
in the alley. Therefore, the State’s case required the State to prove Nelson
possessed the rifle found in the alley.
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statement, as Nelson failed to meet the prejudice prong of the ineffective-
assistance-of-counsel claim. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa
2001) (“If the claim lacks prejudice, it can be decided on that ground alone without
deciding whether the attorney performed deficiently.”). Here, the witness
described Nelson as having flashed a gun at her in an apparent effort to intimidate
her or her son. After she threatened to call the police, Nelson and his cohorts left
and were soon located a short distance away. An officer in a marked patrol car
looking for the group of young men came across them sitting on the wall alongside
the parking lot of a gas station. He identified Nelson as one of the group. By the
time the officer drove around part of the block to approach the group from the alley,
Nelson had left the group and was found coming from between garages that
opened into the alley. A subsequent sweep of the area revealed the sawed-off
rifle tucked under a piece of lumber beside the garage where Nelson was observed
when the officer approached in the alley. Nelson later claimed he went between
the garages to urinate. However, the officer who searched the area between the
garages observed no indications of wet grass, wet ground, or any other indication
that someone recently urinated in the area.
Based on these circumstances, our confidence in the outcome is not
undermined by Nelson’s counsel’s failure to impeach the witness with her
somewhat conflicting versions of the color of Nelson’s gun. See State v. Harris,
891 N.W.2d 182, 188–89 (Iowa 2017) (noting that, in determining whether there is
prejudice, we assess probability of a different result, which involves considering
whether our confidence in the outcome is undermined by the effects of counsel’s
errors). Besides the fact the gun was partially black, as the witness initially
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described, we note Nelson’s actions overcome any likely benefit that could have
been attained by parsing the witness’s description of the color of the gun. Nelson
was aware the police had been called. When a police car passed him shortly
thereafter, Nelson left a semi-public area and was found coming from between two
garages of residences to which Nelson had no apparent connection. The gun in
question was found exactly where Nelson had been spotted, and it was stashed in
a short pile of lumber, which is not exactly a typical storage place for a gun.
Furthermore, Nelson gave an excuse for being in the area that made no sense.
There was no evidence of urination in the area between the garages. Even if
Nelson needed to urinate, it made no sense for him to leave the gas station, which
was open to the public with a functioning bathroom, to go onto a stranger’s private
property in order to do so. Nelson’s actions are consistent with the State’s theory,
which is Nelson flashed a gun, fled under threat of the police being called,
immediately went to stash the gun as soon as he realized he had been spotted by
police, was caught as he left the location where he stashed the gun, and gave an
implausible story to explain his actions. We find there is no reasonable probability
the jury would have reached a different verdict if Nelson’s counsel had effectively
impeached the witness with her partially inconsistent descriptions of the color of
the gun. Therefore, Nelson has not established prejudice, and his claim of
ineffective assistance of counsel in this case fails.
B. Counsel’s Performance in Cases Involving Guilty Pleas
In the remaining three cases, Nelson entered guilty pleas pursuant to a
global plea agreement that greatly reduced his maximum exposure to
incarceration. He now claims both attorneys representing him in the three cases
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were ineffective.2 In order to satisfy the prejudice prong on his ineffective-
assistance-of-counsel claim, Nelson is required to “show ‘there is a reasonable
probability that, but for counsel’s errors, he . . . would not have pleaded guilty and
would have insisted on going to trial.’” State v. Weitzel, 905 N.W.2d 397, 402 (Iowa
2017) (quoting State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006)).
1. The Car Wash Robbery (Case Number FECR339758)
In this case, Nelson and a cohort approached a patron of a car wash. The
cohort stood lookout while Nelson robbed the patron at knifepoint. The patron later
identified Nelson from a series of six-pack photo lineups. Nelson pleaded guilty to
an amended charge of robbery in the second degree. He now claims his attorney
was ineffective for failing to suppress the identification of him based on claimed
suggestiveness of the lineup process. He also claims his attorney did not
adequately develop his alibi defense.
With respect to the failure to challenge the identification of Nelson through
use of a photo lineup, we begin with the law on this subject. Regarding challenges
to out-of-court identifications based on lineups that are claimed to be impermissibly
suggestive, we apply a “long-standing, two-part analysis” as follows:
“First, we decide whether the procedure used for the identification
was impermissibly suggestive.” If we determine the procedure was
impermissibly suggestive, we turn to the second step to decide
whether “under the totality of [the] circumstances the suggestive
procedure gave rise to a very substantial likelihood of irreparable
misidentification.”
Under the second step, the critical question is whether the out-
of-court identification was reliable. We have endorsed the prevailing
five-factor test for assessing reliability of out-of-court identification
2 One attorney represented Nelson in case number FECR339758. A different
attorney represented him on case numbers FECR340382 and FECR341512. Both
attorneys were present during the plea negotiations resolving all three cases.
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procedures adopted from [Neil v. Biggers, 409 U.S. 188, 199–200
(1972)]:
(1) the opportunity of the witness to view the
perpetrator at the time of the crime, (2) the witness’
degree of attention, (3) the accuracy of the witness’
prior description of the perpetrator, (4) the level of
certainty demonstrated by the witness at the
confrontation, and (5) the length of time between the
crime and the confrontation.
State v. Booth-Harris, 942 N.W.2d 562, 570 (Iowa 2020) (quoting State v. Taft, 506
N.W.2d 757, 762–63 (Iowa 1993)) (alteration in original).
Nelson claims the lineup procedure was impermissibly suggestive because,
in his view, of the twelve photos shown to the car wash patron across two six-pack
lineups, only two of the individuals had “Mohawk” haircuts. 3 While reasonable
minds could differ on how many of the persons depicted in the photo array, if any,
had Mohawk haircuts, we need not decide whether the lineup was impermissibly
suggestive because, even if it was, Nelson cannot satisfy the second step of the
analysis—lack of reliability.
Looking at the factors for reliability from Biggers, 409 U.S. at 199–200, the
car wash patron got a good look at the person who did all the talking, brandished
the knife, and demanded his money. The patron’s attention was focused on the
person wielding the knife, as the patron told police he was confident he would be
able to identify the person who robbed him but would not be able to identify the
cohort serving as lookout. The patron also gave what turned out to be an accurate
description of the robber in terms of age, race, build, skin complexion, and
hairstyle. In terms of confidence, the patron immediately and confidently picked
3 The patron had reported the robber had a “Mohawk” style haircut.
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Nelson out of the lineup as soon as it was shown to him. Finally, the identification
occurred within four days after the robbery.
As noted, with regard to the second step of the analysis regarding reliability,
we consider the totality of the circumstances. See Booth-Harris, 942 N.W.2d at
570. In considering the totality of the circumstances, we note some important and
unique details. On the night of the robbery, upon scouring the area near the
robbery for the reported suspects, police found and apprehended two individuals
nearby who met the description of the two young men involved in the robbery,
including one who had a Mohawk haircut. The car wash patron was brought to the
scene where the two individuals had been apprehended to identify them. As the
State asserts, this “in the field” lineup procedure immediately following the robbery
was inherently more suggestive than the six-pack photo array process used later.
In spite of the more suggestive nature of this “in the field” lineup, the patron
informed law enforcement that those two individuals were not the two involved in
the robbery. In stark contrast during the photo lineup, the patron rejected everyone
in the first six-pack of photos as having been the robber and then immediately
picked out Nelson from the second six-pack. This sequence of events helps
corroborate the fact the patron got a good look at the robber, was confident in his
identification, and was not persuaded to give an unreliable identification based on
the robber’s haircut.
Based on the totality of the circumstances and the five-factor test for
assessing reliability, we do not believe there was a substantial likelihood of
irreparable misidentification. Therefore, had Nelson’s counsel filed a motion to
suppress the patron’s identification of him, it would not have been successful. As
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a result, Nelson failed to meet his burden of establishing counsel breached the
duty of competent representation owed to Nelson by failing to seek suppression of
the identification. See State v. Carroll, 767 N.W.2d 638, 645 (Iowa 2009) (holding
defense counsel has no duty to pursue a meritless issue).
As to Nelson’s claim defense counsel was ineffective for failing to fully
investigate his alibi defense, we need not decide whether counsel breached her
duty, as Nelson failed to meet his burden on the prejudice prong. See State v.
Russell, 897 N.W.2d 717, 730 (Iowa 2017) (holding it is the applicant’s burden to
show ineffective assistance of counsel by a preponderance of the evidence).
Other than his own self-serving testimony, Nelson presented no evidence at the
PCR trial that established an alibi for the offense to which Nelson pleaded guilty.
Having presented no alibi witnesses or alibi evidence at the PCR trial, Nelson failed
to meet his burden of showing the reasonable probability of a different outcome if
he had gone to trial. See Harris, 891 N.W.2d at 188. Furthermore, the evidence
at the PCR trial established Nelson admitted to defense counsel that he committed
the robbery. Having committed the robbery, there was no reasonable probability
defense counsel would have been able to find and present witnesses at trial
establishing Nelson was elsewhere when the robbery was committed even if
counsel had more thoroughly investigated the alibi angle.
2. The Willful Injury Charge (Case Number FECR340382)
Nelson pleaded guilty to the charge of willful injury based on stabbing a
female acquaintance with a knife. He claims counsel was ineffective for failing to
investigate whether the stabbing was accidental. To support his claim the stabbing
was accidental, Nelson relies heavily on a couple of sentences cherry-picked from
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a police report in which the victim said she thought Nelson was joking. However,
Nelson’s claim ignores the rest of the report, which stated the victim initially thought
he was joking but then, when she realized he was not, she tried to flee Nelson’s
presence and barricade herself in a room. Nelson chased after her, forced his way
into the room, and stabbed the victim three times. Given these facts, we find no
breach of duty by defense counsel for failing to further investigate a defense that
the stabbings were accidental. Furthermore, given the fact Nelson pleaded guilty
in this case as part of a global plea agreement that resulted in significant reduction
or dismissal of charges, thus greatly reducing his potential incarceration exposure,
Nelson has not met his burden of establishing he would have passed on the plea
offer and insisted on going to trial. Nelson’s ineffective-assistance-of-counsel
claim in this case is without merit.
3. The Date Robbery (Case Number FECR341512)
A man responding to a newspaper advertisement for a romantic date made
arrangements to meet the person posting the ad. The “date” turned out to be a
close acquaintance and possible girlfriend of Nelson’s. When the man arrived for
the date, Nelson’s acquaintance got into the man’s car, and then Nelson quickly
entered the car through the back passenger door. Nelson held a knife to the man’s
throat and demanded money. Nelson took the man’s wallet, pager, and keys
before exiting the car. The man drove himself to the hospital for treatment of a
slash wound on his neck and a collapsed lung due to a puncture wound. Nelson’s
acquaintance gave a statement supporting the above-stated facts.
As part of a global settlement agreement resolving the three cases
addressed in this opinion, as well as two juvenile robbery cases, Nelson pleaded
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guilty to robbery in the first degree and forgery related to use of the robbed man’s
debit card. Nelson claims his counsel was ineffective for failing to properly
investigate in support of a defense and rushing Nelson into pleading guilty before
a full investigation could be completed.
Nelson’s argument ignores the important detail that his palm print was found
on the back passenger window of the victim’s car, thus corroborating the statement
of Nelson’s accomplice. Given this very damning fact, we find no reasonable
possibility that Nelson would have passed on the favorable global plea offer and
insisted on going to trial. See Weitzel, 905 N.W.2d at 402 (stating the standard for
satisfying the prejudice prong of an ineffective-assistance-of-counsel claim when
the accused pleads guilty).
As to Nelson’s claim that he was rushed into accepting the guilty plea, we
find no merit in this claim. To be sure, this case had not been on file very long
before Nelson accepted the plea offer. There were time constraints placed on
Nelson to accept or reject the global plea offer, as case number FECR333525 was
set to go to trial a business day or two after the date on which Nelson accepted the
deal. These tight deadlines should be expected in negotiations for a global plea
agreement involving several cases on varying timelines. The evidence we find
convincing based on our de novo review is that plea negotiations had been
ongoing for at least a few days before Nelson was called upon to make a final
decision. The attorneys spent hours going over the cases and the plea offers with
Nelson before Nelson was asked to decide. Nelson was permitted to have his
grandfather come into the room to discuss the plea offer. After hours of discussion
and advice from family and counsel, Nelson chose to accept the global plea offer
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that resulted in knocking literally decades off his potential incarceration time. The
record of the plea hearing shows no hesitation or confusion on Nelson’s part. We
find no convincing evidence that establishes any reasonable possibility Nelson
would have rejected the favorable global plea offer and insisted on going to trial.
See id.
V. Conclusion
For the reasons stated, no error was committed by the district court in
rejecting Nelson’s claims his counsel was ineffective by failing to cross-examine a
witness in one case and by failing to pursue suppression issues or conduct an
investigation before he pleaded guilty in three other cases. Therefore, we affirm.
AFFIRMED.