               IN THE SUPREME COURT OF IOWA
                               No. 08–0533

                             Filed July 9, 2010


STATE OF IOWA,

      Appellee,

vs.

ANDREW RUSSELL JOHNSON,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Scott D.

Rosenberg, Joel D. Novak, and Robert A. Hutchison, Judges.



      Defendant seeks further review of court of appeals’ decision

affirming district court’s denial of his pretrial motions finding substantial

evidence supports his conviction and holding he failed to preserve an

ineffective-assistance-of-counsel   claim    for   postconviction    review.

DECISION OF COURT OF APPEALS VACATED IN PART; DISTRICT

COURT JUDGMENT AFFIRMED.



      Gary D. Dickey, Jr. of Dickey & Campbell Law Firm, P.L.C.,

Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Cristen O. Douglass (until

withdrawal) and then Elisabeth S. Reynoldson, Assistant Attorneys
                                    2

General, John P. Sarcone, County Attorney, and Steven M. Foritano,

Assistant County Attorney, for appellee.
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TERNUS, Chief Justice.

       This matter comes to us on further review of the court of appeals’

decision affirming the second-degree murder conviction of appellant,

Andrew Russell Johnson. The court of appeals rejected Johnson’s claims

that the district court erred in denying his motion to suppress and in

determining he was competent to stand trial. The court of appeals also

held there was substantial evidence in the record to support Johnson’s

conviction.    Finally, the court of appeals refused Johnson’s request to

preserve his ineffective-assistance-of-counsel claim based on trial

counsel’s failure to assert that Johnson was a victim of selective

prosecution because Johnson had failed to articulate this claim on

appeal with the requisite specificity.

       We granted Johnson’s application for further review to consider

two issues:       (1) the court of appeals’ review of the trial court’s

determination of the defendant’s competency to stand trial for correction

of errors of law, and (2) the court of appeals’ decision that Johnson’s

ineffective-assistance-of-counsel claim was too general to preserve. See

Anderson v. State, 692 N.W.2d 360, 363 (Iowa 2005) (“On further review,

we can review any or all of the issues raised on appeal or limit our review

to just those issues brought to our attention by the application for

further review.”); State v. Doggett, 687 N.W.2d 97, 99 (Iowa 2004)

(declining to exercise discretion on further review to consider all issues

raised on appeal, deciding instead to consider only the ineffective-

assistance-of-counsel claim).        Upon our review, we vacate the court of

appeals’ decision on both issues, 1 affirm the district court’s judgment,


       1The   court of appeals’ decision stands as the final decision with respect to the
other issues raised on appeal that we do not address. See Everly v. Knoxville Cmty.
Sch. Dist., 774 N.W.2d 488, 492 (Iowa 2009).
                                     4

and preserve the defendant’s ineffective-assistance-of-counsel claim for

postconviction relief.

      I. Competency to Stand Trial.

      A. Standard of Review.         Before we review the trial court’s

determination that Johnson was competent to stand trial, we address

Johnson’s contention the court of appeals applied an incorrect standard

of review. The court of appeals reviewed the trial court’s decision on this

issue for correction of errors of law.      Johnson asserts review of a

competency decision should be de novo because a claim the defendant is

not competent to stand trial implicates the defendant’s due process

rights.   See Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S. Ct. 1373,

1376, 134 L. Ed. 2d 498, 505–06 (1996).

      This issue was addressed in a recent decision in which we held the

constitutional basis of a claim the defendant is not competent to be tried

requires a de novo review on appeal. State v. Lyman, 776 N.W.2d 865,

873 (Iowa 2010). Therefore, we will review the trial court’s decision on

the issue of the defendant’s competency de novo.

      B. Applicable Legal Principles. In Lyman, we reviewed the legal

principles that govern a defendant’s claim of incompetency to stand trial:

      At common law, the State could not try a criminal defendant
      if that person’s mental condition was such that he or she
      lacked the capacity to understand the nature and object of
      the proceedings, to consult with counsel, and to assist in
      preparing a defense. The Supreme Court has stated the test
      to determine if a criminal defendant is competent to stand
      trial is whether the person “ ‘has sufficient present ability to
      consult with [counsel] with a reasonable degree of rational
      understanding—and whether [the person] has a rational as
      well as factual understanding of the proceedings.’ ” In Iowa,
      we define the test as whether “the defendant is suffering
      from a mental disorder which prevents the defendant from
      appreciating the charge, understanding the proceedings, or
      assisting effectively in the defense.” The common thread
      running through these tests is that a criminal defendant
                                           5
      must be able to effectively assist counsel in his or her
      defense.
            We presume a defendant is competent to stand trial.
      The defendant has the burden of proving his or her
      incompetency to stand trial by a preponderance of the
      evidence. If the evidence is in equipoise, the presumption of
      competency prevails.

Id. at 873–84 (quoting Dusky v. United States, 362 U.S. 402, 402, 80

S. Ct. 788, 789, 4 L. Ed. 2d 824, 825 (1960) and Iowa Code § 812.3(1)

(2005)) (citations omitted).

      Here, the defendant does not contest his ability to appreciate the

charge against him and understand the proceedings. Rather, he asserts

his borderline personality disorder prevented him from assisting

effectively in his defense.

      C. Discussion.       About two months before Johnson’s scheduled

trial on a first-degree murder charge, he requested a hearing on his

competency to stand trial.       A hearing was held, at which both parties

presented expert testimony.

      Johnson’s expert, psychologist Dr. Jeffrey Kline, conducted a

thorough review of Johnson’s long history of treatment for mental

disorders, administered various psychological tests to Johnson, and

extensively interviewed the defendant.            Dr. Kline opined that Johnson

suffered from a borderline personality disorder that creates “an almost

constant   interference”      with   his       relationship   with   his   attorneys.

Johnson’s illness, according to Dr. Kline, manifests itself in emotional

variability and paranoia. Dr. Kline noted that Johnson exhibited distrust

of his lawyers and often thought they were conspiring against him. As a

result, Dr. Kline believed Johnson “[a]t times . . . may not be able to

consider rationally the advice of counsel.” Dr. Kline concluded “Johnson
                                     6

is unable to effectively assist in his own defense and therefore [is]

incompetent to proceed in this matter.”

      The State’s expert, psychiatrist Dr. James Dennert, spent less time

in assessing Johnson’s competency to stand trial, but reviewed pertinent

documents, including Dr. Kline’s reports, and interviewed the defendant

for several hours. Dr. Dennert opined that Johnson did not suffer from a

mental illness that would prevent him from assisting in his own defense.

Dr. Dennert’s opinion was based to some extent on his conclusion that “a

good deal of what [Johnson] told [him] is best interpreted as being self-

serving.” Dr. Dennert believed Johnson repeated to him and others what

he had read in Dr. Kline’s reports and elsewhere “as a means of trying to

help his case.” Dr. Dennert concluded Johnson was “perfectly capable of

assisting his attorneys effectively.” He noted Johnson may not choose to

do so, but his failure to assist his attorneys was a matter of choice.

      We also have the benefit of the trial court’s observations of the

defendant at the competency hearing.         In concluding Johnson was

competent, the trial court noted Johnson’s demeanor in the courtroom

was appropriate, and he consulted with one or both of his attorneys at

various times during the proceeding.       The court also observed in its

ruling that there were no professional statements by the defendant’s

attorneys or other evidence that Johnson’s attorneys were unable to

communicate with him “regarding his case and any other issues in a

rational and logical manner.”

      After reviewing the record, we are persuaded by the testimony of

Dr. Dennert and the trial court’s observations and conclude that

Johnson failed to prove by a preponderance of the evidence that he was

not competent to stand trial. Accordingly, we affirm the decision of the

trial court on this issue.
                                     7

      II. Ineffective-Assistance-of-Counsel Claim.

      A. Background Facts and Proceedings.           Johnson was charged

with first-degree murder in the death of Matthew Stegman.            Several

individuals participated to some degree in Stegman’s murder. Of those

involved, all but Alexandra Habeck were charged with first-degree

murder.   On appeal, Johnson claims the prosecution’s decision not to

charge Habeck constituted a violation of his right to equal protection

under the United States Constitution and the Iowa Constitution.          See

generally Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 506, 7

L. Ed. 2d 446, 453 (1962) (holding selectivity in prosecution violates the

Equal Protection Clause when the decision was “deliberately based upon

an unjustifiable standard such as race, religion, or other arbitrary

classification”). Johnson claims that he was less culpable than Habeck,

given that Johnson did not assault or kill the victim and left the scene

during the commission of the murder while Habeck actively assisted in

the physical assault of the victim and held the shirts of two other

defendants to keep blood from getting on their clothes during the

murder.

      Johnson’s trial counsel did not make a selective-prosecution claim

in the district court. On appeal, Johnson’s appellate counsel suggested

in his brief that trial counsel’s failure to raise this claim could have

resulted from a belief that the county attorney’s charging decisions were

not yet final or could constitute ineffective assistance of counsel. In light

of this uncertainty, appellate counsel asserted the record was not

sufficient to determine on direct appeal whether trial counsel rendered

ineffective assistance and this claim should be preserved for a

postconviction-relief proceeding.     The court of appeals refused to

preserve the claim on the ground that it was “too general in nature”
                                     8

because the defendant had not specified “which, if any, impermissible

classification the prosecutor allegedly based the charging decision on,

nor [had the defendant made] any other specific argument with regard to

this issue.”

       B. Governing Legal Principles.       Iowa Code chapter 822 (2007)

provides a procedure for persons “convicted of, or sentenced for, a public

offense” to assert a claim for postconviction relief. Iowa Code § 822.2(1).

This chapter includes a claim/issue preservation provision that states:

              All grounds for relief available to an applicant under
       this chapter must be raised in the applicant’s original,
       supplemental or amended application. Any ground finally
       adjudicated or not raised, or knowingly, voluntarily, and
       intelligently waived in the proceeding that resulted in the
       conviction or sentence, or in any other proceeding the
       applicant has taken to secure relief, may not be the basis for
       a subsequent 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.

Id.   § 822.8.   We    have   interpreted   this   provision   to   require   a

postconviction-relief applicant to raise any ineffective-assistance claims

on direct appeal or “show sufficient reasons why any ground for relief

asserted in a postconviction relief petition was not previously asserted on

direct appeal.” Bugley v. State, 596 N.W.2d 893, 896 (Iowa 1999); accord

Bledsoe v. State, 257 N.W.2d 32, 33–34 (Iowa 1977). If the defendant

fails to prove a sufficient reason for failing to raise a claim on direct

appeal, he is precluded from asserting the claim in a postconviction

proceeding. Bugley, 596 N.W.2d at 896; Bledsoe, 257 N.W.2d at 34.

       Not only have our cases required that ineffective-assistance-of-

counsel claims be raised on direct appeal, our cases have also required a

fairly specific description of such claims before they would be preserved

for a postconviction-relief proceeding. In order to preserve an ineffective-
                                    9

assistance claim, a defendant has been required to make a sufficient

record on direct appeal supporting the legitimacy of the claim:

            To preserve claims of ineffective assistance of counsel
      for postconviction review, a defendant must make some
      minimal showing from which this court can assess the
      potential viability of his or her claim. Such a showing
      should not only demonstrate some need for further
      development of the record, but should indicate why the
      challenged actions are believed to have been ineffective and
      what prejudice is likely to have resulted from them. The
      bald assertion that certain acts constitute ineffective
      assistance of counsel will be insufficient to preserve the
      question for postconviction proceedings.

State v. Wagner, 410 N.W.2d 207, 215 (Iowa 1987) (citations omitted);

accord State v. White, 337 N.W.2d 517, 519 (Iowa 1983); cf. Dunbar v.

State, 515 N.W.2d 12, 15 (Iowa 1994) (applying similar specificity

requirement to claims of ineffective assistance of postconviction-relief

counsel made in appeal of adverse judgment in postconviction-relief

action). In Wagner, we concluded that, because the defendant had not

provided “definitive instances of possible prejudice flowing from counsel’s

challenged actions,” the defendant had failed to raise a “viable claim of

ineffective assistance.”   410 N.W.2d at 215.   Therefore, we held, there

was “no basis for preserving these issues for postconviction review.” Id.

      Subsequently, in 2004, the legislature enacted Iowa Code section

814.7.   2004 Iowa Acts ch. 1017, § 2 (codified at Iowa Code § 814.7

(2005)). That section provides:

      814.7. Ineffective assistance claim on appeal in a
      criminal case.
             1. An ineffective assistance of counsel claim in a
      criminal case shall be determined by filing an application for
      postconviction relief pursuant to chapter 822, except as
      otherwise provided in this section. The claim need not be
      raised on direct appeal from the criminal proceedings in order
      to preserve the claim for postconviction relief purposes.
             2. A party may, but is not required to, raise an
      ineffective assistance claim on direct appeal from the
                                        10
      criminal proceedings if the party has reasonable grounds to
      believe that the record is adequate to address the claim on
      direct appeal.
            3. If an ineffective assistance of counsel claim is
      raised on direct appeal from the criminal proceedings, the
      court may decide the record is adequate to decide the claim
      or may choose to preserve the claim for determination under
      chapter 822.

Iowa Code § 814.7 (emphasis added). We have held section 814.7 applies

retroactively to all criminal cases. See Hannan v. State, 732 N.W.2d 45,

50–51 (Iowa 2007).

      In State v. Straw, 709 N.W.2d 128 (Iowa 2006), we summarized the

law set forth in this new statute, essentially concluding the statute

means what it says:

             An ineffective-assistance-of-counsel claim in a criminal
      case “need not be raised on direct appeal from the criminal
      proceedings in order to preserve the claim for postconviction
      relief purposes.”      Iowa Code § 814.7(1) (2007).         The
      defendant may raise the ineffective assistance claim on
      direct appeal if he or she has reasonable grounds to believe
      the record is adequate to address the claim on direct appeal.
      Id. § 814.7(2). If an ineffective-assistance-of-counsel claim is
      raised on direct appeal from the criminal proceedings, we
      may decide the record is adequate to decide the claim or may
      choose to preserve the claim for postconviction proceedings.
      Id. § 814.7(3).

Straw, 709 N.W.2d at 133.       As we later stated in Hannan, “[s]ection

814.7 allows a defendant to raise ineffective-assistance-of-counsel claims

for the first time in [postconviction-relief] proceedings.” 732 N.W.2d at

50. Thus, section 814.7 essentially nullified this court’s interpretation of

section 822.8 in Bledsoe and Bugley that ineffective-assistance claims

must first be raised on direct appeal.

      Notwithstanding     legislative    abrogation   of   the   preservation

requirement as it applied to direct appeals, we stated in a 2007 decision

that “[c]laims of ineffective assistance of counsel on direct appeal are

preserved for postconviction relief only if the defendant makes a minimal
                                    11

showing of the potential viability of the claim.”   State v. Alloway, 707

N.W.2d 582, 587 (Iowa 2006) (emphasis added) (citing Wagner, 410

N.W.2d at 215).      Because the defendant in Alloway had failed “to

sufficiently articulate the prejudice prong of his claim,” we refused to

preserve the claim for a postconviction-relief action.    Id.   We did not

consider the effect of section 814.7 on the specificity requirement we had

imposed in Wagner and applied in Alloway. The court of appeals, in its

opinion in the present case, questioned the continued viability of the

specificity requirement in light of the adoption of section 814.7, but

believed it was constrained to follow Alloway.

      Upon our examination of this issue, we overrule our holding in

Alloway that a defendant is required to demonstrate the potential

viability of any ineffective-assistance claim raised on direct appeal in

order to preserve the claim for postconviction relief. We think it would be

inconsistent with the rule that a defendant is not required to raise

ineffective-assistance claims on direct appeal in order to preserve such

claims for postconviction relief, yet hold that such claims cannot be

preserved when they are raised in a general or conclusory manner on

direct appeal. Moreover, section 814.7(3) clearly gives the appellate court

only two choices when an ineffective-assistance claim is raised on direct

appeal:   (1) “decide the record is adequate to decide the claim,” or (2)

“choose to preserve the claim for determination under chapter 822.”

Iowa Code § 814.7(3). Based on the provisions of section 814.7, we hold

defendants are no longer required to raise ineffective-assistance claims

on direct appeal, and when they choose to do so, they are not required to

make any particular record in order to preserve the claim for

postconviction relief.
                                    12

      Of course, if a defendant wishes to have an ineffective-assistance

claim resolved on direct appeal, the defendant will be required to

establish an adequate record to allow the appellate court to address the

issue. If the defendant requests that the court decide the claim on direct

appeal, it is for the court to determine whether the record is adequate

and, if so, to resolve the claim.   If, however, the court determines the

claim cannot be addressed on appeal, the court must preserve it for a

postconviction-relief proceeding, regardless of the court’s view of the

potential viability of the claim.

      C. Discussion.      We now consider Johnson’s claim of ineffective

assistance of counsel based on trial counsel’s failure to make a claim of

selective prosecution.     Johnson does not request that his claim of

ineffective assistance of counsel be resolved on direct appeal, as he

acknowledges further development of the record on this issue is

necessary.    Therefore, consistent with Johnson’s right under section

814.7(1) to forego raising his ineffective-assistance-of-counsel claim on

direct appeal and as required by section 814.7(3), we preserve the issue

of trial counsel’s ineffective assistance regarding Johnson’s selective-

prosecution claim for a postconviction-relief proceeding.

      III. Disposition.

      We vacate that part of the court of appeals’ decision addressing the

defendant’s claims that (1) the trial court erred in finding him competent

to stand trial, and (2) his trial counsel rendered ineffective assistance in

failing to raise a claim of selective prosecution. Upon our de novo review

of the trial court’s competency ruling, we affirm. Because the record is

not sufficient on appeal to resolve Johnson’s ineffective-assistance-of-

counsel claim, we preserve that claim for postconviction relief.
                                  13

    COURT OF APPEALS DECISION VACATED IN PART; DISTRICT

COURT JUDGMENT AFFIRMED.

    All justices concur except Streit, J., who takes no part.
