                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0885
                               Filed April 3, 2019


PAUL HENRY CANNON,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.



      Paul Cannon appeals the denial of his application for postconviction relief.

AFFIRMED.




      Eric D. Tindal of Keegan and Tindal, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee State.



      Considered by Vogel, C.J., and Vaitheswaran and Potterfield, JJ.
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VOGEL, Chief Judge.

       Paul Cannon appeals the denial of his application for postconviction relief

(PCR). He argues his PCR counsel was ineffective for failing to obtain an expert

opinion on his competency and for failing to challenge the procedure used during

the competency determination. We find his PCR counsel did not commit structural

error and the procedure during the competency determination complied with due

process. Therefore, we affirm.

       In November 2012, Cannon was charged with robbery in the first degree as

an habitual offender. On February 1, 2013, he pled guilty in a hearing to robbery

in the second degree as an habitual offender. On February 6, he complained of

evidentiary deficiencies and coercion in a pro se filing, which the court treated as

a motion in arrest of judgment and scheduled for hearing.            After multiple

continuances, and with new counsel appointed for Cannon, the court heard the

matter on May 30, wherein Cannon requested and the court approved a

competency evaluation under Iowa Code chapter 812 (2013).               A licensed

psychologist then interviewed Cannon and, in a report filed June 25, opined

“[a]lthough [Cannon] has a history of learning problems and psychiatric disorder,

the present evaluation suggests that he is embellishing his symptoms, but he also

is able to demonstrate an adequate rational/factual understanding of the legal

process and can therefore be considered competent to stand trial.” On July 10,

the court determined Cannon was competent to proceed, denied his motion in

arrest in judgment, and sentenced him pursuant to his plea to a term of

incarceration not to exceed fifteen years. He appealed his sentence, and our

supreme court dismissed the appeal as frivolous on December 11, 2014.
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       On May 22, 2015, Cannon filed his application for PCR, asserting his

counsel was ineffective for failing to object to deficiencies in his competency

evaluation and asking the court to set aside his conviction and schedule a jury trial.

A hearing was held on April 21, 2017, wherein Cannon was the only witness,

although Cannon’s school records and medical records from the Iowa Department

of Corrections were received into evidence. The court also took judicial notice of

the underlying criminal record, which included the competency report.            On May

11, the court denied his application for PCR, finding no ineffective assistance

related to his competency evaluation and “at the time Cannon entered his plea of

guilty herein, he was competent to stand trial.” He now appeals.

       We generally review the denial of PCR for correction of errors at law. Lado

v. State, 804 N.W.2d 248, 250 (Iowa 2011). However, we review an ineffective-

assistance claim in a PCR de novo. Id. Generally, “[t]o establish an ineffective-

assistance-of-counsel claim, a claimant must demonstrate ‘(1) his trial counsel

failed to perform an essential duty, and (2) this failure resulted in prejudice.’” Id.

at 251 (quoting State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)). “The claimant

must prove both elements by a preponderance of the evidence.” Id.

       Cannon argues his PCR “counsel failed to have an expert evaluate him, the

prior competency process, or even render an opinion on what the records

presented . . . as it relates to Cannon’s competency.”1 According to Cannon, this


1
 In addition to finding Cannon was competent to stand trial, the PCR court found no
authority for him to request an additional expert evaluation for his competency hearing.
However, Iowa Code section 812.3(2) states: “Any party is entitled to a separate
psychiatric evaluation by a psychiatrist or licensed, doctorate-level psychologist of their
own choosing.” We acknowledge Cannon’s counsel could have requested an additional
expert evaluation and do not rely on the court’s mistaken belief of the absence of such
authority.
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failure resulted in “structural error” that affects “the framework within which the trial

proceeds.” Id. at 252 (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).

Structural errors include:

       (1) [where] counsel is completely denied, actually or constructively,
       at a crucial stage of the proceeding; (2) where counsel does not
       place the prosecution’s case against meaningful adversarial testing;
       or (3) where surrounding circumstances justify a presumption of
       ineffectiveness, such as where counsel has an actual conflict of
       interest in jointly representing multiple defendants.

Id. at 252. Our supreme court has found structural error where an unlawful “asset

freeze violated [the defendant’s] constitutional right to be master of his defense,”

and where defendant’s counsel failed “to seek a continuance to prevent dismissal

under Iowa Rule of Civil Procedure 1.944 or to make application to the court for

the reinstatement of his case after it was dismissed by operation of the rule.”

Krogmann v. State, 914 N.W.2d 293, 326 (Iowa 2018); Lado, 804 N.W.2d at 253.

When structural error occurs, “‘[n]o specific showing of prejudice [is] required’ as

the criminal adversary process itself is ‘presumptively unreliable.’” Lado, 804

N.W.2d at 252 (quoting United States v. Cronic, 466 U.S. 648, 659 (1984)).

       We find Cannon’s PCR counsel took meaningful steps in an attempt to show

his trial counsel was ineffective during the competency determination. His PCR

counsel introduced his medical and school records as evidence and examined

Cannon as a witness at the PCR hearing. His PCR counsel also argued at the

hearing and in a brief that Cannon has long-term mental and psychiatric issues

and has been identified as low-functioning since his youth. The fact PCR counsel

did not also introduce an expert opinion as to Cannon’s competency at the PCR

hearing to counter the psychologist’s opinion of Cannon’s competency during the
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plea proceeding does not affect the very foundation of the PCR proceeding. See

id. Therefore, Cannon’s PCR counsel did not commit structural error by failing to

introduce an expert opinion.

      Cannon also argues his PCR counsel was ineffective for failing to object to

the procedure used in the competency determination. Specifically, he argues that

holding the competency hearing soon after the psychologist issued his opinion

violates his procedural due process rights. “At the very least, procedural due

process requires notice and opportunity to be heard in a proceeding that is

adequate to safeguard the right for which the constitutional protection is invoked.

However, [n]o particular procedure violates [due process] merely because another

method may seem fairer or wiser.” State v. Seering, 701 N.W.2d 655, 665–66

(Iowa 2005) (internal quotations and quotation marks omitted). The psychologist’s

opinion was filed on June 25, and the court heard the matter and found Cannon

competent on July 10. This period of more than two weeks between the filing of

the psychologist’s opinion and the hearing provided him with a sufficient “notice
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and opportunity to be heard.” Id. Therefore, his PCR counsel was also not

ineffective for failing to object to the procedure of his competency determination. 2

       AFFIRMED.




2
  We further note the relief Cannon ultimately seeks—setting aside his guilty plea—may
not be available by challenging the competency determination made during consideration
of his motion in arrest of judgment. A finding of incompetency results in the suspension
of “criminal proceedings indefinitely” and an order of treatment rather than setting aside
findings already made. Iowa Code § 812.5(2). If the defendant’s competency is later
restored, the proceedings are reinstated. Id. § 812.8(5). A defendant may be able to set
aside a guilty plea by showing it was not “given voluntarily, knowingly, and intelligently”
and with a factual basis. State v. Meron, 675 N.W.2d 537, 542 (Iowa 2004). As the district
court observed during the hearing on the motion in arrest of judgment, the plea court “very
kindly and patiently and thoroughly went over all of the issues that needed to be addressed
in order to determine whether the defendant was providing a knowing, intelligent and
voluntary plea of guilty to the lesser-included offense of Robbery in the Second Degree.”
