                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1405
                               Filed July 22, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RAYSHAWN D. COLE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,

Judge.



      Rayshawn Cole appeals the judgment and sentence entered following his

guilty plea to burglary in the first degree, theft in the second degree, and

possession of marijuana. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Michael J. Walton, County Attorney, and Kelly G. Cunningham,

Assistant County Attorney, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DOYLE, J.

       Rayshawn Cole appeals the judgment and sentence entered following his

guilty plea to burglary in the first degree, theft in the second degree, and

possession of marijuana.      Cole contends his trial counsel was ineffective in

allowing him to enter a guilty plea and thereby failing to preserve the issues

raised in his motion to suppress. We affirm.

I.     Background Facts and Proceedings

       Following an armed home invasion and robbery by Rayshawn Cole and

four others, the State filed a trial information charging Cole with seven different

criminal offenses. Cole filed a motion to suppress, challenging the stop of the

vehicle he was riding in immediately after the robbery and the “show up”

identification procedure implemented by the police with the victim at the scene of

the stop. Following a hearing, the district court entered a ruling denying Cole’s

motion to suppress, concluding (1) the stopping officer had reasonable suspicion

to stop the vehicle, and (2) although the identification process was impermissibly

suggestive, it did not violate Cole’s due process rights.

       Cole eventually pled guilty to burglary in the first degree, in violation of

Iowa Code 703.1, and 703.2, 713.1, 713.3(1)(b) or (c), and 713.3(2) (2013); theft

in the second degree, in violation of sections 703.1, and 703.2, 714.1(1), and

714.2(2); and possession of marijuana, second offense, in violation of sections

124.401(5), 124.204(4)(m), and 703.1. Following a hearing, the district court

accepted Cole’s plea, entered judgment, and dismissed Cole’s remaining four

charges (per Cole’s plea agreement with the State). The court sentenced Cole to

serve a term of imprisonment not to exceed twenty-five years for the burglary
                                           3


charge, five years for the theft charge, and two years for the possession charge,

all to run concurrently.

       Cole appeals, contending his trial counsel was ineffective in allowing him

to plead guilty rather than request a trial on the minutes in order to preserve his

claims on appeal relating to his motion to suppress. According to Cole, “Had

those issues been preserved the court would have reversed because the district

court erred by denying the motion to suppress.”

II.    Standard of Review

       We review ineffective-assistance-of-counsel claims de novo.                  See

Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). To succeed on such a

claim, Cole must prove both that (1) his counsel failed to perform an essential

duty, and (2) he suffered prejudice as a result of his counsel’s failure. See id.

III.   Discussion

       To address Cole’s ineffective-assistance-of-counsel claim, we begin by

considering if the claim would have been meritorious had it been raised by trial

counsel, because counsel does not provide ineffective assistance if the

underlying claim is meritless. See State v. Halverson, 857 N.W.2d 632, 635

(Iowa 2015). In other words, counsel has no duty to engage in an exercise in

futility. “If, however, an underlying claim has merit, we must determine whether

the failure to make the claim amounted to a breach of duty and whether the

defendant was prejudiced by the breach.”1               Id.; see also Strickland v.

Washington, 466 U.S. 668, 687 (1984).


1
 Here, as the State aptly points out, Cole “fails to make the necessary allegation that
counsel’s failure to advise [him] on the issue of the motion to suppress induced [him] to
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       The following evidence can be gleaned from the record. At approximately

10:25 p.m. on March 24, 2014, Davenport police officers responded to a home to

investigate a home invasion/robbery.          One of the victims, Joseph Goodman,

reported he and a friend, Montro Howard (“E.J.”), were at Goodman’s home

preparing to smoke some marijuana they had purchased when there was a

knock at the door. Goodman answered, and four masked assailants—one with a

gun—came in and ordered him to “get down on the ground.” The assailants took

cash, marijuana, a money box, and some PlayStation accessories and games

before fleeing in a “dark-colored sedan.” Goodman described the assailants as

wearing “dark clothing,” and with one as having “unique” shoes—“gray, white,

and red Nike high tops.”

       Within a few minutes, other officers located a vehicle nearby that was

“very similar” to the description of the suspects’ vehicle. The officers decided to

follow the vehicle and noticed it accelerated away from them. Based on the

location of the vehicle (less than ten blocks away from Goodman’s home), the

similarity of the vehicle to the vehicle described by dispatch (a dark-colored

sedan), and the manner in which the vehicle was accelerating from stop signs,

the officers decided to perform an investigatory stop. When they activated the

emergency lights, the vehicle pulled over and two passengers exited and fled.

plead guilty” and that “had counsel advised [him] of the strength or weakness in the
suppression claim that [he] would not have pled guilty and instead would have chosen to
go to trial.” Such a claim is fundamental to prove the prejudice prong of Cole’s claim.
Specifically, to demonstrate prejudice in the guilty plea context, Cole must show that but
for counsel’s alleged breach, he would not have pled guilty and would have elected to
stand trial. See State v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009). Although we could
affirm on the basis that Cole has failed to advance how he was prejudiced by counsel’s
alleged failure to perform an essential duty, see Anfinson v. State, 758 N.W.2d 496, 499
(Iowa 2008) (stating a claim of ineffective assistance of counsel fails if either element is
lacking), we elect to proceed the merits of his underlying claim.
                                          5


One officer chased the fleeing passengers while the other stayed with the three

individuals remaining in the vehicle. One of the passengers in the vehicle was

Cole. Cole was wearing dark blue jeans, a black hooded sweatshirt, and gray,

white, and red Nike high tops. In the vehicle, officers discovered a money box,

marijuana, and a pill bottle belonging to another person at Goodman’s home at

the time of the robbery.

       After securing the scene of the traffic stop (approximately thirty minutes

after the crime had occurred), an officer brought Goodman from the scene of the

crime to see if he could identify any of the individuals in the vehicle. Goodman

observed the three individuals, one at a time, from his vantage point in the squad

car. Goodman identified Montro as his friend “E.J.” who had been a guest at his

home when the invasion occurred.          Goodman was unable to identify Willie

McNeal as an assailant. Goodman was able to identify the final individual, Cole,

due to his zip-up sweatshirt and his “unique” Nike high-tops. Goodman was

“sure” Cole was one of the assailants—specifically, the one who pointed the gun

at him. With these facts in mind, we turn to Cole’s claims.

       A.   The Stop.      Cole claims the fact that the vehicle “was in the

neighborhood and accelerated away from stop signs” did not give the officers

reasonable suspicion to stop the vehicle. Cole states the police did not observe

a traffic violation, they could not see the people in the car, and the car was not

the same model2 of car that was described by the victims.



2
  The vehicle was described as possibly a Dodge Intrepid; the vehicle stopped was a
Pontiac Grand Am. One of the officers testified an Intrepid and a Grand Am looked “very
similar” in appearance.
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       The State must demonstrate the stopping officer had a reasonable

suspicion criminal activity was occurring or had occurred to justify stopping

Cole’s vehicle. See State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004). The

stopping officer must have specific and articulable facts that, along with rational

inferences, demonstrate that he or she reasonably believed criminal activity was

occurring or imminent.      State v. Vance, 790 N.W.2d 775, 781 (Iowa 2010).

Reasonable suspicion is determined by an objective standard: whether a

reasonable person would deem the officer’s actions appropriate given the totality

of the circumstances confronting the officer at the time of the stop. See State v.

Kreps, 650 N.W.2d 636, 641-42 (Iowa 2002). Unparticularized suspicion is not

an acceptable reason for a stop. Id. at 641.

       In ruling on this issue in Cole’s motion to suppress, the district court

stated:

       In the present case, Officer Antle noticed the suspect’s vehicle
       travelling in close proximity to the scene of the crime. The crime
       had been reported only minutes before. The vehicle closely
       matched the description of the vehicle that the suspects were
       reported to have been driving. The vehicle accelerated quickly
       away from multiple stop signs (the act of accelerating away quickly
       is not alleged to be a crime to justify the stop). The Court finds the
       testimony of Officer Antle credible in all regards.[3] The Court finds
       that these factors constituted reasonable cause for Officer Antle to
       conduct an investigatory stop.

       Considering the totality of the circumstances, we conclude the officers had

reasonable suspicion criminal activity was afoot in order to conduct an

investigatory stop, and an appeal on the district court’s denial of Cole’s motion to

3
   In examining Cole’s claim we are to independently evaluate the totality of the
circumstances as shown by the entire record, and we give considerable deference to the
district court’s findings regarding the credibility of witnesses. See Tague, 676 N.W.2d at
201.
                                         7


suppress would have been unsuccessful.           Because trial counsel could not

provide ineffective assistance where the underlying claim is meritless, Cole’s

ineffective-assistance-of-counsel claim on this ground fails. See Halverson, 857

N.W.2d at 635.

       B. The Identification Process. Cole contends the “show-up” following the

robbery, in which Goodman identified him, was impermissibly suggestive and

violated his due process rights.

       “It is generally conceded that one-on-one confrontations or ‘show-ups’

between an accused and an eyewitness are inherently suggestive.” State v.

Jackson, 387 N.W.2d 623, 631 (Iowa Ct. App. 1986).             “However, the Iowa

Supreme Court has recognized that ‘on-the-scene identification procedures, held

shortly after the crime, are not violative of due process unless the confrontation is

unnecessarily suggestive.’” Id. (quoting State v. Salazar, 213 N.W.2d 490, 493-

94 (Iowa 1973)).

       In ruling on this issue in Cole’s motion to suppress, the district court

stated:

               In this case, the first part of the analysis is whether the
       identification process was impermissibly suggestive. The Court
       finds the identification process was impermissibly suggestive. The
       Court then turns to the second part of the analysis. Goodman had
       ample opportunity during the home invasion to witness the person
       who was holding a gun. Goodman was able to describe what the
       assailant was wearing. Since Goodman was eventually ordered to
       the ground, it is reasonable that he would have an excellent
       opportunity to view the footwear of the assailant. It is also
       reasonable to expect that Goodman would be paying a high degree
       of attention to the assailant based on the threat the assailant posed
       to Goodman and his family and friends. The fact that the assailant
       was holding a gun would draw Goodman’s attention to the
       assailant. Goodman described the assailants as wearing dark
       clothing and hooded sweatshirts.         Goodman also described,
                                         8


       specifically, that one of the assailants was wearing a pair of gray,
       red and white Nike high-tops. Goodman had provided this
       information to Officer Cockshoot before he was transported to the
       scene to try and identify the occupants of the car. Goodman
       candidly told Officer Fury that he was unable to state with any
       certainty whether Willie McNeal was or was not an assailant.
       Goodman identified Montro Howard as his friend E.J. who had
       been a guest at his home at the time of the home invasion. Finally,
       Goodman was able to tell Officer Fury that he could identify the
       high-tops and the zipped sweatshirt that were worn by Rayshawn
       Cole as the same sweatshirt and high-tops that were worn by an
       assailant in this matter. The identification process took place only
       30 minutes after the crime had occurred. Under this analysis, the
       Court finds that the identification process did not violate the
       defendant’s due process rights.

       Considering the totality of the circumstances, we conclude the presence of

the officers was a “usual and necessary element in the ordinary identification

confrontation,” and the fact that Cole was handcuffed is not sufficient to support a

claim of suggestiveness. See Jackson, 387 N.W.2d at 631. Although these

elements are suggestive, they are not so unnecessarily suggestive that they

violated Cole’s due process rights. See Salazar, 213 N.W.2d at 493-95 (holding

“show-up” was not unnecessarily suggestive when suspects were in handcuffs,

were in the presence of twelve officers, and were placed against a squad car for

identification one hour after robbery occurred); Jackson, 387 N.W.2d at 630-32

(holding “show-up” was not unnecessarily suggestive when suspect was

handcuffed, placed in police car, described as someone thought to be involved in

a robbery, and brought to gas station for identification fifteen to twenty minutes

following the robbery). Moreover, under these circumstances, the procedure did

not give rise to a “very substantial likelihood of irreparable misidentification.”

State v. Mark, 286 N.W.2d 396, 405 (Iowa 1979); see also Salazar, 213 N.W.2d

at 495 (noting such prompt on-the-scene identifications promote fairness by
                                        9

assuring reliability); Jackson, 387 N.W.2d at 632 (same). Again, because trial

counsel could not provide ineffective assistance where the underlying claim is

meritless, Cole’s ineffective-assistance-of-counsel claim fails.   See Halverson,

857 N.W.2d at 635.

IV.   Conclusion

      Upon consideration of the issues raised on appeal, we affirm Cole’s

judgment and sentence for burglary in the first degree, theft in the second

degree, and possession of marijuana.

      AFFIRMED.
