                    IN THE COURT OF APPEALS OF IOWA

                                      No. 17-1269
                               Filed November 21, 2018


MARTIN RAY HIATT,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Richard H.

Davidson, Judge.



      Applicant appeals the district court’s denial of his application seeking

postconviction relief from his convictions of three counts of second-degree sexual

abuse and four counts of indecent contact with a child. AFFIRMED.



      Martin R. Hiatt, Fort Dodge, pro se appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.



      Considered by Danilson, C.J., Potterfield, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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SCOTT, Senior Judge.

       Martin Hiatt appeals the district court’s denial of his application seeking

postconviction relief from his convictions of three counts of second-degree sexual

abuse and four counts of indecent contact with a child. Hiatt has not shown he

received ineffective assistance of counsel or provided any other basis to support

his request for postconviction relief. We affirm the district court’s decision denying

Hiatt’s application for postconviction relief.

       I.     Background Facts & Proceedings

       Hiatt was convicted of three counts of sexual abuse in the second degree,

in violation of Iowa Code sections 709.1(3) and 709.3(2) (2011), and four counts

of indecent contact with a child, in violation of section 709.12(2). His convictions

were affirmed on appeal. State v. Hiatt, No. 12-0555, 2013 WL 1749917, at *6

(Iowa Ct. App. Apr. 24, 2013). We rejected Hiatt’s claim he was entitled to a new

trial due to the district court’s failure to sequester certain witnesses. Id. at *3‒4.

We concluded he had not preserved error on his claim the court improperly

responded to a question by the jury. Id. at *4‒5. Additionally, we found Hiatt failed

to show he received ineffective assistance because defense counsel did not object

when the court failed to administer an oath to a witness or based on the

prosecutor’s closing argument. Id. at *5‒6.

       Hiatt filed an application for postconviction relief, claiming he received

ineffective assistance because defense counsel did not object to: (1) the court’s

failure to administer the oath to a witness; (2) an improper closing argument by the

prosecutor; (3) the court’s process of sequestering witnesses; and (4) the court’s

response to a jury question. The district court found the first three issues had
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already been decided adversely to Hiatt on direct appeal and he was barred from

relitigating these issues in his application for postconviction relief. On the fourth

claim, the district court determined Hiatt was not entitled to relief, stating,

“Considering the totality of the circumstances, Hiatt has failed to show that the

court’s instruction coerced the jury to reach a unanimous agreement to convict him

on any of the three counts of sexual abuse in the second degree or the four counts

of indecent contact with a child.” Hiatt appeals the district court’s decision.

       II.    Ineffective Assistance

       We conduct a de novo review of claims of ineffective assistance of counsel.

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of

ineffective assistance of counsel, an applicant must prove (1) counsel failed to

perform an essential duty and (2) prejudice resulted to the extent it denied the

defendant a fair trial. Id. An applicant’s failure to prove either element by a

preponderance of the evidence is fatal to a claim of ineffective assistance. State

v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

       A.     Hiatt claimed he received ineffective assistance because defense

counsel did not properly object when the trial court failed to administer the oath to

a witness, when the prosecutor made an improper closing argument, or to the

court’s process of sequestering witnesses. These issues were decided in Hiatt’s

direct appeal and cannot be raised in this postconviction action. See Holmes v.

State, 775 N.W.2d 733, 735 (Iowa Ct. App. 2009) (“Our decision on direct appeal

is thus final as to all issues decided therein, and is binding upon both the

postconviction court and this court in subsequent appeals.”). A party may not
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relitigate issues decided in a direct appeal. Id. Therefore, we do not further

address these issues.

       B.     Hiatt claims he received ineffective assistance because defense

counsel did not object to the trial court’s response to a jury question. 1 On the

second day of deliberations, the jury advised the court they were unable to reach

a unanimous verdict on each count. Outside the presence of the jury, the court

told the parties its plan was as follows:

       I’m going to instruct the jury that counts to which there is the inability
       to render a unanimous verdict are subject to a mistrial and would
       then have to start the trial process all over again. I would ask them
       to resume their deliberations, and if there are counts to which they
       can render a unanimous verdict, to do so, and to then tell me which
       counts they are unable to render a unanimous verdict, and then send
       them back for deliberations and see where it goes from there.

Defense counsel stated, “I would object to asking anything further than whether or

not they can reach a verdict on all counts.” The court overruled the objection and

stated, “[W]e will proceed in the manner that I have just outlined.” The court then

called in the jury and followed through with its proposed plan.

       Hiatt claims defense counsel should have objected to the court’s language

because it was likely to cause the jury to believe they would have to start

deliberations all over if they did not reach a unanimous verdict on each count. He

states the court’s answer to the jury’s question did not inform the jury a different

jury would consider the charges against him if there was a mistrial.

       In considering verdict-urging instructions, “[t]he ultimate test is whether the

instruction improperly coerced or helped coerce a verdict or merely initiated a new


1
  This claim was also raised in the direct appeal, but we determined the issue had not
been preserved for appellate review. Hiatt, 2013 WL 1749917, at *4‒5.
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train of real deliberation which terminated the disagreement.”2 State v. Campbell,

294 N.W.2d 803, 808 (Iowa 1980). “The supplemental charge must also be

evaluated ‘in its context and under all the circumstances.’” State v. Wright, 772

N.W.2d 774, 778 (Iowa Ct. App. 2009) (citation omitted). “In applying this test, we

are mindful that the trial judge has considerable discretion in determining whether

the verdict-urging instructions should be given and that each case is to be decided

on its own circumstances.” Campbell, 294 N.W.2d at 808–09.

       The postconviction court ruled:

              The jury deliberated for more than eight hours and had
       reached unanimous agreement on some of the counts by midday on
       the second day of deliberations. Presumably the jury seriously
       considered the evidence and followed all of the court’s instructions.
       The final instruction given in response to the jury’s question properly
       informed the jury to only return a verdict on counts to which they all
       agree. The jury ultimately found Hiatt not guilty on two of the counts.
       While, the trial judge’s response to the jury’s question was vague as
       to what would happen if the court declared a mistrial on the counts
       where the jury could not agree, there is no evidence that the jury
       believed they personally would be required to return and start anew.
       Considering the totality of the circumstances, Hiatt has failed to show
       that the court’s instruction coerced the jury to reach a unanimous
       agreement to convict him on any of the three counts of sexual abuse
       in the second degree or the four counts of indecent contact with a
       child.

       We agree with the postconviction court’s conclusion the trial court’s

response to the jury’s question was not improper. The evidence does not show

the answer “improperly coerced or helped coerce a verdict.” See id. at 808. We

conclude Hiatt has not shown he received ineffective assistance on the ground




2
  A verdict-urging instruction is sometimes called an “Allen charge.” See State v. Cornell,
266 N.W.2d 15, 19 (Iowa 1978).
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defense counsel failed to object to the court’s language in answering the jury’s

question.

       C.     On appeal, Hiatt raises new issues claiming he received ineffective

assistance because defense counsel had a conflict of interest, in that counsel (1)

did not demand he be charged by a grand jury indictment, rather than a trial

information; (2) did not insist he be tried by a jury of his peers; (3) was primarily

obligated to the Iowa Bar Association, rather than to Hiatt; and (4) could not

zealously represent Hiatt as an officer of the court.

       An attorney’s conflict of interest may be raised as a claim of ineffective

assistance of counsel. State v. Smitherman, 733 N.W.2d 341, 345 (Iowa 2007).

In a claim of a conflict of interest, an applicant must “make a showing whereby we

can presume prejudice.” Id. at 346. An applicant has the burden of proof to

establish a claim of ineffective assistance of counsel by a preponderance of the

evidence. See State v. Cromer, 765 N.W.2d 1, 7 (Iowa 2009).

       We first note there is no constitutional right to be charged by an indictment

instead of a trial information. State v. Finnegan, 237 N.W.2d 459, 460 (Iowa 1976).

Hiatt has presented no evidence to support his claim he was not tried by a jury of

his peers and, thus, has not established this claim by a preponderance of the

evidence. See Cromer, 765 N.W.2d at 7. Furthermore, Hiatt has not shown

defense counsel had a conflict of interest or was unable to zealously represent him

because he was a member of the Iowa Bar Association and an officer of the court.

All attorneys are considered to be officers of the court. See State v. Walker, 804

N.W.2d 284, 294 (Iowa 2011).         Also, many are members of the Iowa Bar

Association. If Hiatt’s claims were accepted, there would be no possibility of
                                          7


conflict-free representation by an attorney. We determine Hiatt has not shown he

received ineffective assistance based on a conflict of interest by his defense

counsel.

       III.   Other Pro Se Issues

       A.     Hiatt raises several issues asserting the trial court did not have

jurisdiction over his criminal case. He questions the constitutional foundation for

the court’s jurisdiction. Criminal jurisdiction in Iowa is governed by Iowa Code

section 803.1. Under this section, a person is subject to prosecution in Iowa for

“an offense committed either wholly or partially within this state.” Iowa Code

§ 803.1(1)(a). “Territorial jurisdiction is an essential element of a crime which the

[S]tate is required to prove beyond a reasonable doubt.” State v. Wedebrand, 602

N.W.2d 186, 189 (Iowa Ct. App. 1999). The evidence presented in the criminal

trial shows the offenses occurred in Pottawattamie County in Iowa. There is no

factual basis to support Hiatt’s claim the court lacked jurisdiction.

       In relation to this claim, Hiatt claims he should have had representation by

an attorney who was not beholden to the improper jurisdiction imposed over him

by the State. Because we determine the court had jurisdiction in Hiatt’s criminal

case, we reject his jurisdictional claim as it relates to representation by defense

counsel.

       B.     Hiatt claims he should have been charged by a grand jury indictment,

instead of a trial information. We again note there is no constitutional right to be

charged by an indictment instead of a trial information. See Finnegan, 237 N.W.2d

at 460. We do not further discuss this issue.
                                          8


       C.     Hiatt alleges his pretrial release is a factor to be considered in

evaluating whether there was probable cause for his arrest. He also challenges

the sufficiency of the evidence to support his convictions. A jury found Hiatt guilty

of three counts of second-degree sex abuse and four counts of indecent contact

with a child, and his convictions were affirmed on appeal. Hiatt, 2013 WL 1749917,

at *6. By finding Hiatt guilty, the jury found the victim’s testimony to be credible.

See id. at *2 (“[T]he jury was free to believe the victim and disbelieve Hiatt.”).

Hiatt’s complaints on this issue do not undermine the validity of the jury’s verdict.

       D.     Hiatt asserts the court violated his constitutional rights, citing ex post

facto laws.   Ex post facto laws “impose punishment for an act that was not

punishable when committed or that increase the quantum of punishment provided

for the crime when it was committed.” State v. Stoen, 596 N.W.2d 504, 507 (Iowa

1999) (citation omitted). The statutes providing for second-degree sexual abuse

and indecent contact with a child were not amended between the time the offenses

took place and Hiatt’s criminal trial.     We conclude Hiatt was not improperly

punished by ex post facto laws. Hiatt has not shown he was improperly denied his

constitutional rights.

       IV.    Conclusion

       We affirm the district court’s decision denying Hiatt’s application for

postconviction relief. Hiatt has not shown he received ineffective assistance of

counsel or provided any other basis to support his request for postconviction relief.

       AFFIRMED.
