                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1465
                             Filed October 25, 2017


ANTHONY LAVEAL MOODY,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Lee (South) County, John M.

Wright, Judge.



      An applicant appeals the denial of postconviction relief. AFFIRMED.




      Eric D. Tindal of Nidey Erdahl Tindal & Fisher, PLC, Marengo, for

appellant.

      Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
                                          2


TABOR, Judge.

       Convicted of four drug crimes in two consolidated cases, Anthony Moody

appeals the denial of his application for postconviction relief. Moody first claims

his criminal trial attorney was ineffective by not resisting the State’s motion to

consolidate two pending prosecutions into a single trial.       He next claims his

direct-appeal and postconviction counsel delivered subpar representation by

failing to allege trial counsel was ineffective for not seeking a limiting instruction

at the consolidated trial. Because Moody fails to show the reasonable probability

of a different outcome had trial counsel lobbied for separate trials, we affirm the

denial of postconviction relief. Because the record is inadequate to assess his

second claim, we preserve it for any subsequent postconviction-relief action.

       I.     Prior Proceedings

       In June 2011, the State filed a trial information (FECR008010) charging

Moody with two counts of cocaine delivery, in violation of Iowa Code section

124.401(1)(c)(2) (2011), related to controlled drug buys with informant Angela

Bollin that occurred in January 2011.         Moody’s October 2011 trial on those

offenses ended in a mistrial due to a hung jury.

       In May 2012, the State charged Moody in a three-count trial information

(FECR008227) with delivery of cocaine, in violation of section 124.401(1)(c)(2),

related to a controlled buy with informant Trevelt Washington on January 5,

2012; money laundering, in violation of section 706B.2(1)(a), alleged to have

occurred on January 20, 2011; and possession of marijuana, in violation of

section 124.401(5), alleged to have occurred on May 2, 2012.
                                          3


       Moody’s new defense attorney, retained after the mistrial, filed a motion in

limine asking to exclude references to “his prior charges for possession and

delivery of a controlled substance and the proposed testimony of Angela Bollin

as it relates to alleged controlled buys not at issue in this matter.” In ruling on the

defense motion, the district court was satisfied the State had authenticated the

text messages between Moody and informants Bollin and Washington. The court

decided the messages would be admissible “subject to a showing of relevancy.”

       In December 2012, the State moved to consolidate the two cases for trial.

The motion asserted the court had entered an order in FECR008227 permitting

Bollin’s testimony on the January 2011 events as relevant to the money-

laundering count. The motion continued: “Because the evidence will be exactly

the same and include all charges contained in FECR8010, the State moves to

combine these charges for purposes of trial.” The defense filed a response,

stating: “In light of the court’s ruling on the motion in limine, the defendant

concedes judicial economy would be served by a joint trial on these matters.”

Moody’s January 2013 jury trial ended in guilty verdicts on all five charges. He

received a prison sentence not to exceed forty-five years.

       In Moody’s direct appeal, our court affirmed the four drug counts, but

reversed the money-laundering conviction. State v. Moody, No. 13-0576, 2014

WL 5861263, at *13 (Iowa Ct. App. Nov. 13, 2014) (deciding defense counsel

failed to argue proper interpretation of money-laundering statute in motion for

judgment of acquittal).

       In February 2015, Moody filed an application for postconviction relief

alleging several deficiencies in the performance of his second trial counsel. In
                                          4


April 2016, the district court held a postconviction hearing at which the parties

submitted the deposition testimony of Moody and trial counsel.               Counsel

described the uphill battle he faced in Moody’s defense:

              The State had compiled, I want to say hundreds of pages,
       might be thousands. It was a lot of data from his cell phone. It was
       text messages that had gone back and forth from a phone that was
       reported to belong to Mr. Moody. A lot of those text messages
       referenced drug-dealing activity, specifically with Ms. Bollin, who
       was somebody who had done controlled buys, I believe, in the first
       set of charges. . . . And of course the evidence was incredibly
       damning. I mean, it was a lot of evidence. There was definitely
       drug-dealing activity going on.

The underlying criminal trial record was accepted as a joint exhibit. In August

2016, the district court issued its order denying postconviction relief. On the

issue of consolidating the cases for trial, the district court ruled, “Moody offers no

proof how his cases would have resulted in a better outcome had [defense

counsel] resisted the motion to consolidate.” Moody appeals that ruling.

       II.    Scope and Standards of Review

       We review postconviction relief rulings for corrections of errors at law

unless they raise constitutional issues, in which case our review is de novo.

Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012). Here, Moody’s claims of

ineffective assistance of counsel call for de novo review. See Dempsey v. State,

860 N.W.2d 860, 868 (Iowa 2015) (noting such claims are grounded in the Sixth

Amendment to the United States Constitution).

       To succeed, Moody must establish: (1) his counsel failed to perform an

essential duty, and (2) that failure resulted in prejudice. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). “Reversal is warranted only where a

claimant makes a showing of both elements.” Dempsey, 860 N.W.2d at 868. If a
                                           5


claimant fails to establish one of the elements, we need not address the other.

Id. (emphasizing court’s option to decide prejudice prong without addressing

whether attorney performed deficiently).

       III.   Analysis of Ineffective-Assistance-of-Counsel Claims

       A. Concession to Case Consolidation

       In his evidentiary deposition, Moody’s criminal trial attorney testified he

was not happy with the district court’s decision on the defense motion in limine

filed before the second trial: “I thought it was the wrong ruling and I couldn’t

believe they were going to be able to get all that evidence in.”

       But once the court reached that threshold determination of admissibility,

counsel made the following assessment:

       [S]o with all of that evidence sitting there and being able to be used,
       essentially we were going to go through the exact same trial twice.
       So I had a conversation with Mr. Moody about that pending motion
       to consolidate, the fact that I didn’t know if the court would grant
       that or not, but that essentially meant that he was going to have two
       of the exact same trials and the State was going to be able to use
       the same kind of evidence and try to convict him twice. And we
       decided not to resist that and just do it in one shot.

       In this appeal, Moody contends his criminal trial counsel was wrong in

assuming the district court’s ruling that the text-message evidence was

admissible in the later-filed case (FECR008227) meant it would be admissible in

the case (FECR008010) that ended in the hung jury. Moody also asserts in his

postconviction appellate brief that direct-appeal counsel and postconviction-trial

counsel were ineffective “in failing to articulate the relevant arguments.”

       We conclude Moody has not met his burden to show he suffered

Strickland prejudice as a result of the performance of any of his three previous
                                         6


attorneys on the consolidation issue. Moody is unable to show that had his

criminal trial counsel resisted the State’s motion to consolidate, a reasonable

probability existed that (1) Moody would have had two separate trials,

(2) Moody’s text-message exchanges with Bollin post-dating the first cocaine

deliveries would have been excluded in the retrial of the original charges

(FECR008010), and (3) as a result he would not have been convicted on all four

drug charges.

       As an initial matter, the district court did not need Moody’s consent to

grant the State’s motion to consolidate the two cases for trial. Iowa courts apply

the same test for consolidating prosecutions initiated by separate trial

informations into one trial as they would for deciding if two or more indictable

offenses may be joined in a single trial information under Iowa Rule of Criminal

Procedure 2.6(1).    See State v. Lam, 391 N.W.2d 245, 249-50 (Iowa 1986)

(discussing joinder rule and its similarity to consolidation of separate charges for

trial in State v. Trudo, 253 N.W.2d 101, 104 (Iowa 1977)).

       Rule 2.6(1) provides:

       Two or more indictable public offenses which arise from the same
       transaction or occurrence or from two or more transactions or
       occurrences constituting parts of a common scheme or plan, when
       alleged and prosecuted contemporaneously, shall be alleged and
       prosecuted as separate counts in a single complaint, information or
       indictment, unless, for good cause shown, the trial court in its
       discretion determines otherwise.

The phrase “common scheme or plan” refers to a series of separate transactions

or occurrences which have “a single or continuing motive.” See State v. Elston,

735 N.W.2d 196, 198-99 (Iowa 2007). To detect a common scheme or plan,

courts look at “intent, modus operandi, and the temporal and geographic
                                           7

proximity of the crimes.” Id. (finding joinder proper where Elston was motivated

by sexual desire to victimize children and acts occurred in close geographic

proximity, though there was no temporal proximity and modus operandi was

dissimilar).

       In Moody’s cases, the continuing motive was to bring in cash by selling

cocaine. All the cocaine deliveries occurred in Keokuk, all were processed by

corresponding with customers via text message or phone call, and all were

completed by meeting in person to make the sale. While the crimes spanned

more than one year, the money-laundering count in the later-filed case

(FECR008227) allegedly occurred the same day as the deliveries in the first case

(FECR008010), tying together the time frames. Although our court ultimately

reversed the money-laundering count on direct appeal, that action did not change

the validity of the district court’s consolidation of the two cases for trial.1

Accordingly, resistance by Moody’s counsel would not have prevented

consolidation of the cases into a single trial.

       Further, Moody fails to show a reasonable probability existed that he

would not have been convicted of the deliveries alleged in the first case

(FECR008010) but for the consolidation. We are not convinced the hung jury in


1
  Moody’s attorney for this postconviction appeal asserts:
        Although counsel cannot articulate it, there is something inherently wrong
        with the procedural posture of this case in that [the money-laundering
        count] was used to justify the admission of all this ‘bad acts’ evidence, yet
        it was dismissed on the basis that the State failed to present sufficient
        evidence to support conviction.
It is not our place to articulate Moody’s argument for him. See State v. Piper, 663
N.W.2d 894, 913 (Iowa 2003) (declining to consider one-sentence appellate claim
presented without analysis), overruled on other grounds by State v. Hanes, 790 N.W.2d
545 (Iowa 2010).
                                         8


the first trial supports Moody’s assertion of prejudice.       The State presented

additional incriminating evidence at the second trial. Moody has not established

the text messages between Moody and Bollin postdating the deliveries, offered to

show Moody possessed cocaine and had the intent to sell it, would have been

inadmissible as other bad acts. See Iowa R. Evid. 5.404(b); see also State v.

Putman, 848 N.W.2d 1, 8-16 (Iowa 2014) (setting out test for admissibility).

Moody has not carried his burden to prove acquittal on the original charges was

reasonably probable had the matters been tried separately. Coming up short on

the prejudice prong, Moody’s postconviction claim concerning consolidation fails.

       B. Failure to Request Limiting Instruction

       We next turn to Moody’s argument that his direct-appeal counsel and

postconviction trial counsel were ineffective for not flagging criminal trial

counsel’s failure to request a cautionary instruction regarding the use of the text-

message evidence as it related to the later-filed trial information (FECR008227).

He complains the jury “was never informed of the limited nature of the evidence

presented against him in the form of [rule] 5.404 evidence.”

       The State acknowledges an applicant may raise a claim of ineffective

assistance of postconviction trial counsel on appeal from the denial of

postconviction relief. See Dunbar v. State, 515 N.W.2d 12, 14-15 (Iowa 1994).

The State also acknowledges we lack a sufficient record to explain why Moody’s

postconviction-trial counsel may have decided not to raise the issue concerning a

limiting instruction.   Given these acknowledgments, we opt to preserve the
                                             9

limiting-instruction claim for any further postconviction proceedings.2 See State

v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010); see also Fetters v. State, No. 03-

1088, 2004 WL 793729, at *3 (Iowa Ct. App. Apr. 14, 2004) (finding record

inadequate and preserving claims of ineffective assistance of postconviction-trial

counsel).

       AFFIRMED.

       Danilson, C.J., concurs; McDonald, J., concurs specially.




2
  The special concurrence misinterprets Iowa Code section 814.7. That provision,
enacted in 2004, describes “the procedure to bring a claim of ineffective assistance of
counsel” in a criminal case. See Hannan v. State, 732 N.W.2d 45, 51 (Iowa 2007)
(explaining section 814.7 “remedies the evil that occurs when litigants must raise
ineffective assistance of counsel claims without an adequate record”). Section 814.7
does not control claims of ineffective assistance of counsel in postconviction-relief
actions and does not limit the ability of appellate courts to reserve such claims for further
evidentiary hearings. See Dunbar, 515 N.W.2d at 15 (deciding, on appeal from denial of
postconviction relief, whether claim postconviction counsel was ineffective “may be
addressed in this appeal or preserved for further postconviction proceedings”); Schertz
v. State, 380 N.W.2d 404, 412-15 (Iowa 1985) (same).
                                        10


MCDONALD, Judge (concurs specially)

      I concur in the judgment, but I dissent from that portion of the majority

opinion preserving Moody’s claim of ineffective assistance of postconviction

counsel for another round of postconviction-relief proceedings.       There is no

statute authorizing preservation of such a claim for subsequent postconviction-

relief proceedings. Iowa Code section 814.7(3) authorizes the preservation of

ineffective-assistance-of-counsel claims only on direct appeal from a “criminal

proceeding.”   Iowa Code § 814.7(3) (2015) (“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.”). “[P]ostconviction relief

proceedings are not criminal proceedings, but rather are civil in nature and are

triable at law to the court.” Jones v. State, 479 N.W.2d 265, 269 (Iowa 1991)

(emphasis in original omitted). Because a postconviction-relief proceeding is a

civil proceeding rather than a “criminal proceeding,” section 814.7(3) is

inapplicable here. We thus have no authority to “preserve” a claim of ineffective

assistance of postconviction counsel. See Moore v. State, No. 15-1779, 2017

WL 2461427, at *13 (Iowa Ct. App. June 7, 2017); Cole v. State, No. 15-0344,

2016 WL 7395722, at *2 (Iowa Ct. App. Dec. 21, 2016). Moody may file another

application for postconviction relief and assert this or any other claim. However,

the timeliness and propriety of any such application, claim, or claims would be

governed by chapter 822.
