                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1043
                             Filed October 28, 2015


MARQUISE JIMMY JOHNSON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, David F.

Staudt, Judge.



      Marquise Jimmy Johnson appeals from the district court’s denial of his

application for postconviction relief. AFFIRMED.




      Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

      Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, Linda Fangman, County Attorney, and Kimberly A. Griffith, Assistant

County Attorney, for appellee State.




      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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VAITHESWARAN, Presiding Judge.

      A jury found Marquise Johnson guilty of assault causing serious injury in

connection with the stabbing of Marcus Harding.            This court affirmed his

conviction and sentence and preserved his ineffective-assistance-of counsel

claims for postconviction relief.    State v. Johnson, No. 12-1425, 2013 WL

3458151, at *2-3 (Iowa Ct. App. July 10, 2013).

      Johnson filed a postconviction-relief application raising several ineffective-

assistance-of-counsel claims. The district court denied the claims following an

evidentiary hearing. Johnson appealed.

      Johnson challenges his original trial attorney’s failure “to timely file notices

of self-defense or defense of others.”       He also challenges his second trial

attorney’s failure to argue good cause for an untimely filing of a self-defense

notice and his failure to insist on complete corroborating testimony from a certain

witness.

      To succeed on his ineffective-assistance-of-counsel claims, Johnson was

required to show his attorneys breached essential duties and prejudice resulted.

Strickland v. Washington, 466 U.S. 668, 687 (1984). The prejudice component

requires a showing of a reasonable probability of a different outcome. State v.

Maxwell, 743 N.W.2d 185, 196 (Iowa 2008).

      The law on self-defense is clear. A defendant intending to rely on the

defense is obligated to file a written notice of such intention “within the time for

filing pretrial motions.” Iowa R. Crim. P. 2.11(11)(c). The time limit is “no later

than 40 days after arraignment.” Iowa R. Crim. P. 2.11(4). Failure to abide by

the deadline will preclude the defendant from offering evidence on the issue
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“without leave of court for good cause shown.” Iowa R. Crim. P. 2.11(11)(d).

However, the right of the defendant to present evidence on the defense is not

limited by the rule. Id.

       Our de novo review of the record reveals the following facts. Johnson’s

first attorney testified he was forced to withdraw as counsel due to a conflict of

interest within his office. Before he withdrew, Johnson gave him no reason to

believe the stabbing was an act of self-defense. To the contrary, Johnson denied

he stabbed the other man. According to the attorney, Johnson told him he “did

not stab the alleged victim, that the alleged victim would testify . . . Mr. Johnson

did not stab him.”

       Nothing in Johnson’s statements to the first attorney would have placed

the attorney on notice that he would need to file a self-defense notice.

Accordingly, we conclude his first attorney breached no essential duty in failing to

file a notice of self-defense and this ineffective-assistance-of-counsel claim fails.

See State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996) (“In assessing claims of

ineffective assistance of counsel, a defendant’s conduct is examined as well as

that of his attorney.”).

       We turn to the merits of Johnson’s ineffective-assistance-of-counsel claim

against his second trial attorney, bypassing the error preservation concern raised

by the State. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999). This attorney

was appointed shortly before trial, in the wake of the first attorney’s withdrawal.

Following the appointment, Johnson changed course and asserted he did indeed

stab Harding, but acted in self-defense. In light of this disclosure, Johnson’s
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second attorney filed a belated notice of self-defense. He did not argue good

cause for the late filing or seek a postponement of the trial.

       The sudden appointment of new counsel may constitute good cause for a

late filing of a notice of defense. See State v. Jordan, 779 N.W.2d 751, 755

(Iowa 2010). Accordingly, Johnson’s second attorney could have argued his late

appointment amounted to good cause for his belated notice of self-defense and

warranted full consideration of the defense. However, the attorney was placed

on the horns of a dilemma.       He testified Johnson did not wish to waive the

speedy trial deadline; “he wanted to keep the trial date that was scheduled.” The

attorney’s “fear was if” he argued good cause, he “would have been told by the

court that [his] remedy [was] probably a continuance and [his] client did not want

a continuance.” Counsel chose to abide by Johnson’s wishes.

       We recognize counsel could have waived Johnson’s statutory right to a

speedy trial without Johnson’s express consent.         See State v. LeFlore, 308

N.W.2d 39, 41 (Iowa 1981); see also Paulson v. State, No. 12-1119, 2013 WL

2146462, at *2 (Iowa Ct. App. May 15, 2013) (declining to find counsel ineffective

for waiving speedy trial right and moving for a continuance). But, had he done

so, we are convinced there would have been no reasonable probability of a

different outcome. At best, a good cause finding for late filing of the self-defense

notice together with a continuance of trial would have garnered Johnson the

ability to present corroborating testimony for his self-defense theory. The district

court permitted such testimony, albeit in truncated form.

       A witness at the scene, Jalissa Simmons, was allowed to impugn the

testimony of her sister Jaricka, which implicated Johnson in the stabbing. Jalissa
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categorically stated her sister did not see what happened. Although the district

court disallowed additional testimony from Jalissa about Johnson’s actions in

defense of himself and others, her limited testimony reaffirmed Johnson’s

testimony that Jaricka “didn’t see anything.” The jury was left to either believe

Jaricka or believe Jalissa and Johnson.

       The result of trial—a finding of guilt on the lesser-included offense of

assault causing serious injury rather than willful injury causing serious injury—

reveals that the jury essentially believed Jalissa and Johnson even without

additional testimony from Jalissa concerning Johnson’s efforts to wrest the knife

from Harding. This result is precisely what Johnson sought. In a pro se closing

statement to the jury, he stated:

       I can’t say that I was justified for doing what I did to Mr. Harding
       that night, but I feel that I had to protect my girl and me. Because
       he did enter the room with that knife. . . . I don’t want to hurt
       anybody. But I will do anything to protect my girl, which I do love.
       And I feel that I did assault Mr. Harding, but I did not cause bodily
       injury to have intentions to hurt anybody because that wasn’t my
       intention to hurt Mr. Harding. He is a friend of mine.

In the face of this record, we conclude Johnson failed to establish Strickland

prejudice and his ineffective-assistance-of-counsel claim against his second trial

attorney also fails.

       We affirm the district court’s denial of Johnson’s postconviction relief

application.

       AFFIRMED.
