                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0190
                            Filed December 21, 2016


JONATHON H. RAI,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Dubuque County, Thomas A.

Bitter, Judge.



       Applicant appeals from the district court order denying his application for

postconviction relief. AFFIRMED.




       Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

       Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.




       Considered by Danilson, C.J., and Doyle and McDonald, JJ.
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MCDONALD, Judge.

       This case comes before the court on Jonathan Rai’s appeal from the

denial of his application for postconviction relief filed pursuant to Iowa Code

chapter 822 (2011).

                                          I.

       The record reflects the following. Following a jury trial, Rai was convicted

of two counts of sexual abuse in the second degree. He was sentenced to an

indeterminate term of incarceration not to exceed twenty-five years with a

seventy percent minimum on each count, said sentences to be served

consecutively. He was required to submit a DNA sample, have no contact with

the victims, and register with the sex offender registry. The court also imposed a

special sentence of lifetime parole.

       Rai filed a direct appeal, in which he alleged ineffective assistance of

counsel. See State v. Rai, No. 09-1207, 2010 WL 2925851, at *1 (Iowa Ct. App.

July 28, 2010). Rai raised two contentions. First, his counsel failed to object to

the prosecutor eliciting testimony Rai brought his attorney with him during a pre-

arrest interview with police. See id. at *6. Second, his counsel failed to object

the prosecutor’s statements during closing argument that the jury needed to act

as a “voice” for the victims.       Id.   This court found both acts constituted

prosecutorial misconduct but no constitutional prejudice resulted therefrom. This

court affirmed Rai’s convictions and sentences. See id. at *10.

       In 2012, Rai filed this application for postconviction relief. Following trial,

the district court denied the application. Rai timely filed this appeal.
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                                        II.

        As relevant to this appeal, the record reflects the following. In December

2007, Rai confessed to family members he had sexually abused his

stepdaughter and stepnephew—one age five, and one age six or seven. The

police already were investigating the matter, and it appeared criminal charges

were impending. Rai hired counsel in January 2008. Early in the course of the

attorney-client relationship, Rai sought to meet with Lieutenant Jon Digman of

the Dubuque Police Department. Rai wanted to meet Digman in an effort to

“clear up the situation” and to give Digman the names of two other potential

suspects. Counsel strongly advised against the meeting. Rai argues this is

untrue.      Regardless, upon Rai’s insistence in holding the meeting, Rai and

counsel met with Digman. The interview went poorly from the outset. Counsel

testified Rai answered Digman’s first question about the children with, “I didn’t

molest them.” The interview concluded after approximately ninety minutes.

        In April 2008 and December 2008, Rai was charged in two separate cases

with second-degree sexual abuse of a child. The two cases were consolidated

for trial.    As trial approached, counsel persuaded Rai to commence plea

negotiations with the State. Counsel knew Rai was reluctant to admit guilt, but

counsel informed Rai asking for a plea offer would not be held against him at trial

so it was a no-lose proposition. In response to Rai’s counsel’s initiative, the

State offered to reduce the charges to lascivious acts with a child, a class D

felony, punishable by a term of incarceration not to exceed five years with no

mandatory minimum. In contrast, the sex-abuse charges were class B felonies

punishable by a term of incarceration not to exceed twenty-five years with a
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mandatory minimum sentence and special sentence. As set forth above, Rai did

not take the plea bargain.

                                         III.

       Rai contends his trial counsel was ineffective in several respects.

Specifically, Rai claims his counsel failed to advise him regarding his plea

options, failed to investigate the case properly, failed to challenge jurors with past

knowledge or experience with sexual abuse, failed to object to testimony Rai

“lawyered up” for his interview with Digman, failed to object to the testimony of

the children as incompetent, failed to object to the testimony of a forensic

interviewer, failed to object to the “presentation of highly prejudicial evidence,”

and failed to allow Rai to testify.

       We decline to review many of the claims. First, the issue of whether

counsel failed to attempt to strike jurors for cause was not decided by the district

court. “[I]ssues must normally be both raised and decided by the district court

before we will decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537

(Iowa 2002). Error is thus not preserved. Second, counsel’s failure to object to

the “lawyered up” testimony was the subject of Rai’s first appeal. See Rai, 2010

WL 2925851, at *8. Rai cannot relitigate the issue here. See Holmes v. State,

775 N.W.2d 733, 735 (Iowa Ct. App. 2009). Third, the district court did not rule

on the issue of the children’s testimony. The issue is not preserved for our

review. See Meier, 641 N.W.2d at 537. Fourth, the district court did not rule on

the prejudicial testimony—regarding Rai’s past sexual encounters and possible

connections to a drug ring—Rai believes counsel should have objected to. It too

is not preserved. See id.
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         For the remaining claims, our standard of review is de novo. State v.

Gaskins, 866 N.W.2d 1, 5 (Iowa 2015). “To prevail on a claim of ineffective

assistance of counsel, the claimant must show counsel failed to perform an

essential duty and prejudice resulted.” State v. Ary, 877 N.W.2d 686, 705 (Iowa

2016). Failure to prove either element is fatal to the claim. See State v. Polly,

657 N.W.2d 462, 465 (Iowa 2003). We begin with a strong presumption counsel

acted competently. See State v. Fountain, 786 N.W.2d 260, 266 (Iowa 2010).

         The first claim preserved for our review is counsel was ineffective in failing

to advise Rai properly regarding his plea options. Rai argues had he been aware

of the difference in penal consequences between the charges as filed and the

reduced charges, he would have accepted the State’s plea offer. See Dempsey

v. State, 860 N.W.2d 860, 869 (Iowa 2015) (“[T]o demonstrate prejudice in the

plea-bargaining process ‘a claimant must show the outcome of the plea process

would have been different with competent advice.’” (citation omitted)). The claim

fails.   Rai failed to establish his counsel breached a duty.       Counsel credibly

testified he provided the correct advice regarding the sentencing consequences

for the offenses. Rai also failed to establish prejudice. During the PCR trial, Rai

never testified he would have accepted the plea offer had he been properly

advised.     He testified only that he would have considered the offer. This is

insufficient to establish prejudice in this context. Further, Rai’s counsel credibly

testified Rai refused to accept the plea offer. According to counsel, Rai was

adamant he would not plead guilty and admit he had done something to the

children, was adamant he did not commit the offenses, and was confident he

would be acquitted.
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       Rai’s next contention is counsel failed to investigate the case properly.

Specifically, Rai contends counsel should have investigated previous abuse

allegations by the children against another and investigated another possible

culprit. Rai has not shown counsel’s performance to be deficient. In any event,

Rai has not proved prejudice. To prove prejudice, Rai must show “a reasonable

probability that, but for counsel’s unprofessional errors, the results of the

proceeding would have been different.” State v. Begey, 672 N.W.2d 747, 749

(Iowa 2003). Here, Rai makes only conclusory allegations of prejudice. Further,

the evidence against him was strong.

       The children themselves testified in court to the abuse. Recordings
       of their earlier interviews were also admitted into evidence. [Rai’s
       sister-in-law] testified to her own firsthand observations of Rai and
       H.B. In addition, [Rai’s wife] Michelle testified to what she had seen
       between Rai and M.B. Her testimony was very harmful to Rai since
       she previously was Rai’s strongest defender. Various witnesses
       testified to Rai’s incriminating statements on New Year’s Day 2008,
       including (most damagingly) Rai’s own mother. She said, “He told
       me that he had molested [H.B.] and [M.B.], but that came out
       wrong.” Also harmful to Rai’s defense was M.B.’s unprompted
       recollection that Rai had used “blue stuff,” apparently a lubricant
       used by Rai and Michelle for anal sex and known only to them.

Rai, 2010 WL 2925851, at *10.        There is not a reasonable probability of a

different result.

       Rai claims his counsel was ineffective in failing to object to the testimony

of a forensic interviewer, Kirsten Marnin, on the ground Marnin was unqualified.

The district court has discretion to determine the admissibility of expert

testimony. State v. Buller, 517 N.W.2d 711, 713 (Iowa 1994). A witness may

qualify as an expert by “knowledge, skill, experience, training or education.” Iowa

R. Evid. 5.702. At trial, Marnin testified to her qualifications, which included a
                                          7


bachelor’s degree in psychology, a master’s degree in social work, an internship

at which she observed forensic interviews, and several trainings. At the time of

trial, she had professionally interviewed 367 children.        Based on Marnin’s

qualifications, any objection to her testimony would have been overruled.

Counsel was not ineffective “for failing to pursue a meritless issue.” State v.

Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).

         Finally, Rai contends counsel should have let him testify.     The record

establishes counsel advised Rai not to testify and Rai took that advice. Not

calling the defendant as a witness is typically a reasonable tactical decision we

will not second-guess. See Polly, 657 N.W.2d at 468. So it is here.

         In sum, Rai has not proved any claim of ineffective assistance of counsel.

                                         IV.

         Rai argues the State withheld evidence in violation of Brady v. Maryland,

373 U.S. 83, 87 (1963). Specifically, the State withheld information regarding a

romantic relationship between Rai’s ex-wife and a peson named McClanahan,

another individual accused of similar crimes. This argument was not decided by

the district court and therefore is not preserved for our review. See Meier, 641

N.W.2d at 537. Moreover, it is unclear how this is evidence is material to the

issue of his guilt. See State v. Tangie, 616 N.W.2d 564, 571 (Iowa 2000). And

Rai testified counsel knew of the relationship during trial. Such knowledge is

imputed to Rai and would defeat his claim that the State withheld the evidence.

See Gable v. State, No. 11-1906, 2013 WL 104838, at *3 (Iowa Ct. App. Jan. 9,

2013).
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                                 V.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.
