                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-0201
                                 Filed July 16, 2014

ALVIN WORKMAN,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,

Judge.



      Alvin Workman appeals the denial of his application for postconviction

relief. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Steven J. Japuntich,

Assistant Appellate Defender, for appellant.

      Alvin Workman, Rockwell City, pro se appellant.

      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney

General, John P. Sarcone, County Attorney, and Stephan Bayens, Assistant

County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., Bower, J., and Miller, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
                                          2



MILLER, S.J.

       Alvin Workman appeals the denial of his application for postconviction

relief (PCR). He contends his trial and appellate counsel rendered ineffective

assistance.   In a pro se brief, Workman raises the same issues but argues

additional facts. We review these claims de novo. See Everett v. State, 789

N.W.2d 151, 155 (Iowa 2010) (noting that although the denial of PCR is reviewed

for errors at law, we review an alleged denial of a constitutional right de novo).

       Workman was charged with and convicted of possession of a controlled

substance with the intent to deliver, failure to possess a tax stamp, and

possession of a controlled substance, following a March 8, 2004 search of his

residence. The first issue on appeal concerns the issuance of the warrant that

authorized that search. Workman alleges his attorneys were ineffective in failing

to contest what he characterizes as “misstatements of fact (implicating

prosecutorial misconduct) and stale, unverifiable information included in the

warrant application.”

       The 2004 application for a search warrant included the typewritten affidavit

of Urbandale Police Department Detective Don Simpson. It states that on March

8, 2004, the detective “received information from an anonymous concerned

citizen, who also wished to remain confidential.” The word “anonymous” was

lined out. A later reference to “the anonymous concerned citizen” similarly had

the word “anonymous” lined out.

       Workman’s trial counsel, Richard Bartolomei, filed a motion to suppress

the evidence seized from Workman’s residence, alleging the search warrant
                                       3



application contained “material falsehoods and omissions.” The motion alleged

that contrary to Detective Simpson’s representations, “the information was NOT

received from a concerned citizen who had identified themselves [sic] to law

enforcement or were known to law enforcement, but who wished to remain

confidential. The caller never identified themselves and was in fact, anonymous.”

The district court granted the motion to suppress. However, on discretionary

review, this court held the district court applied an incorrect legal standard,

reversed the grant of the motion to suppress, and remanded the case to the

district court.   See State v. Workman (Workman I), No. 05-0052, 2006 WL

228950, at *3 (Iowa Ct. App. Feb. 1, 2006). On remand, the district court denied

the motion to suppress after determining the caller should be categorized as an

informant, not a concerned citizen, but that the information provided by the

informant was credible.

       On May 12, 2006, it was learned that although Detective Simpson advised

the court issuing the warrant that the statements contained in the application

were his own, an assistant county attorney had reviewed the application and

crossed out the word “anonymous.” Workman’s new trial counsel, Jason Shaw,

moved to reopen the record on the motion to suppress based upon this newly

discovered evidence. The motion was denied.

       Paul Rosenberg represented Workman on direct appeal and argued the

district court erred in denying the motion to reopen the record. This court noted

that the district court had “found the information provided by the informant was

credible, based on the information provided by other sources and set forth in the
                                           4



application.”1 State v. Workman (Workman II), No. 06-1982, 2008 WL 4531409,

at *3 (Iowa Ct. App. Oct. 1, 2008). This court noted that the district court had

“determined there was probable cause for the search warrant based on the

information provided by the caller [who spoke to Detective Simpson], not based

on an aura of credibility given to the caller due to a designation as a concerned

citizen.” Id.

       Workman filed a PCR application on February 11, 2009, alleging in part

that his trial counsel were ineffective in failing to raise the issues of “false

information that was included in the warrant application” and “possible

prosecutorial misconduct” by the assistant county attorney, who lined out the

word “anonymous” in Detective Simpson’s affidavit. The PCR court determined

that the question of false information on the warrant application was raised and

fully litigated before the trial court. With regard to the question of prosecutorial

misconduct, the court found Workman’s attorneys “exercised reasonable

professional judgment and determined that raising a claim of prosecutorial

misconduct based on the facts alleged was completely baseless.” The court




1
    An attachment incorporated into the application recited that Workman had been
arrested for drug offenses in 1989, 1998, 2001, 2003, and December 2003. The
attachment also included information that in July 2003, two arrestees had told police of
recent drug possession and dealing by Workman; in November 2003, a confidential
informant had told police that Workman was then involved in the manufacture and sale
of methamphetamine, the informant had seen Workman manufacture methamphetamine
in the bathroom of his apartment, and the informant had seen a large quantity of
methamphetamine at Workman’s apartment; and in December 2003 and January 2004,
a police officer had monitored two telephone calls between another confidential
informant and Workman, in the first of which they discussed the confidential informant
purchasing a large quantity of methamphetamine from Workman, and in the second of
which Workman arranged to sell one pound of methamphetamine to the confidential
informant.
                                             5



determined “there is no reasonable probability that had the issue of prosecutorial

misconduct been raised, the outcome of the trial would have been different.”

       After reviewing the record, we agree Workman is unable to show he was

prejudiced by any failure of counsel. Following remand, the trial court treated the

anonymous caller as an informant; discussed at length not only the information

provided by the caller and the bases for the caller’s knowledge, but also the

corroborating information set forth in the application; and found the information

the informant provided was credible. On direct appeal, this court agreed that

Detective Simpson’s testimony regarding the assistant county attorney striking

the word “anonymous” from the warrant application “would not change the court’s

conclusions in this case because the court’s decision was not based on the

designation of the caller as a concerned citizen.”               Workman II, 2008 WL

4531409, at *3. Therefore, even if we were to find prosecutorial misconduct

occurred, Workman is unable to show the outcome would have been different. 2

       Workman also contends his counsel were ineffective in failing to challenge

the district court’s determination regarding the need for a restraint and for failing

to order him to wear his restraint beneath his clothing. This issue arose when

Workman threatened to assault his counsel during a deposition that occurred

shortly before trial.    Noting that Workman would become very agitated and

aggressive when something upset him, a judge ordered Workman to attend trial



2
  While we need not consider Workman’s argument regarding staleness of the other
information contained in the warrant application, we note that the information provided in
the warrant suggests an ongoing or continuous criminal act and therefore “the passage
of time is less problematic because it is more likely that these activities will continue for
some time into the future.” See State v. Gogg, 561 N.W.2d 360, 367 (Iowa 1997).
                                            6



in a restraint. A different judge presided over the trial. When that judge inquired

about the use of a restraint, attorney Shaw described what had led the judge to

order the use of a restraint, but informed the trial judge that he did not fear for his

safety.     Shaw stated his concern that a chain around Workman’s waist was

visible, but noted that Workman had been asked to place the chain under his

shirt and had refused. The court responded, that the decision to leave the chain

visible was “[h]is choice.”

          Our supreme court has outlined the law regarding the imposition of

physical restraints on a defendant during trial:

                  The decision to impose physical restraints upon a defendant
          during trial lies within the informed discretion of the district court
          and will not be disturbed on appeal absent a clear showing of
          abuse of discretion. Shackling a defendant may be justified despite
          the fact that some prejudice will occur. As a procedural matter, the
          district court, preferably before the trial begins, should place in the
          record in the presence of the defendant and counsel the reasons
          for shackling and give them an opportunity to make their objections
          known. The burden is on the State to show the necessity for
          physical restraints.

State v. Bartnick, 436 N.W.2d 647, 648-49 (Iowa 1988).

          Workman first alleged the district court failed to make an independent

determination regarding the necessity of the restraints, and trial, appellate, and

PCR counsel were ineffective in failing to raise the issue. Workman raised this

issue on direct appeal, arguing the court denied him a fair trial because he was

required to appear in shackles.         This court found the record insufficient to

address the issue because there is “no record of what, if any, restraints were

used at trial. Furthermore, we are unable to discern a specific ruling on this

issue.” Workman II, 2008 WL 4531409, at *4. In his amended PCR application,
                                         7



counsel raised the issue, arguing, “Shaw failed to make record on the physical

restraints Mr. Workman endured in the presence of the jury. By failing to do so,

Shaw failed an essential duty, and Mr. Workman was prejudiced as a result of

said failure.”

       In Workman II, this court preserved for a possible postconviction action a

pro se claim by Workman that counsel rendered ineffective assistance by not

raising the issue of the need for a restraint and the trial court not ordering him to

wear it beneath his clothing. Id. Workman’s application for postconviction relief

raised claims of ineffective assistance of trial and appellate counsel, including the

issue regarding a restraint.    The PCR court granted the State’s motion for

summary judgment on Workman’s claim regarding the use of a restraint.              It

denied summary judgment as to the other claims, and they proceeded to trial and

a final judgment denying the remaining claims.

       The PCR trial court’s grant of partial summary judgment disposed of only

one of Workman’s ineffective assistance claims, and was thus an interlocutory

ruling, not a final judgment for purposes of appeal. Suss v. Schammel, 375

N.W.2d 252, 254 (Iowa 1985); River Excursions, Inc. v. City of Davenport, 359

N.W.2d 475, 477 (Iowa 1984). As such, that ruling inheres in the PCR court’s

final judgment and is a proper subject for review on appeal from that judgment.

See Mason City Prod. Credit Ass’n v. VanDuzer, 376 N.W.2d 882, 887 (Iowa

1985) (“Appeal from the final decree will present for review all rulings inhering in

that decision.”); see also Iowa R. App. P. 6.103(3) (“Error in an interlocutory

order is not waived by . . . proceeding to trial.”). Workman does not assert that
                                        8



the district court in the PCR action erred in granting summary judgment on his

claim of ineffective assistance regarding the use of a restraint. Otherwise stated,

he makes no claim that the PCR trial court erred in finding there was no genuine

issue as to any material fact on that claim, or that the court erred in concluding

the State was entitled to judgment as a matter of law on it. See Iowa R. Civ. P.

1.981(3) (setting forth the standard for granting a motion for summary judgment).

Thus, no ineffective-assistance issue regarding the use of a restraint is properly

before us in this appeal. Furthermore, even if we were to consider the merits of

such a claim, given the overwhelming evidence of his guilt, Workman is unable to

demonstrate any prejudice by the use of a restraint or counsel not pursuing such

an issue.

      AFFIRMED.
