                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-2001
                             Filed August 16, 2017


MICAH SHERIF MATTHEWS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Paul L. Macek,

Judge.



      Micah Matthews appeals from the district court’s denial of his application

for postconviction relief. AFFIRMED.




      Mark C. Meyer, Cedar Rapids, for appellant.

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

Attorney General, for appellee State.




      Considered by Mullins, P.J., and Bower and McDonald, JJ.
                                         2


MULLINS, Presiding Judge.

       Micah Matthews appeals from the district court’s denial of his application

for postconviction relief (PCR), asserting numerous claims of ineffective

assistance of trial, appellate, and PCR counsel.        We generally review PCR

proceedings for correction of errors at law. Nguyen v. State, 878 N.W.2d 744,

750 (Iowa 2016). However, when an applicant raises constitutional claims, such

as claims of ineffective assistance of counsel, we apply a de novo review. See

id.; Bonilla v. State, 791 N.W.2d 697, 699 (Iowa 2010).

       On February 20, 2008, the State charged Matthews by trial information

with first-degree kidnapping, a class “A” felony; second-degree kidnapping, a

class “B” felony; first-degree sexual abuse, a class “A” felony; and first-degree

burglary, a class “B” felony. Matthews waived his right to a jury trial, and trial to

the bench commenced on February 17, 2009.             The district court convicted

Matthews of first-degree kidnapping, second-degree kidnapping, and first-degree

burglary after finding the charge of first-degree sexual abuse was a lesser-

included offense of first-degree kidnapping and merging the two offenses. The

court sentenced Matthews to life in prison without the possibility of parole for the

crime of kidnapping in the first degree, plus two twenty-five-year terms of

incarceration for the crimes of kidnapping in the second degree and burglary in

the first degree, all to run consecutively. Matthews appealed, and we affirmed

his convictions and sentences. See generally State v. Matthews, No. 09-0743,

2010 WL 3894455 (Iowa Ct. App. Oct. 6, 2010).

       On February 17, 2011, Matthews filed a pro se application for PCR. The

court appointed Matthews counsel, followed by a succession of several
                                         3


appointed counsel.    Matthews subsequently amended his application several

times and submitted exhibits and a pro se pretrial memorandum. The district

court dismissed Matthews’s application on November 12, 2015.

       Matthews appeals, arguing his trial counsel rendered ineffective

assistance in failing to: (1) properly challenge the sufficiency of the evidence of

the specific intent and confinement or removal elements of the charge of first-

degree kidnapping, (2) investigate or consult with medical experts regarding the

State’s evidence showing serious injury, (3) object to hearsay statements made

to the sexual assault nurse examiner (SANE), (4) improperly agreeing to admit

the deposition testimony of the emergency room doctor and effectively waiving

his right to confront the witness at trial, (5) request a jury instruction on

kidnapping for ransom as an alternative theory for second-degree kidnapping, (6)

file a motion in arrest of judgment, (7) investigate his prior association with the

complaining witness, (8) investigate a possible intoxication defense, and (9)

impeach witnesses who claimed they saw Matthews in possession of a gun prior

to the assault. He further complains his appellate counsel provided ineffective

assistance in failing to raise the above issues and raise claims the trial court

abused its discretion and improperly weighed the evidence.          Additionally, he

claims the cumulative errors of his trial and appellate counsel warrant a new trial.

       Matthews admits his claim regarding the sufficiency of the evidence of

confinement or removal was not addressed in the PCR court’s order. Matthews

failed to file a motion to amend or enlarge the court’s findings pursuant to Iowa

Rule of Civil Procedure 1.904(2); thus, error has not been preserved on this

issue. See Meier v. Senecaut, 641 N.W.2d 532, 539 (Iowa 2002) (finding a rule
                                         4

1.904(2) motion is “necessary to preserve error ‘when the district court fails to

resolve an issue, claim, or other legal theory properly submitted for adjudication’”

(citation omitted)).

       Matthews also admits his claim that trial counsel provided ineffective

assistance by failing to object to the inadmissible hearsay testimony of the SANE

nurse who examined the complaining witness after the kidnapping and assault

was not raised before the PCR court.1 Thus, Matthews recognizes this issue has

not been preserved for our review and argues PCR counsel rendered ineffective

assistance in failing to raise the claim below.       Matthews also argues PCR

counsel rendered ineffective assistance in failing to obtain and consult a medical

expert with regard to his complaints surrounding the serious-injury element of the

charges of first-degree kidnapping and first-degree sexual abuse.

       “Ineffective-assistance-of-counsel    claims   are   an   exception   to   the

traditional error-preservation rules.” State v. Fountain, 786 N.W.2d 260, 263

(Iowa 2010).       To succeed on an ineffective-assistance-of-counsel claim,

Matthews must prove “by a preponderance of the evidence: ‘(1) his trial counsel

failed to perform an essential duty, and (2) this failure resulted in prejudice.’”

State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015) (quoting State v. Adams,

810 N.W.2d 365, 372 (Iowa 2012)); accord Strickland v. Washington, 466 U.S.

668, 687 (1984). Failure to prove either prong is fatal to the claim. See Everett

v. State, 789 N.W.2d 151, 159 (Iowa 2010). In examining Matthews’s claims, we



1
 Matthews framed this issue before the PCR court as one of trial counsel’s failure to
object to prosecutorial misconduct for presenting false evidence. The PCR court
addressed the issue as Matthews framed it to the court and denied the claim.
                                        5

presume counsel performed his or her duties competently. See Thorndike, 860

N.W.2d at 320.

      We conclude Matthews has failed to prove a reasonable probability that,

without any alleged errors of trial, appellate, or PCR counsel, “the result of the

proceeding[s] would have been different.” Strickland, 466 U.S. at 694. Thus, he

cannot show he was prejudiced by any alleged failure of counsel. See id.; see

also Everett, 789 N.W.2d at 159.

      Furthermore, the record clearly shows Matthews broke into a woman’s

home, held her at gun point, demanded money, and threatened to sexually

assault her. When the woman told Matthews she did not have cash at home, he

forced her to drive to a nearby bank.       The woman was unsuccessful in her

attempts to withdraw money, and Matthews ordered her to drive back to her

home. Once at home, the woman attempted to escape by running into her house

and locking the door. Matthews kicked the door in, grabbed her, and told her to

go to her bedroom. She refused, and Matthews hit her on the head with his gun.

The woman lost consciousness; when she regained consciousness, Matthews

was sexually assaulting her, and she passed out again. Before he left, Matthews

gagged the woman and bound her hands and feet. When she woke up again,

she freed herself and called the police. She was taken to the hospital where a

SANE nurse performed an examination and collected evidence later used to

develop a DNA profile of the perpetrator. The DNA profile obtained from the

sexual assault examination matched Matthews’s DNA profile. Further, a DNA

profile obtained from the woman’s bindings also matched Matthews’s profile.

Based on these facts, we find the record contains overwhelming evidence of
                                         6

Matthews’s guilt in this vicious attack. See Boose v. State, No. 13-1130, 2014

WL 7343218, at *3 (Iowa Ct. App. Dec. 24, 2014) (applying the “overwhelming

evidence” standard cited in State v. Maxwell, 743 N.W.2d 185, 197 (Iowa 2008),

to the applicant’s ineffective-assistance-of-trial-counsel claim in a PCR action).

       Accordingly, we affirm the district court’s denial of Matthews’s PCR

application.

       AFFIRMED.
