                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0571
                               Filed July 24, 2019


RICKY LEE PUTMAN,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Fayette County, Richard D. Stochl,

Judge.



      Ricky Putman appeals the denial of his application for postconviction relief.

AFFIRMED.



      Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee State.



      Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.
                                         2


GREER, Judge.

       A postconviction-relief applicant argues his trial counsel was ineffective for

failing to adequately advise him of his right to testify in his own defense and for

failing to keep him informed of the defense strategy, thereby depriving him of the

ability to participate in his defense.    The district court determined that the

applicant’s trial counsel did not fail to perform an essential duty and denied the

applicant’s ineffectiveness claims. On our review, we affirm.

       I. Background Facts and Proceedings.

       The Iowa Supreme Court set forth the relevant facts of the underlying

criminal case in State v. Putman, 848 N.W.2d 1, 3–7 (Iowa 2014). Briefly, Putman

was accused of sexually abusing two-year-old L.R. As the supreme court noted,

pediatric physicians “concluded that L.R. had suffered vaginal penetration injuries,”

which required surgery under general anesthesia and “numerous stitches to repair

the damage.” Putman, 848 N.W.2d at 4. A jury convicted Putman of sexual abuse

in the first degree. He was sentenced to life in prison. On direct appeal of his

conviction, Putman challenged the sufficiency of the evidence and argued that the

trial court improperly admitted evidence of child pornography on his computer. The

Iowa Supreme Court affirmed his conviction. See id. at 8–16.

       In September 2014, Putman filed an application for postconviction relief. He

originally raised the same claims as he had on direct appeal. However, after

amending his application, Putman now raises two ineffective-assistance-of-

counsel claims. After a hearing on his amended postconviction application, the

district court denied Putman’s application in its entirety. Putman appeals.
                                            3


       II. Standard of Review.

       “We generally review the denial of an application for postconviction relief for

correction of errors at law.” Sauser v. State, 928 N.W.2d 816, 818 (Iowa 2019).

However, “[w]e review ineffective-assistance-of-counsel claims de novo.” State v.

Brown, ___ N.W.2d ___, ___, 2019 WL 2710809, at *2 (Iowa 2019).

       III. Analysis.

       Putman raises his postconviction claims under the Sixth Amendment of the

United States Constitution.       The Sixth Amendment provides, “In all criminal

prosecutions, the accused shall enjoy the right . . . to have the Assistance of

Counsel for [their] defence.” U.S. Const. amend. VI. “In order to prevail on an

ineffective-assistance-of-counsel claim, a defendant must demonstrate both that

‘(1) . . . trial counsel failed to perform an essential duty, and (2) this failure resulted

in prejudice.’” Sauser, 928 N.W.2d at 818 (quoting State v. Straw, 709 N.W.2d

128, 133 (Iowa 2006)); see also Strickland v. Washington, 466 U.S. 668, 687–88

(1984). To establish prejudice, Putman must “show the results of the proceeding

would have been different but for counsel’s error.” Sauser, 928 N.W.2d at 819.

       Putman argues his trial counsel was ineffective for failing to adequately

advise him of his right to testify in his own defense and for failing to adequately

advise him of the defense theory, thereby preventing him from participating in his

own defense. We will address each claim in turn.

       A.    Advising Putman Regarding Whether to Testify in His Own

Defense. A criminal defendant has a constitutional right to testify in his own

defense. See Rock v. Arkansas, 483 U.S. 44, 51 (1987). The defendant may

knowingly, intelligently, and voluntarily waive this right. Ledzema v. State, 626
                                         4


N.W.2d 134, 146 (Iowa 2001). The defendant’s counsel must provide advice to

enable the defendant to make an informed choice about testifying at trial, but the

final decision regarding whether to testify is the defendant’s alone. Id. The Iowa

Supreme Court has described counsel’s duty as follows:

              Counsel has a duty to advise the defendant about the
       consequences of testifying so that an informed decision can be
       made. The decision is often extremely difficult to make, but “can be
       the single most important factor in a criminal case.” Generally, the
       advice provided by counsel is a matter of trial strategy and will not
       support a claim of ineffective assistance absent exceptional
       circumstances. However, when a defendant follows the misinformed
       advice of counsel concerning the consequences of testifying,
       ineffective assistance of counsel may occur.

Id. at 146–47 (citations omitted).

       Putman elected not to testify during his criminal trial. Outside the presence

of the jury, his defense counsel asked the court to make a record regarding

Putman’s decision not to testify:

              MR. HAWBAKER: I have discussed whether or not Mr.
       Putman will testify with Mr. Putman. It is his choice not to testify.
              THE COURT: Anything more need to be said?
              MR. HAWBAKER: I would just ask that the court inquire of that
       of Mr. Putman.
              THE COURT: Mr. Putman, do you mind answering that
       question?
              MR. PUTMAN: Yeah, I don’t want to testify
              THE COURT: Okay. Noted. The jury will not receive any
       other comment on that other than the uniform instruction on the
       Defendant’s election not to testify previously given to counsel.

       Putman now argues his counsel was ineffective for failing to properly advise

him regarding whether to testify in his own defense. Putman alleges that his trial

counsel told him that testifying was a bad idea and would make him look guilty.

Putman claims that had he been able to testify in his own defense, he could have
                                            5


explained his side of the story and could have confirmed that the child pornography

on his computer was not his.

       At the postconviction hearing, Putman’s trial counsel could not specifically

recall the conversation he had with Putman about testifying. However, he did

specifically remember being unsure of exactly what Putman would say in

testimony. His trial counsel was concerned that potential testimony from Putman—

where he denied ownership of the extensive child pornography found on his

computer—would highlight “something that was extremely detrimental to us. And

putting him on the stand and risking opening that door which to me [was] not a

good idea.” His trial counsel further testified that his normal course of conduct is

to tell his clients that whether to testify is “a game-time decision” based on how the

trial has progressed. He tells his clients that it is their right to testify but he would

also have a conversation about the risks and benefits.             If at the end of this

conversation he and his client disagree about whether to testify, he would make a

record with the court regarding the client’s decision. If his client elects not to testify,

he makes sure that there is a jury instruction informing the jury they cannot hold

that decision against his client.

       The district court found that the advice not to testify was sound trial strategy

because “[t]here appeared a serious risk that his testimony could cause more

damage to his case than good.” We agree. The inconsistencies between his

statements to the police and his statements when Putman testified at the

postconviction hearing support trial counsel’s prediction that he would not testify

well. Putman has failed to show his trial counsel failed to perform an essential duty

by advising him not to testify at his criminal trial.
                                          6


       B. Advising Putman of the Theory of the Defense. With regard to

ineffectiveness claims based on trial strategy, “ineffective assistance is more likely

to be established when the alleged actions or inactions of counsel are attributed to

a lack of diligence as opposed to the exercise of judgment.”             Id. at 142.

“Miscalculated trial strategies and mere mistakes in judgment normally do not rise

to the level of ineffective assistance of counsel.” Id. at 143.

       If the ineffectiveness claim is based on tactical or strategic decisions, we

must examine the decision “in light of all the circumstances to ascertain whether

the actions were a product of tactics or inattention to the responsibilities of an

attorney guaranteed a defendant under the Sixth Amendment.” Id. However,

“[w]hile strategic decisions made after ‘thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable,’ strategic decisions

made after a ‘less than complete investigation’ must be based on reasonable

professional judgments which support the particular level of investigation

conducted.”    Id. (quoting Strickland, 466 U.S. at 690–91).       Courts must not

“assume the role of Monday morning quarterback in condemning counsel’s

judgment in choosing between what are frequently equally hazardous options.”

State v. Newman, 326 N.W.2d 788, 795 (Iowa 1982). We are to examine, not if

defense counsel’s actions were successful, but whether they were “justifiable.”

Pettes v. State, 418 N.W.2d 53, 56–57 (Iowa 1988).

       The district court acknowledged there was a lack of evidence presented on

this issue during the postconviction hearing. Putman again relies on the fact that

he did not testify in his own defense as the basis for this claim of ineffectiveness.
                                          7


He also cites his general lack of involvement with planning trial strategy and

developing defense theories.

       The defense strategy at trial was to limit the admission of child pornography

evidence and to point the finger at L.R.’s father as the rapist. Before trial, Putman’s

trial counsel fought against the admission of pornography evidence, and the State

was significantly limited in the amount of child pornography evidence presented.

At trial, the jury saw a video of Putman’s interview with the sheriff’s deputy. In this

video, Putman denies any involvement in the sexual assault. The State also

presented the testimony of a technician from the Iowa Division of Criminal

Investigation, who testified that she did not find any of Putman’s DNA at the home.

She also testified that she could not develop a DNA profile for a single hair found

in the diaper that L.R.’s father had put on L.R. that morning, which may have been

a pubic hair. Putman presented the testimony of Dr. Terry Melton, a mitochondrial

DNA expert, who also analyzed the hair found on the diaper. Dr. Melton’s results

excluded Putman as the source of the hair, but included all of L.R.’s maternal

relatives, her father, and seven percent of the world’s population.

       Putman does not allege that he would have used a different strategy at trial.

Instead, he claims he should have testified in his own defense to explain his actions

that night and deny that the child pornography was his. As we previously noted,

trial counsel was not ineffective in advising Putman not to testify. The district court

concluded, “There is nothing in this record to suggest an alternate theory that

should have been advanced.” We agree, and conclude Putman cannot show that

his trial counsel failed to adequately involve him in trial strategy or allow him to

participate in his defense.
                                   8


       IV. Disposition.

       We affirm the district court’s denial of Putman’s application for

postconviction relief.

       AFFIRMED.
