                       IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0245
                               Filed January 11, 2017


COREY RUDEN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Plymouth County, Edward A.

Jacobson, Judge.



       Appeal from the denial of postconviction relief.   AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED.




       Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux

City, for appellant.

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

General, for appellee State.




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

       Corey Ruden was convicted of possession of marijuana, third offense, and

sentenced to probation. This court affirmed his conviction on direct appeal. See

State v. Ruden, No. 11-0422, 2013 WL 1453068, at *3 (Iowa Ct. App. Apr. 10,

2013). Ruden subsequently filed an application for postconviction relief pursuant

to Iowa Code chapter 822 (2013). The district court denied the application for

postconviction relief, and Ruden timely filed this appeal.

       This case arises out of a search of Ruden’s residence in which marijuana

was discovered. In April 2010, Deputy U.S. Marshal Charles McCormick and

Plymouth County Sheriff’s Deputy Jeff TeBrink conducted a sex-offender-registry

check at Ruden’s residence.      McCormick knocked on Ruden’s door.       Ruden

opened the door, and McCormick informed Ruden of the nature of the visit.

McCormick detected the smell of burnt marijuana, which he testified was an

“immediately recognizable scent” based on his training and experience. When

McCormick asked whether Ruden had been smoking marijuana, Ruden denied it.

Ruden explained he had recently cleaned his tortoise tank and the smell was

mold and rotting food material. The officers testified they asked Ruden if they

could enter the home. Without waiting for an affirmative yes or no, they walked

into the home when Ruden stepped aside.           Ruden testified he allowed the

officers into the home to show them the tortoise tank. Ruden had two guests in

his home at the time of entry. Once the officers were inside the home, TeBrink

went to the living room and asked the guests if they had been smoking

marijuana. They denied they had. While in the living room, TeBrink noticed an

ashtray. TeBrink stated the ashtray contained marijuana residue and seeds or
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small amounts of a green leafy substance.         McCormick testified it contained

marijuana ashes and the end of a marijuana cigarette.           Ruden claimed the

ashtray did not contain marijuana and was used by guests to put out cigarettes.

Regardless, TeBrink began questioning Ruden about whether marijuana was in

the home. TeBrink asked to search the home. TeBrink told Ruden they could do

this “the hard way” and get a warrant or they could do this “the easy way” and

Ruden could consent. Ruden gave oral consent and led the officers to a cache

of marijuana. Ruden subsequently signed a consent-to-search form.

       In this postconviction action Ruden had the contents of the ashtray tested.

Two tests were performed on the ashtray. One was positive for the presence of

THC, and the other was negative. The officer conducting the tests explained the

results of the test were thus inconclusive. He did testify he could identify stems

and unknown green material in the ashtray. He testified cannabinoids degrade

over time, which could account for the fact the second test was not positive for

THC. Ruden claimed his trial counsel was ineffective “(1) in failing to have tested

the contents of the ashtray prior to the suppression hearing; (2) in failing to

present the results of such testing at the suppression hearing; (3) in failing to

present the actual ashtray and its contents, or at least the photographs of the

ashtray taken by law enforcement at the time of its seizure, at the suppression

hearing; and (4) in failing to present the testimony of . . . the other individuals

who were present at Ruden’s residence at the time of Ruden’s arrest.” The

district court denied Ruden’s application for postconviction relief.

       We review claims of ineffective assistance of counsel de novo. See State

v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). To establish a claim of ineffective
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assistance of counsel, an applicant is required to prove: “(1) his trial counsel

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

(citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).          There is a

strong presumption of counsel’s competence. See Strickland, 466 U.S. at 689.

“In evaluating the objective reasonableness of trial counsel’s conduct, we

examine ‘whether, in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance.’”

State v. Madsen, 813 N.W.2d 714, 724 (Iowa 2012) (citation omitted).

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

rise to the level of ineffective assistance of counsel.” Ledezma v. State, 626

N.W.2d 134, 143 (Iowa 2001). As to the second element, “[t]he ultimate inquiry

on prejudice is whether trial counsel’s allegedly deficient performance caused a

complete ‘breakdown in the adversary process’ such that the conviction is

unreliable.” Zaabel v. State, No. 15-0220, 2016 WL 4035236, at *2 (Iowa Ct.

App. July 27, 2016) (quoting Strickland, 466 U.S. at 687). Thus the applicant

“must ultimately show that his attorney’s performance fell outside a normal range

of competency and that the deficient performance so prejudiced him as to give

rise to the reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different.” Dunbar v. State, 515 N.W.2d 12, 15

(Iowa 1994). Failing to prove either element is fatal to the applicant’s claim. See

Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015) (“If we conclude a claimant

has failed to establish either of these elements, we need not address the

remaining element.”); State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (“A

defendant’s inability to prove either element is fatal.”).
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          Ruden failed to establish he suffered constitutional prejudice.    Ruden

contends if the contents of the ashtray had been tested, the negative test results

combined with his guests’ testimony—that they had not smoked marijuana—

would have undermined the credibility of the investigating officers and led to the

suppression of the marijuana evidence. This argument is speculative at best.

More important, the argument is predicated on the false assumption the test

result at the time of the suppression hearing would have been the same as the

test result at the time of the postconviction hearing. The testing officer explained

cannabinoids degrade over time thus potentially explaining the inconclusive

result.    Most important, Ruden’s argument is immaterial.      It does not matter

whether the ashtray in fact contained marijuana detritus. And it does not matter

whether Ruden’s guests denied they had been smoking marijuana.                 The

dispositive fact is Ruden invited the officers into his home and gave oral and

written consent to search, even directing officers to his cache of marijuana.

Consent to search is a recognized exception to the warrant requirement. See

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (“It is . . . well settled that

one of the specifically established exceptions to the requirements of both a

warrant and probable cause is a search that is conducted pursuant to consent.”);

State v. Baldon, 829 N.W.2d 785, 791 (Iowa 2013) (“One recognized exception

to the warrant requirement of our constitution is consent.”); State v. Reiner, 628

N.W.2d 460, 464–65 (Iowa 2001) (“One well-established exception to the warrant

requirement is a search conducted by consent.”).          Thus, the result of the

suppression hearing would not have been different. Ruden’s claim thus fails.

See Dempsey, 860 N.W.2d at 868.
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        Ruden contends the district court erred in assessing the costs of his court-

appointed,     postconviction-counsel    against   him   without    first   making   a

determination whether Ruden could reasonably afford to pay the costs. The

State contends Ruden failed to preserve error on the issue.                 Under the

circumstances, we disagree and will address the issue on the merits.

        Postconviction-relief proceedings are civil actions governed by Iowa Code

chapter 822. See Noear v. State, No. 13-1379, 2014 WL 3748276, at *1 (Iowa

Ct. App. July 30, 2014). Iowa Code section 815.9(6), which applies to chapter

822, states:

        If the person receiving legal assistance is acquitted in a criminal
        case or is a party in a case other than a criminal case, the court
        shall order the payment of all or a portion of the total costs and fees
        incurred for legal assistance, to the extent the person is reasonably
        able to pay, after an inquiry which includes notice and reasonable
        opportunity to be heard.

(emphasis added.); see also Iowa Code § 822.5 (“If the applicant is unable to pay

court costs and stenographic and printing expenses, these costs and expenses

shall be made available to the applicant in the trial court, and on review.”). The

language of the statute is clear: the district court is to make an inquiry, “which

includes notice and reasonable opportunity to be heard” prior to assessing costs

against an applicant in a postconviction proceeding. Iowa Code § 815.9(6). This

did not happen in this case. The State concedes the district court erred in failing

to make a determination as to Ruden’s ability to pay the costs prior to assessing

them.

        For the foregoing reasons, we affirm the district court’s order denying

Ruden’s application for postconviction relief. We vacate the district court’s order
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assessing the costs of court-appointed counsel against Ruden. We remand this

matter for a hearing regarding the assessment of costs.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
