                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1672
                             Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TRENTON JOHN ATTERBERG,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee (South) County, John M.

Wright, Judge.



      Defendant appeals his conviction for burglary in the first degree.

AFFIRMED.




      Matthew M. Boles and Adam C. Witosky, L.L.P., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.




      Considered by Doyle, P.J., Bower, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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BOWER, Judge.

       Defendant Trenton Atterberg appeals his conviction for burglary in the first

degree. We find Atterberg has not met his burden of proof to show he received

ineffective assistance of counsel in the pretrial proceedings, during his criminal

trial, or in counsel’s decision not to have the jury selection process recorded. Nor

has Atterberg shown he was denied a fair trial due to cumulative error. We affirm

Atterberg’s conviction.

       I.     Background Facts & Proceedings

       On April 3, 2015, at about 12:50 a.m., Blake Jorgenson was in his vehicle

in the drive-through lane at McDonald’s in Keokuk, with his girlfriend, Andrea

McVay, and a friend, Kelsey Newlan.          Atterberg and his girlfriend, Lindsay

Arrowood, drove up behind Jorgenson’s vehicle. Behind Atterberg in the drive-

through lane was a third vehicle, driven by Frederick Scott.         Jorgenson and

Atterberg had previously been friends, but then had a falling out.

       Atterberg got out of his vehicle and walked up to Jorgenson’s vehicle,

which had the driver’s side window open. Atterberg reached into the vehicle and

punched Jorgenson several times, causing a knot on the side of his head, a

bloody nose, and a fat lip. Scott got out of his vehicle and pulled Atterberg away

from Jorgenson.      A police officer was driving by, observed there was a

confrontation, and stopped to investigate.      The incident was recorded by a

McDonald’s security camera.

       Atterberg was charged with burglary in the first degree and possession of

marijuana. About a week before trial, the prosecutor offered a plea agreement

that would have required Atterberg to plead guilty to assault causing bodily injury
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and serve sixty days in the county jail and, in exchange, the State would dismiss

the possession charge. Defense counsel discussed the plea offer with Atterberg

and encouraged him to accept the offer, telling him, “It was a mixed bag. I mean,

this was a tough case because of the video.” Atterberg did not accept the plea

offer within the time permitted by the prosecutor. After the time had passed, he

offered to plead guilty but only serve ten days in jail. The prosecutor did not

accept Atterberg’s offer, stating it was too late. The State dismissed the charge

of possession of marijuana.

       The case proceeded to a jury trial.         Atterberg presented a defense

claiming (1) Jorgenson’s vehicle was not an occupied structure, (2) even if the

vehicle was an occupied structure, there was no entry, and (3) even if the jury

found Atterberg entered an occupied structure, he was guilty of a lesser offense

than first-degree burglary. In opening arguments defense counsel stated there

had been an assault but argued Atterberg’s conduct did not constitute a burglary.

Arrowood testified that while she and Atterberg were behind Jorgenson’s vehicle

in the drive-through lane she heard shouting coming from Jorgenson’s vehicle

and told Atterberg the occupants were yelling at them, but she could not hear

what they were saying, and this caused Atterberg to get out of the vehicle. The

jury found Atterberg guilty of first-degree burglary.

       Atterberg obtained new counsel and filed a motion for new trial, claiming

he received ineffective assistance of counsel. A hearing was held on the motion,

and defense counsel testified. The district court denied the motion for new trial,

finding Atterberg had not shown he received ineffective assistance from defense
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counsel.        Atterberg was sentenced to twenty-five years in prison.     He now

appeals.

         II.      Standard of Review

         We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) the attorney failed to perform

an essential duty and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A defendant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

         III.     Ineffective Assistance

         A.       Atterberg claims he received ineffective assistance prior to his

criminal trial because defense counsel failed to (1) adequately investigate the

case, (2) adequately explain the plea offer to Atterberg, and (3) request a

continuance to give Atterberg more time to think about the plea offer. He states

defense counsel should have done more to encourage him to accept the plea

offer.

         “If it is more efficient to dispose of an ineffective assistance claim by

looking first to the question of prejudice, we will do so.” State v. Hildebrant, 405

N.W.2d 839, 841 (Iowa 1987).           “Prejudice is generally found only if ‘but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015) (citations omitted).

In order to show prejudice, a defendant must show a reasonable probability of a
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different result, sufficient to undermine confidence in the outcome of the case.

State v. Cromer, 765 N.W.2d 1, 11 (Iowa 2009).

      With the benefit of hindsight, Atterberg may now wish he had accepted the

plea offer extended by the State. At the hearing on the motion for new trial,

however, he did not present any evidence to show he rejected the State’s offer

because defense counsel did not adequately explain the case against him or the

State’s plea offer, or because he did not have enough time to consider the plea

offer. Defense counsel testified he told Atterberg it was a “tough case” due to the

video and Atterberg made the decision to reject the plea offer. We conclude

Atterberg has not shown the decision to reject the plea offer was due to

ineffective assistance of counsel.

      B.     Atterberg claims he received ineffective assistance during the

criminal trial because defense counsel failed to present a defense to the

elements of burglary. He states defense counsel attempted to dispute elements

clearly shown by the evidence—Jorgenson’s vehicle was an occupied structure

and Jorgenson received a bodily injury—while conceding Atterberg committed an

assault.   Atterberg also claims defense counsel mishandled the cross-

examination of Jorgenson by eliciting testimony about the reason Atterberg and

Jorgenson were no longer friends. Jorgenson testified he gave Atterberg $200

for the purchase of drugs and Atterberg did not provide him with anything.

      We determine Atterberg has not shown he was prejudiced by defense

counsel’s performance. As he notes in his brief, the evidence of his guilt was

overwhelming. In addition to the eyewitness testimony of Jorgenson, McVay,

Newlan, and Scott, the videotape from the McDonald’s security camera showed
                                         6


Atterberg, unprovoked, reached into Jorgenson’s vehicle and struck Jorgenson

several times. Even if counsel breached an essential duty, Atterberg cannot

show he was prejudiced because the evidence of his guilt was overwhelming.

See State v. Parker, 747 N.W.2d 196, 211 (Iowa 2008) (finding even though

counsel failed to object to certain evidence, defendant was not prejudiced due to

the overwhelming evidence of his guilt).       Atterberg has not shown, but for

defense counsel’s alleged errors, the result of the proceeding would have been

different.

       C.     Atterberg claims he received ineffective assistance because

defense counsel did not request to have jury selection recorded. The prosecutor,

defense counsel, and defendant signed a Waiver of Reporting of Certain Portions

of the Record, which waived reporting for the proceedings for impaneling a jury.

Atterberg does not make any specific claims about anything that occurred during

the jury selection process but states the decision to waive recording of jury

selection constituted ineffective assistance of counsel.

       “When complaining about the adequacy of an attorney’s representation, it

is not enough to simply claim that counsel should have done a better job.”

Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). “The applicant must state the

specific ways in which counsel’s performance was inadequate and identify how

competent representation probably would have changed the outcome.” Id. Here,

Atterberg does not allege any specific error which occurred during the jury

selection process. We conclude he has not presented a basis for a claim of

ineffective assistance of counsel.
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      D.     Finally, Atterberg claims cumulative error denied him a fair trial and

due process. In some instances, the cumulative effect of trial court errors may

deny a defendant the right to a fair trial. See State v. Droste, 232 N.W.2d 483,

491 (Iowa 1975). “Under Iowa law, we should look to the cumulative effect of

counsel’s errors to determine whether the defendant satisfied the prejudice prong

of the Strickland test.” State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012) (referring

to Strickland v. Washington, 466 U.S. 688, 691–92 (1984)).          Looking at the

cumulative effect of the prejudice arising from all of the claims raised by

Atterberg, we determine he has not shown he was denied his right to a fair trial.

      We affirm Atterberg’s conviction for first-degree burglary.

      AFFIRMED.
