                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1004
                               Filed April 27, 2016


WAYNE M. POWELL,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Henry W. Latham II,

Judge.




      Wayne M. Powell appeals the district court’s denial of his request for

postconviction relief following his 2013 conviction for theft in the second degree.

AFFIRMED.




      Thomas J. O’Flaherty of O’Flaherty Law Firm, Bettendorf, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee State.




      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

         In September 2012, Wayne Powell was found not guilty of second-degree

burglary and guilty of second-degree theft following a jury trial. Powell appealed

his conviction, challenging the sufficiency of the evidence and alleging ineffective

assistance of trial counsel. This court affirmed his conviction finding substantial

evidence supported the jury’s finding of guilt on the theft charge and preserved

Powell’s ineffective-assistance claim. See State v. Powell, No. 12-1918, 2013

WL 5486662, at *1-2 (Iowa Ct. App. Oct. 2, 2013).1 Powell filed an application

for postconviction relief (PCR), which the PCR court denied in June 2015. In his

appeal of the PCR court’s ruling, Powell contends his trial counsel was ineffective

for failing to object to the alternative theory of theft the State included in its jury

instruction but had not included in the trial information.2

         In order to prove an ineffective-assistance-of-counsel claim, an appellant

must show by a preponderance of the evidence that counsel (1) failed to perform

an essential duty and (2) prejudice resulted. Ennenga v. State, 812 N.W.2d 696,

701 (Iowa 2012). We can resolve ineffective-assistance-of-counsel claims under

either prong. State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015). We review

ineffective-assistance claims de novo. State v. Finney, 834 N.W.2d 46, 49 (Iowa

2013).


1
  The facts underlying the charges brought against Powell are set forth in this court’s
prior opinion and are thus not restated herein. See Powell, 2013 WL 5486662, at *1.
2
  Before the PCR court, Powell also argued his trial counsel was ineffective for failing to
preserve error by inadequately addressing the essential elements of theft in a motion for
judgment of acquittal and by failing to argue lack of jurisdiction based on the State’s
failure to present sufficient evidence that Powell ever had possession of the property
while in Iowa. While reference is made to these alternative claims, Powell does not
argue them in his briefing, and thus, we do not consider them. See Iowa R. App.
P. 6.903(2)(g).
                                           3


       In the trial information, Powell was charged with theft by, in relevant part,

“tak[ing] possession and control of the property of another.”3 At trial, the State

offered—and the court adopted—a jury instruction providing a second theory of

theft, that Powell “exercised control over the [property of another] knowing or

having reason to know it was stolen.”4 Powell’s trial counsel did not object to the

State’s inclusion of this alternative theory, which Powell contends constitutes

ineffective assistance of counsel.

       When denying Powell’s application, the PCR court reasoned,

       [t]he fact is if an objection were to have been made by trial counsel,
       the State could have easily made a motion to amend the Trial
       Information to provide [the alternative theory], which would not have
       been prejudicial to the Applicant. The charge would have remained
       the same, it would have just been an alternative theory which could
       have been argued and presented through evidence at trial.

       Under the Iowa Rules of Criminal Procedure, the State may request and

the court may “either before or during the trial, order the indictment amended so

as to correct errors or omissions in matters of form or substance. Amendment is

not allowed if substantial rights of the defendant are prejudiced by the

amendment, or if a wholly new and different offense is charged.” Iowa R. Crim.

P. 2.4(8)(a). The term indictment includes the trial information. Iowa R. Crim.

P. 2.5(5).

       “[T]he phrase ‘during the trial’ means the period of time in which the trier of

fact hears evidence and makes a decision based on that evidence.” State v.
3
  Powell was charged with violating Iowa Code section 714.1(1) (2011), which provides a
person has committed theft where that individual “[t]akes possession or control of the
property of another, or property in the possession of another, with the intent to deprive
the other thereof.”
4
  Iowa Code section 714.1(4) provides a person has committed theft where that
individual “[e]xercises control over stolen property, knowing such property to have been
stolen, or having reasonable cause to believe that such property has been stolen.”
                                          4

Brothern, 832 N.W.2d 187, 192 (Iowa 2013) (quoting State v. Bruce, 795 N.W.2d

1, 5 (Iowa 2011)). Powell does not dispute this element. Here, if an objection

had been raised and the State sought to amend, the amendment would have

occurred “before or during trial.” Id. at 193 (finding “amendment after the close of

evidence but before the case went to the jury in the main case” fell within the

“before or during trial” parameters).

         Likewise, the amendment would not have presented a “wholly new and

different offense” but simply “an alternative means of committing the same

offense,” which courts have repeatedly found permissible. See, e.g., State v.

Schertz, 330 N.W.2d 1, 2 (Iowa 1983) (“Here, the amendment to allege first-

degree kidnapping by means of torture did not charge a new offense; first-degree

kidnapping had already been charged on the basis the defendants had intended

to inflict serious injury.”); State v. Williams, 328 N.W.2d 504, 506 n.3 (Iowa 1983)

(noting the alternative theory of theft by exercising control was not a wholly new

and different offense to the charge of theft by taking); State v. Williams, 305

N.W.2d 428, 431 (Iowa 1981); State v. Sharpe, 304 N.W.2d 220, 223 (Iowa

1981).

         Finally, amendment is only allowed where it will not prejudice the

“substantial rights of the defendant.”        Iowa R. Crim. P. 2.4(8)(a); see also

Brothern, 832 N.W.2d at 193. Powell contends such an amendment would have

prejudiced his substantial rights—and the jury instruction did result in prejudice—

because the inclusion of the exercising-control alternative “was a sure way to

lose half of the case” and constituted “an invitation to convict.”
                                             5


       The Iowa Supreme Court has held “[a]n amendment prejudices the

substantial rights of the defendant if it creates such surprise that the defendant

would have to change trial strategy to meet the charge in the amended

information.” State v. Maghee, 573 N.W.2d 1, 6 (Iowa 1997). Here, Powell does

not argue the amendment would have constituted surprise, impacted the strategy

of his defense, or affected his decision whether or not to accept a plea. See

Brothern, 832 N.W.2d at 193-94; see also Stephen v. State, No. 07-0126, 2008

WL 2038421, at *3 (Iowa Ct. App. May 14, 2008) (“[The defendant] has failed to

show how he was prejudiced by his counsel’s failure to object to the amendment

on the grounds urged. He makes no claim of surprise nor does he argue he was

required to change his theory of defense.”).

       To the contrary, at the PCR hearing, trial counsel indicated she

strategically did not object to the inclusion of the alternative basis, explaining she

believed Powell’s best defense was to challenge the burglary charge, even if it

meant conceding the theft charge.5 See Moyer v. State, No. 06-1454, 2007 WL

2963982, at *3 (Iowa Ct. App. Oct. 12, 2007) (noting no prejudice resulted from

the amendment where the defendant’s “trial attorney testified that the [added]


5
  As such, this case is distinguishable from the supreme court’s holding in Williams, 328
N.W.2d 504. In Williams, the district court allowed the State to amend its trial
information to include the theory of theft by exercising control when only theft by taking
had been contained in the trial information. Id. at 504-05. Prior to the amendment, the
defendant had presented an alibi defense that accounted for his whereabouts at the time
of the alleged burglary, which also served to negate his involvement in the theft. Id. at
505. The defendant, along with certain defense witnesses, also testified to the
alternative way the defendant had obtained the stolen property. Id. On appeal, the court
concluded allowing the amendment prejudiced the substantial rights of the defendant,
noting “[c]learly, defendant did not have to testify and probably would not have testified if
he had gone to trial knowing that he also would be charged with committing theft by
exercising control over stolen property.” Id. at 506. While the defendant’s defense was
clearly prejudiced in Williams, Powell has made no such showing here.
                                           6


charge was not a significant change in the State’s theory, given the information in

the original minutes of testimony”). We review “tactical or strategic decisions of

counsel . . . in light of all the circumstances to ascertain whether the actions were

a product of tactics or inattention to the responsibilities of an attorney.” State v.

Brubaker, 805 N.W.2d 164, 171 (Iowa 2011) (citation omitted). “‘We begin with

the presumption that the attorney performed competently’ and ‘avoid second-

guessing and hindsight.’” Id. (citation omitted).

       Trial counsel testified at the PCR trial, “I was hoping for a split verdict,

because I knew the evidence of him having the stolen property was so strong, so

it permitted the jury to choose B [the exercising control theory], and I didn’t think

that was an issue. I thought that was a way to win half of the case.” Thus, trial

counsel’s strategy was to provide the jury an alternative theory of theft in an effort

to avoid a burglary conviction. We cannot find the trial strategy employed by

Powell’s counsel constitutes ineffective assistance of counsel. See id. at 174

(noting “[m]iscalculated trial strategies and mere mistakes in judgment normally

do not rise to the level of ineffective assistance of counsel” (citation omitted)).

       Had Powell’s trial counsel objected, the State would have moved for an

amendment of the trial information, thereby presenting this alternative theory to

the jury. Powell’s trial counsel cannot be found incompetent for failing to pursue

a meritless issue. See Brothern, 832 N.W.2d at 192. Moreover, trial counsel’s

failure to object was an intentional aspect of the trial strategy, to present to the

jury an alternative charge thereby mitigating the chances of Powell’s conviction

for burglary. Further, as amendment was allowable, no prejudice resulted. See

Ambrose, 861 N.W.2d at 557 (“To establish prejudice in the context of an
                                        7


ineffective-assistance-of-counsel claim, a defendant must show a reasonable

probability that the result of the trial would have been different.”). Accordingly,

we affirm the district court.

       AFFIRMED.
