                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0565
                            Filed September 13, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RILEY AUGUSTUS MALLETT,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       Riley Augustus Mallett appeals from a verdict of guilty on a charge of first-

degree robbery. AFFIRMED IN PART AND REMANDED IN PART.



       Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

       Riley A. Mallett, Anamosa, appellant pro se.

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

Attorney General, for appellee.



       Considered by Vogel, P.J., Doyle, J., and Goodhue, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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GOODHUE, Senior Judge.

       Riley Augustus Mallett appeals from a verdict of guilty on a charge of first-

degree robbery.

       I.     Background Facts and Proceedings

       The first-degree-robbery charge arose out of a robbery of the Greenwood

Pharmacy in Waterloo on February 10, 2015. That night, two men entered the

premises; both had masks on, and one had a hand gun. One of the men wore

distinctive black puffy pants with white stars.

       The intruder with the unusual pants pointed a gun at pharmacist Wesley

Pilkington and handed him a note demanding “all the Xanax and Promethazine

[and] Codein[e] before I shoot this bitch up.” The intruder orally repeated the

demand of the note.       Pilkington did as ordered, and then the intruder took

random drugs off of the shelf. The two intruders fled through the back door into a

residential area.   A silent alarm had been tripped by one of the pharmacy

employees, and police arrived within minutes.

       Mallett was tracked through the snow and found hiding in a treehouse

clothed in shorts even though the weather was cold. A pair of black puffy pants

with white stars matching the unusual attire of one of the gun-wielding intruders

was found within fifteen feet of the treehouse. Pilkington was able to identify

Mallett as the intruder with a gun who demanded the drugs. When interviewed,

Mallett initially stated he had been jogging but later stated he was a lookout for

the robbery. Cody Plummer was also arrested in another yard and admitted he

had been in the store. In a post-arrest interview, Plummer accurately described

what had happened in the robbery. After taking statements from Mallett and
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Plummer and investigating further, it was determined that K’Von Henderson,

Dayton Nelson, and Myles Anderson were also involved in the robbery, by

assisting in the planning and hiding the loot afterward.

       Nelson testified on behalf of the State at trial. He testified he was with

Mallet, Plummer, Henderson, and Anderson a day before the robbery when

Mallett came up with the idea to rob the pharmacy and all agreed to participate.

The final plan was that Mallett and Plummer were to rob the pharmacy and

Nelson and Henderson were to be getaway drivers.

       They gathered on the day of the robbery, and Nelson described the

unique pants Mallett wore into the drug store. Anderson brought a handgun that

they called “Billy,” and Nelson saw Anderson hand the gun to either Mallett or

Plummer. Nelson observed the two emerging from the drug store and stopped

the vehicle he was driving. Mallett opened the trunk of the car, placed the gun

and duffle bag in the trunk, and signaled Nelson to leave. Nelson took the loot to

his residence, and in a subsequent search of Nelson’s residence, medication

was found and identified as drugs taken from the pharmacy.              The trial

commenced on November 24, 2015, but a mistrial was declared, and the trial

was reset and began on February 9, 2016. A verdict of guilty on the count of

first-degree robbery was returned as to Mallet, Plummer, and Henderson.

       Mallett has submitted multiple claims on appeal that will be addressed as

(1) claims where error has been preserved, (2) a claim of an illegal sentence, and

(3) claims of ineffective assistance of counsel.
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       II.     Claims Where Error has Been Preserved

       Mallett asserts the trial court did not use a weight-of-the-evidence

standard in considering the motion for a new trial. The weight-of-the-evidence

standard is to be applied when considering a motion for a new trial as opposed to

a sufficiency-of-the-evidence standard. State v. Ellis, 578 N.W.2d 657, 658-59

(Iowa 1998). The weight-of-the-evidence standard differs from the sufficiency-of-

the-evidence standard in that it is not merely a review of the testimony most

favorable to the State as in a judgment for acquittal, but all of the evidence is

considered, including the credibility of the witnesses. Id. The trial court denied

the motion for a new trial by referring back to the motion for acquittal and by

stating that “[m]ost of those, if not all of those, are matters that have been

previously ruled on” and that it would continue to abide by its previous rulings.

The State does not contest Mallett’s claim the weight-of-the-evidence standard

was not applied to the motion. This matter should be and is hereby remanded for

the trial court to apply the weight-of-the-evidence standard and determine if a

new trial should be granted. However, this does not dispose of this appeal.

Other claims could result in a dismissal, a change of the sentence, or other

possible relief.

       III.    Claim of an Illegal Sentence

       A. Preservation of Error

       A claim of an illegal sentence can be raised at any time.         State v.

Bruegger, 773 N.W.2d 862, 872 (Iowa 2009).
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       B. Scope of Review

       Sentences alleged to be unconstitutional are reviewed de novo, and

Mallett has raised a constitutional objection to the sentence, claiming it

constituted cruel and unusual punishment under the constitutions of the United

States and Iowa. See State v. Lyle, 854 N.W.2d 378, 382 (Iowa 2014).

       C. Discussion

       In his argument, Mallett primarily relies on the analysis and language used

in State v. Sweet, 879 N.W.2d 811 (Iowa 2016). Mallett specifically asserts that

the mandatory sentence for first-degree robbery is cruel and unusual punishment

as to him because he apparently was only twenty-years-old at the time of the

crime. All mandatory minimum sentences of imprisonment for youthful offenders

are unconstitutional under the cruel-and-unusual-punishment prohibitions of our

federal and state constitutions. See Lyle, 854 N.W.2d at 402. However, in so

ruling, the court accepted the legislature’s bright-line rule of eighteen as the

definition of a youthful offender. Id. at 403.

       Mallett also points out that second-degree robbery has been divided into

second and third-degree robbery by the legislature, but that has no bearing on

his conviction for first-degree robbery. Finally, he points out there are statistics

that indicate robbery charges and sentences are imposed in Iowa in a racially-

disparate manner, but he fails to suggest how that assertion relates to the cruel-

and-unusual-punishment constitutional prohibitions.
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      IV.    Ineffective Assistance of Counsel

      A. Error Preservation

      An exception to the traditional error preservation rules exist when the

claim is ineffective assistance of counsel. State v. Fountain, 786 N.W.2d 260,

262-63 (Iowa 2010).

      B. Scope of Review

      Ineffective assistance of counsel presents a constitutional issue, and when

a constitutional issue is involved, our review is de novo. Lemasters v. State, 821

N.W.2d 856, 862 (Iowa 2012).

      C. Merits of Ineffective Assistance of Counsel Generally

      To prevail on a claim of ineffective assistance of counsel, the claimant

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

an essential duty and (2) prejudice resulted. Ledezma v. State, 626 N.W.2d 134,

142 (Iowa 2001).      A claim of ineffective assistance must overcome the

presumption that counsel is competent. Tyler v. State, 352 N.W.2d 683, 685

(Iowa 1984). An accused is not entitled to perfect representation but only the

level of representation that is within the normal range of competency. State v.

Artzer, 609 N.W.2d 526, 531 (Iowa 2000). For relief to be granted, there must be

a determination that but for ineffective assistance, there is a reasonable

probability the result would have been different. Ledezma, 626 N.W.2d at 145.

Counsel is not ineffective for failing to make a meritless objection.    State v.

Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). When the record is adequate to

make a ruling and ineffective-assistance-of-counsel claims are raised on a direct

appeal, consideration is permitted but otherwise the issue is to be reserved for
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postconviction relief. Artzer, 609 N.W.2d at 531. There is an adequate record to

address each of the ineffective assistance of counsel claims that Mallett asserts.

       1. Speedy Trial Issues

       A defendant must be tried within ninety days after an indictment has been

filed unless there has been a waiver or good cause is shown. Iowa R. Crim. P.

2.33(2)(b). Mallett signed a written waiver of his ninety-day speedy-trial right on

April 17, 2015. He filed a request for reinstatement on June 27, 2015. This was

followed by a second waiver of the ninety-day speedy-trial right on June 29,

2015. The first jury was sworn in on March 24, 2015, and the second on the

February 9, 2016. The trial information had been filed February 20, 2015. When

the speedy-trial right is reasserted and a waiver withdrawn, a defendant must be

tried within ninety days of the withdrawal of the waiver. State v. Hamilton, 309

N.W.2d 471, 475 (Iowa 1981).

       The ninety-day speedy-trial limitation was in effect from February 20 to

April 17, and from June 27 to June 29. Otherwise, a waiver was in effect. A

motion to dismiss was filed based on the ninety-day rule, and it was denied.

Mallett’s counsel and Mallett both had signed the waiver documents. The ninety-

day rule was set out in the waiver, and Mallett acknowledged in the waivers that

he signed them voluntarily, willingly, and after a full discussion with his attorney.

Mallett is not appealing the trial court’s dismissal of his motion, but as we

understand his pro se brief, he now contends it was counsel’s fault that he

waived his right to a speedy trial.             We hold that Mallett’s written

acknowledgement and the waivers as set out above created effective and

enforceable waivers. Again, we believe Mallett cannot overcome the specific
                                          8


personal acknowledgment contained in the waivers and blame his decision on

counsel.

       2. Instruction Issues

       Mallett asserts that counsel was ineffective in three respects regarding the

use of the term “joint criminal conduct” and all three assertions of ineffective

assistance culminate in one instruction and counsel’s failure to object to it. The

instruction referred to is Jury Instruction 20, which stated:

             When two or more persons act together and knowingly
       commit a crime, each is responsible for the other’s acts during the
       commission of the crime or escape from the scene.              The
       defendant’s guilt is the same as the other persons’ unless the acts
       could not reasonably be expected to be done in aiding the
       commission of the crime.

       The joint-criminal-conduct statute can include unplanned criminal acts that

can be reasonably foreseen from the planned activity. State v. Jefferson, 574

N.W.2d 268, 277 (Iowa 1997). Aiding and abetting is limited to responsibility for

the crime that the accused knowingly aided the principal in committing. State v.

Satern, 516 N.W.2d 839, 843 (Iowa 1994). No separate offense was charged in

this case. The jury was also instructed on the concept of aiding and abetting.

Both Mallett and the State agree that under the facts of this case, the aiding-and-

-abetting and the joint-criminal-conduct instructions were virtually the same.

Where there is no opportunity for a jury to have found anything other than a

defendant’s own conduct as a principal or aider and abettor, it is not error to give

a joint-criminal-conduct instruction. State v. Smith, 739 N.W.2d 289, 294 (Iowa

2007). It is not enough to show the instruction exists for application in a different

factual situation, but only if using it in the existing factual situation misstates a
                                            9

defendant’s culpability in some material way. State v. Jackson, 587 N.W.2d 764,

765 (Iowa 1998).     The joint-criminal-conduct instruction in this case did not

mistake Mallett’s culpability in any way.

       Furthermore, we consider that the joint-criminal-conduct instruction did not

misstate the law or contradict the aiding-and-abetting instruction, and if

erroneous, it is merely superfluous without resulting prejudice.     See State v.

Maxwell, 743 N.W.2d 185, 197 (Iowa 2008); State v. Tejeda, 677 N.W.2d 744,

754 (Iowa 2004).     There was no prejudice shown as required by a claim of

ineffective assistance of counsel.

       3. Severance Claim

       Mallett filed a motion for severance along with a motion to continue on

November 16th. The motion to sever was based on the need to have substitute

counsel. The scheduled trial was to be a joint trial on November 24. Mallett filed

the motion to sever with the motion to continue so his counsel could be prepared.

The motion was overruled, and the trial commenced. However, a mistrial was

declared, and the matter was tried on a later date as set out above. Accordingly,

his motion to continue was moot, and the basis for the continuance no longer

existed. Counsel had approximately three months to prepare, which was an

adequate amount of time.

       Mallett has added a new basis for severance from those originally

considered. As such, it can only be considered under the ineffective-assistance-

of-counsel rubric. See State v. Goodson, 503 N.W.2d 395, 399 (Iowa 1993).

Mallett’s only claim that severance should have been granted was his co-

defendant Plummer’s claim that Mallett was the one with the gun, the robbery
                                        10


was done for drugs for Mallett, and his attempt to cast the blame for the robbery

on Mallett. These accusations were only a co-defendant’s counsel’s assertion.

Mallett’s guilt was not derived from evidence submitted by the other defendants

in this case. Instead, it was simply an assertion of irreconcilable or mutually-

exclusive defenses, and therefore, it did not support the need for severance.

See State v. Brown, 397 N.W.2d 689, 696-97 (Iowa 1986).               To obtain a

severance, an accused must show more than an attempt to exonerate himself by

incriminating the other party being tried. See State v. Clark, 464 N.W.2d 861,

864 (Iowa 1991).

       No objection was made on the basis of prosecutorial misconduct or,

rather, conduct Mallett has now labeled as prosecutorial misconduct. Mallett

must rely on counsel’s failure to object. It is the duty of the prosecutor to assure

the defendant of a fair trial, and his primary interest should be that justice is

done. State v. Graves, 668 N.W.2d 860, 870 (Iowa 2003). Mallett objects that

the prosecutor did not use a line up or a picture grouping to test Pilkington’s

identification of him as the robber with the gun and, furthermore, the prosecutor

did not have corroborating evidence to support Nelson’s testimony. See Iowa R.

Crim. P. 2.21(3).    Mallett contends, in effect, the prosecutor knew he was

innocent but prosecuted him anyway. There is no requirement that a prosecutor

must confirm a positive identification of a witness with a lineup, and the evidence

supporting Nelson’s testimony as an accomplice is overwhelming. To the extent

Mallett contends Nelson’s credibility was an issue, credibility is an issue for the

jury to determine. See Gail v. Clark, 410 N.W.2d 662, 671 (Iowa 1982).
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      The prosecutor introduced evidence that all three of the defendants

belong to a musical group that called themselves FlyBoy Entertainment. Mallett’s

counsel objected on the basis the prosecutor was attempting to imply the

defendants were a part of a criminal gang. The objection was overruled, but an

order restricted the evidence to establishing the group to which the parties

belonged was a musical group, and it was only introduced to establish the

defendants had known each other. To use evidence objected to but admitted

over the objection by the court does not constitute prosecutorial misconduct.

      In his pro se brief, Mallett has made general objections to evidence of

prior bad acts and prejudicial statements, but he has not indicated where in the

record the objectionable information appears. These issues are deemed waived.

See Iowa R. App. P. 6.903(2)(g)(3). To the extent Mallett may have alluded to

other possible defenses, they are deemed waived for the same reason.

      V.     Conclusion

      This matter is remanded to the district court for consideration of the motion

for new trial by the weight-of-the-evidence standard. Otherwise, it is affirmed.

      AFFIRMED IN PART AND REMANDED IN PART.
