                   IN THE COURT OF APPEALS OF IOWA

                                   No. 12-1789
                               Filed May 29, 2014


PHILLIP CLARK,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris, Judge.



      Phillip Clark appeals from the district court’s denial, in part, of his

application for postconviction relief. AFFIRMED.




      Steven J. Drahozal of Drahozal Law Office, P.C., Dubuque, for appellant.

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

General, Thomas J. Ferguson, County Attorney, and Kim Griffith, Assistant

County Attorney, for appellee State.




      Considered by Vogel, P.J., and Doyle and Mullins, JJ.
                                            2


DOYLE, J.

       Phillip Clark appeals from the district court’s denial, in part,1 of his

application for postconviction relief from his 2010 convictions of first-degree

burglary, carrying weapons, and two counts of assault while participating in a

felony. We affirm.

I.     Background Facts and Proceedings

       Phillip Clark was arrested following an incident that occurred at the

apartment of his ex-girlfriend in the early morning hours of June 9, 2010. This

court’s ruling on Clark’s direct appeal contains a factual background regarding

the incident, which we reiterate in part:

                Phillip Clark lived in an apartment in Cedar Falls with his
       girlfriend, Jaclynne Chizewsky. Although he was not listed on the
       lease, Clark stayed at the apartment most nights before the pair
       ended their relationship. The break-up occurred between June 7
       and early June 8, 2010, at which point Clark moved out. During the
       late hours of June 8 and early morning of June 9, Chizewsky was
       “hanging out” in her apartment with two friends, Natasha Butler and
       Lucas Vandenberg.          While the three were in the bedroom,
       Chizewsky heard Clark’s truck pull into the parking lot and saw him
       running toward the apartment. She rushed to lock, chain, and
       deadbolt the apartment door before Clark could enter. Then
       Chizewsky and Clark engaged in a “yelling match” through the
       door.
                Despite Chizewsky’s pleas for Clark to “go away,” he kicked
       in the door. Clark started to strangle Chizewsky, and held a gun to
       her head. Butler entered the living room when she heard the door
       kicked in, but Vandenberg remained in the bedroom. During his
       attack on Chizewsky, Clark noticed Vandenberg’s sandals in the
       entryway, and asked, “Whose are those?” Clark then moved to the
       bedroom, “racked” his gun, and pointed it at Vandenberg.
       Chizewsky jumped onto Clark’s back, as Vandenberg joined in the
       fray. The ensuing three-way wrestling match spilled out into the


1
  The district court granted Clark’s application with respect to his request to merge his
two convictions of assault while participating in a felony into his conviction for first-
degree burglary but denied Clark’s remaining claims.
                                           3


         hallway and living room. Eventually Clark was able to return to his
         feet and leave the apartment.
                A police investigation revealed Clark’s father owned a .40
         caliber handgun, which was missing that night.

State v. Clark, No. 10-1767, 2011 WL 6076540, at *1 (Iowa Ct. App. Dec. 7,

2011).

         Clark was charged with first-degree burglary, carrying weapons, and two

counts of assault while participating in a felony. On the second day of trial,

outside the presence of the jury, the prosecutor stated that he anticipated Clark

would testify and he was “putting the court on notice that [the State had]

recovered three—excuse me, four relevant case files” regarding Clark in which

Clark gave his address as 495 Progress.2 The prosecutor explained,

                We don’t intend to get into anything of those other than to
         show that the defendant purported to the court . . . that he resided
         at 495 Progress . . . . I don’t think it’s impeachment. I don’t intend
         to get into the nature of the offense, anything of that nature
         whatsoever other than to suggest in those particular court
         documents the defendant has provided an address, a mailing
         address and specifically noting it as his residence in those three
         cases of Progress. And I guess more importantly not Melrose.

The burglary was alleged to have taken place at Jaclynne Chizewsky’s

apartment at 2328 Melrose.

         The next day, Clark exercised his right to testify. On cross-examination,

Clark confirmed he had been living with Chizewsky since 2008. The prosecutor

then questioned Clark about documents containing the address he provided for

himself as 495 Progress—which Clark answered in the affirmative. Despite his

representation the day before to the court and defense counsel that he did not


2
  At the time of trial, Clark was a college student. His family had lived at 495 Progress
for more than a decade.
                                          4


intend to get into anything other than that Clark had made previous

representations his address was 495 Progress, the prosecutor proceeded to ask

questions such as “[Y]ou’d agree that you found yourself in trouble and ultimately

arrested in February of 2010 [at which time you provided your address as 495

Progress]?” and “And at that time, when you were released on a citation to

appear, what address did you provide that you resided at as a, quote unquote,

residence address?” and “You found yourself in trouble in March of 2010. And,

again in that particular instance [you provided your address as 495 Progress]?”

       Defense counsel objected after this line of questioning. Defense counsel

then moved for a mistrial outside the presence of the jury, claiming the

prosecutor’s line of questioning was an attempt to impeach Clark improperly

because the questions involved incidents in which Clark had been arrested but

not convicted. The prosecutor responded, pointing out that he had raised the

issue the day before and if the objection was legitimate, it was not timely. The

district court denied the motion for mistrial,3 but offered to issue a curative

instruction and defense counsel requested the court do so.            Once the jury

returned, the court issued the following instruction:

              Ladies and gentlemen, an objection was made, and the
       nature of the objection was information that was provided about
       certain files. The only thing that you are to consider with respect to
       these files is whether or not the—is the issue of the defendant’s
       address and that is all.
              Is that clear? You are to disregard any other factors.




3
 The court noted the issue was raised the previous day, and also stated, “[T]his would
not have become cumulative if the objection had been made when the first mention was
made of the fact that the defendant was taken into custody.”
                                             5


       The jury convicted Clark of all counts. The district court sentenced Clark

to an indeterminate sentence of twenty-five years with a five-year mandatory

minimum for first-degree burglary, two years for carrying weapons, and five years

for each count of assault while participating in a felony, to be served

concurrently.

       On direct appeal, the only issue was whether the conviction for carrying

weapons conviction merged with the first-degree burglary conviction. See Clark,

2011 WL 6076540, at *2. This court affirmed Clark’s convictions. See id. at *5

“(The district court did not error by entering judgment on Clark’s convictions for

first-degree burglary and carrying weapons as separate offenses.”). Procedendo

issued on February 2, 2012.

       Clark, pro se, filed a timely application for postconviction relief. Defense

counsel subsequently filed a motion to amend and an amended application for

postconviction relief, which the district court granted. The amended application

raised various claims of ineffective assistance of trial and appellate counsel,

including a claim relating counsel’s failure to raise the issue of prosecutorial

misconduct stemming from the State’s presentation of evidence relating to

Clark’s prior arrests. Specifically, Clark contended counsel’s failure allowed the

“introduction of arrest affidavits for [Clark’s] unconvicted crimes [which led] the

jury to believe this is some sort of maniac repeat offender.”4




4
  Clark also subsequently filed a supplemental brief to defense counsel’s amended
application, stating in part, “Appellate Counsel was further ineffective for failing to raise
and argue a motion for mistrial [where the] verdict could have been influenced by that
disparaging and inappropriate information [of the prosecutor] referring to me as having
been ‘in trouble’ is wholly un-called for.”
                                              6


       Following a hearing, the court entered an order granting Clark’s

application in part, concluding his two convictions for assault while participating in

a felony should be merged with his first-degree burglary conviction. The court

denied Clark’s application on all other grounds, including the claim relating to

alleged prosecutorial misconduct. Clark appeals.

II.    Standard of Review

       We review the district court’s ruling on an application for postconviction

relief for correction of errors of law. See Perez v. State, 816 N.W.2d 354, 356

(Iowa 2012). When an applicant asserts a constitutional claim as the basis for

postconviction relief, as here, we review that claim de novo. See Ennenga v.

State, 812 N.W.2d 696, 701 (Iowa 2012).

III.   Ineffective Assistance of Trial Counsel

       Clark contends his trial counsel was ineffective in “failing to object to

prosecutorial misconduct.”5 To prevail, Clark must show (1) counsel breached an

essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S.

668, 687 (1984).

       The court starts with a strong presumption that counsel’s conduct was

within the “wide range of reasonable professional assistance.” See id. at 689.

“[Clark] has the burden to rebut this presumption with evidence his trial counsel’s

5
   The postconviction court addressed Clark’s claim as that of appellate counsel’s
“fail[ure] to raise the issue of improper impeachment” and trial counsel’s failure to “call
for a mistrial.” Insofar as the postconviction court’s ruling was limited to discussion of
Clark’s claim as purely a motion for mistrial issue, the State maintains error is not
preserved on Clark’s instant claim that trial counsel was ineffective for failing to object to
irrelevant evidence. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)
(observing that an issue is preserved for review if it has been raised and decided by the
district court). We elect to bypass this error preservation concern and proceed to the
merits of Clark’s appeal. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999)
(bypassing error preservation problem and proceeding to the merits of the appeal).
                                         7

‘representation fell below an objective standard of reasonableness.’” State v.

Ondayog, 722 N.W.2d 778, 785 (Iowa 2006) (quoting Strickland, 466 U.S. at

688). “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).

       Clark testified he began living with Chizewsky in 2008. The day prior, the

prosecutor mentioned other case files in which Clark represented himself as

living at 495 Progress.   The prosecutor stated he did not “intend to get into

anything of those other than to show that the defendant purported to the court in

[the] separate matter[s] that he resided at 495 Progress.” After the prosecutor

proceeded to question Clark about several prior instances he had been “in

trouble” with police and given the address of 495 Progress, defense counsel

objected. Defense counsel also moved for a mistrial. The district court denied

the motion for mistrial but gave the jury a cautionary instruction upon defense

counsel’s request.

       We need not examine the breach of duty prong on Clark’s ineffective-

assistance-of-counsel claim because the claim can be resolved on the prejudice

prong. Ledezma, 626 N.W.2d at 142 (“If the claim lacks prejudice, it can be

decided on that ground alone without deciding whether the attorney performed

deficiently.”) To establish the prejudice prong of the Strickland analysis, Clark

must show “‘a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.’” See State v. Utter, 803

N.W.2d 647, 654 (Iowa 2011) (quoting Strickland, 466 U.S. at 694)).               A

“reasonable probability” is “a probability sufficient to undermine the confidence in
                                           8

the outcome of the defendant’s trial.” Collins v. State, 588 N.W.2d 399, 402

(Iowa 1998).

       In this case, the jury heard the convincing testimony of Chizewsky

detailing the incident supporting the charges against Clark, as well as the

testimony of two other eyewitnesses to the incident.            The jury also heard

testimony from an investigating police officer who responded to the scene.

Considering the evidence against Clark, we conclude he cannot establish he was

prejudiced by counsel’s alleged failure and his claim of ineffective assistance

fails. See Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008) (noting a claim of

ineffective assistance of counsel fails if either element is lacking).

IV.    Ineffective Assistance of Appellate Counsel

       Clarks claim his appellate counsel was ineffective in failing to pursue the

above claim on direct appeal.          In light of our conclusion Clark’s claim of

ineffective assistance of trial counsel fails on the merits, we further conclude

Clark’s appellate counsel had no duty to pursue the claim on direct appeal. See

State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (“[C]ounsel has no duty to

raise an issue that has no merit.”).

V.     Conclusion

       We affirm the district court’s ruling denying, in part, Clark’s application for

postconviction relief.

       AFFIRMED.
