                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1674
                            Filed December 6, 2017

JOSHUA DAVID MITCHELL,
  Applicant-Appellant,

vs.

STATE OF IOWA,
   Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Linn County, Kevin McKeever,

Judge.



      An applicant appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Joshua David Mitchell, Fort Dodge, appellant pro se.

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

General, for appellee.



      Considered by Vogel, P.J., and Tabor and Bower, JJ.
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VOGEL, Presiding Judge.

       Joshua Mitchell appeals the district court’s denial of his application for

postconviction relief (PCR). He asserts his trial counsel was ineffective for (1)

allowing him to plead guilty when he claims his plea was not made voluntarily and

intelligently, (2) failing to perform an adequate investigation, and (3) failing to move

to suppress his confessions. He also asserts the PCR court erred when it excluded

exhibits he sought to introduce.

   I. Background Facts and Proceedings

       Mitchell pled guilty to two counts of sexual abuse in the second degree, in

violation of Iowa Code sections 709.1 and 709.3(1)(b) (2011). The trial information

alleged that Mitchell committed multiple sex acts on his five- and nine-year-old

daughters. Mitchell agreed to plead guilty to both counts in exchange for the

State’s recommendation the sentences run concurrently. The trial court accepted

the plea after finding it was entered voluntarily and intelligently.         The court

accepted the State’s recommendation and imposed two, twenty-five-year terms of

incarceration, to be served concurrently.

       Mitchell filed two pro se applications for postconviction relief over the next

few years, which were eventually amended by appointed counsel and came on for

hearing on May 12, 2016. After hearing testimony from both Mitchell and his trial

counsel, the PCR court denied Mitchell’s application. Mitchell 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). We review the court’s evidentiary rulings

for an abuse of discretion. Hall v. Jennie Edmundson Mem’l Hosp., 812 N.W.2d
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681, 685 (Iowa 2012). “An abuse of discretion occurs when the trial court exercises

its discretion on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.” Id.

   III. Ineffective Assistance of Counsel

       To establish a claim of ineffective assistance of counsel, an applicant must

show (1) the attorney failed to perform an essential duty and (2) prejudice resulted

to the extent it denied the applicant a fair trial. State v. Carroll, 767 N.W.2d 638,

641 (Iowa 2008). In order to show prejudice, an applicant must show that, but for

counsel’s breach of duty, he would not have pled guilty. Ennenga, 812 N.W.2d at

708.

          A. Mental Condition

       Mitchell contends his trial counsel provided ineffective assistance because

counsel allowed him to plead guilty although his plea was not voluntarily or

intelligently given due to his “mental conditions and medications.” Mitchell claims

his long history of mental illness, including past diagnoses of ADHD, bipolar

disorder, Asperger’s syndrome, and anxiety, and the medication prescribed when

he was in custody awaiting the outcome of his case rendered his plea involuntary

and unintelligent.

       The record reveals that Mitchell suffered from a variety of psychological and

physiological symptoms from the time of his arrest on April 18, 2011, until the plea

proceedings on July 7, 2011. Despite Mitchell’s claims that his mental condition

and medications affected his capacity, the PCR transcript reveals his trial counsel

was aware of Mitchell’s claims that he heard voices and was depressed. Mitchell’s

trial counsel also stated Mitchell felt better on the prescribed medications and he
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had no questions regarding Mitchell’s capacity or competency to render a plea. A

review of the plea proceedings indicates Mitchell answered all the court’s

questions appropriately and gave coherent statements forming a factual basis of

the two charges. The PCR court found:

       Although [Mitchell] obviously suffers from mental illness, he has not
       put forth any evidence that would suggest that his mental illness
       would result in a finding of either a diminished capacity at the time of
       the offense or a lack of competence at the time of the plea or
       sentencing hearings.

       As to whether any medications Mitchell was taking affected his rendering of

the plea, the State asserts Mitchell has waived any such claim. We agree, as the

PCR court only ruled on the effect of Mitchell’s mental capacity, not on the effect

of any of his medications, on the plea proceedings. But even if the PCR court had

ruled on any effect of the medications Mitchell was taking, a review of the medical

records made the day before the plea proceedings indicate Mitchell was not

experiencing any side effects from the prescribed medications such that his plea

would be involuntary or unintelligently made. Therefore, we conclude Mitchell has

failed to prove trial counsel was ineffective in allowing him to plead guilty or that

his PCR counsel was ineffective in not pursuing a ruling on whether Mitchell’s

medications affected his ability to render his plea.

           B. Investigation

       Mitchell next asserts his trial counsel provided ineffective assistance

because counsel did not perform an “adequate investigation” prior to his guilty

plea. In support, Mitchell points to trial counsel’s lack of filing any pretrial motions,

taking any depositions, or conducting “meaningful” discovery, and trial counsel’s

failure to request a mental evaluation or review his mental health records. Mitchell
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claims these omissions left him uninformed as to whether he should plead guilty

or proceed to trial because he was not presented with all of the information or

possible defenses at his disposal.

           Trial counsel testified that he conducted his office’s standard discovery

protocol, beginning with investigators interviewing Mitchell.           The investigators

notified counsel that Mitchell confessed to them that he sexually abused his

daughters. Counsel then spoke with Mitchell and reviewed documents, including

the interview reports, police reports, minutes of evidence, and Child Protection

Center reports. Mitchell’s trial counsel made a strategic decision not to depose

Mitchell’s daughters because he did not want to lock in, or have the children

“rehearse,” their testimony that might be adverse to Mitchell should Mitchell choose

to go to trial. Additionally, once counsel became aware of Mitchell’s numerous

confessions to hospital staff, case workers, and investigators, and despite

Mitchell’s assertion that he embellished his confessions, counsel was fearful of

Mitchell perjuring himself should he go to trial. See Brewer v. State, 444 N.W.2d

77, 83 (Iowa 1989) (“[W]e will not reverse where counsel has made a reasonable

decision concerning trial tactics and strategy, even if such judgments ultimately

fail.”).

           Key to Mitchell’s decision to plead guilty was his desire to avoid a potentially

longer “sentence” away from his family if he were to assert an insanity defense

and, if successful, be civilly committed. For that reason, his trial counsel did not

pursue an insanity or diminished capacity defense.              Therefore, with Mitchell

making the decision to not pursue such a defense, he cannot now claim his trial
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counsel breached an essential duty in not pursuing an insanity defense for which

counsel would then need to obtain a mental evaluation or review medical records.

       Moreover, trial counsel testified he met with Mitchell and observed his

mental state first-hand. Mitchell told him he was doing much better, while in

custody, after having his medications properly adjusted.         Trial counsel then

testified he had no concerns about Mitchell’s capacity or competency to

understand the plea proceedings, what he was pleading to and the potential

consequences of the court accepting the plea.         Counsel testified he left the

decision whether to plead guilty to Mitchell, then focused efforts on obtaining a

favorable plea offer, which he did. As the State notes, Mitchell has not offered any

evidence that would establish a more thorough investigation by trial counsel would

have uncovered hidden exculpatory evidence that might have impacted Mitchell’s

decision whether to plead guilty or go to trial.

       In its ruling, the PCR court specifically noted it found trial counsel more

credible than Mitchell on events related to the criminal case, including the level of

investigation into the merits of the case and counsel’s deference to allowing

Mitchell to make the final decision as to whether to enter a plea or proceed to trial.

See Taylor v. State, 352 N.W.2d 683, 687 (Iowa 1984) (giving weight to the court’s

findings of witness credibility). Therefore, Mitchell has failed to show either a

breach of his counsel’s duty or that he was prejudiced by counsel’s performance.

See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).

          C. Confessions

       Mitchell next contends his trial counsel provided ineffective assistance

because he did not file a motion to suppress Mitchell’s alleged involuntary
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confessions. Mitchell asserts he was encouraged and persuaded to confess by a

nurse because the nurse indicated it would be better for Mitchell’s family if he

confessed. Mitchell also claims his mental instability contributed to his many

involuntary confessions.

       Upon our review of the record, we conclude Mitchell has failed to prove his

counsel was ineffective in failing to file a motion to suppress. Although Mitchell

alleged in his affidavit in support of his application for postconviction relief that a

nurse coerced him into confessing, this alleged coercion is not a part of the minutes

of evidence, and none of the witnesses listed would have testified to the alleged

coercion. In addition, Mitchell focuses his claim of coercion on his confession to

the nurse and ignores the numerous other confessions he made to law

enforcement and DHS staff, including Mitchell’s confession to Officer Peiffer after

the officer stated he could not promise help or leniency. The record does not

support the idea that Mitchell was coerced in any way when he made his multiple

confessions.

       In addition, the record does not support Mitchell’s claim that his mental

instability contributed to his confessions. During the initial investigation, Mitchell

clearly understood the gravity of the allegations against him and their potential

consequences. The minutes of testimony state:

       While Officer Peiffer and DHS worker Jones were obtaining the
       search warrant, the defendant called Jones in front of Officer Ronald
       DeWitt who was stationed at the home pending the warrant. The
       defendant stated that he was a sex addict who masturbates at least
       once every day. That there is a room in the basement where all of
       his pornography is at and he advised that there would be DNA all
       over the floor of that room. At no time did Officer DeWitt ask the
       defendant any questions in reference to this investigation, he was
       there just to detain and secure the premises until a warrant would be
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       obtained. At the conclusion of the search warrant execution, the
       defendant asked Investigator Peiffer what he could do to avoid jail
       time. Officers believed this to be an odd question because he hadn’t
       been charged with anything and in a very short period of time went
       from proclaiming his innocence to asking how he could avoid jail
       time.

       Trial counsel’s review of discovery and each confession revealed the

essential part of the confession was consistent each time it was stated. The

numerous, consistent confessions indicate Mitchell’s mental capacity was not

diminished at the time each confession was made. The record reflects Mitchell

was concerned about the length of time he could face if incarcerated or

involuntarily committed and he made voluntary confessions in an effort to minimize

his sentence. Therefore, Mitchell’s trial counsel was not ineffective in failing to file

a motion to suppress.

   IV. Excluded Exhibits

       Finally, Mitchell asserts the PCR court erred when it excluded exhibits

Mitchell sought to introduce from Drugs.com, a website listing information on

prescription drugs. In excluding the exhibits, the PCR court stated it believed they

were being offered to show the possible side effects of certain prescription

medication but there were no nurses or doctors available for cross-examination as

to how Mitchell may or may not have been affected by the medication he was

taking. Therefore, the PCR court ruled the exhibits were inadmissible because

they contained hearsay.

       For the first time on appeal, Mitchell asserts Iowa Rule of Evidence

5.803(17) provides an exception to the rule against hearsay for market reports.

See State v. Heuser, 661 N.W.2d 157, 164-65 (Iowa 2003) (admitting labels from
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boxes of cold medication under “market report” exception to hearsay rule). Since

the PCR court did not rule on the exception, Mitchell has failed to preserve error.

Mitchell alternatively asserts his PCR counsel was ineffective in failing to assert

the exception. Because the ordinary rules of error preservation do not apply to

claims of ineffective assistance of counsel, we may proceed to evaluate his claim.

State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010).

       Upon our review of the record, we conclude Mitchell was not prejudiced by

PCR counsel’s failure to assert the market report exception. See Ledezma, 626

N.W.2d at 142 (“[B]oth elements [of an ineffective-assistance claim] do not always

need to be addressed. If the claim lacks prejudice, it can be decided on that ground

alone without deciding whether the attorney preformed deficiently.”).              The

documents Mitchell sought to introduce list general information and a number of

side effects a person might experience when taking risperidone. The State argues,

and we agree, that a person prescribed this drug may not experience all or any of

the side effects listed. Further, the listed information is not specific to Mitchell and

does not contain any name brand associated with risperidone that would generally

be trusted by the public. See Heuser, 661 N.W.2d at 164-65. Moreover, nothing

in the plea proceeding record suggests the medication risperidone was affecting

Mitchell’s ability to give a voluntary and intelligent plea. With each question

propounded by the court, Mitchell coherently responded and provided a factual

basis for his plea.

       At the sentencing hearing, Mitchell stated he recalled entering the plea and

had no reason to believe the sentence should not be pronounced. The PCR court

found Mitchell was competent to enter his guilty plea and while he did experience
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bouts of anxiety while in custody, the record does not support a finding that he

experienced any of the side effects listed in the Drugs.com proffered exhibits at

the time of his guilty plea.

   V. Conclusion

       Because trial counsel did not breach an essential duty in investigating

Mitchell’s case, in failing to pursue a suppression of his confessions, or by allowing

Mitchell to plead guilty, and because Mitchell was not prejudiced by PCR counsel’s

failure to assert the “market record” exception to the hearsay rule, Mitchell’s

ineffective-assistance claims fail, and we affirm.

       AFFIRMED.
