                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1864
                              Filed March 18, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

HAROLD LAMORN DUDLEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR

RESENTENCING.



      Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Heard by Tabor, P.J., and Mullins and Schumacher, JJ.
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SCHUMACHER, Judge.

       A defendant appeals from convictions of first-degree murder and first-

degree burglary. On appeal, he argues he received ineffective assistance of

counsel and that the sentencing court made several procedural errors. We affirm

the convictions, reject the ineffective-assistance claim, and vacate the portion of

the sentencing order related to restitution for court costs, remanding the case for

recalculation.

I. Facts and Procedural Background

       Harold Dudley (Dudley) filed a petition for dissolution from Mary Dudley

(Mary) in April 2017. Subsequently, Mary moved to an apartment complex, where

she lived for approximately fifty-two days prior to the events leading to Dudley’s

arrest and subsequent convictions for murder in the first degree and robbery in the

first degree.

       Around midnight on June 2, 2017, Charlene Lange, a friend of Mary’s and

a resident of the same apartment complex, noticed Dudley’s car in the apartment

parking lot in the far corner. She recognized the car from Dudley’s frequent visits

to the complex and would later describe it as “tan or goldish-color.” The next

morning at 9:15 a.m., Mary called 911 requesting assistance because Dudley was

trying to the pick the lock on her apartment’s front door. In that call, Mary identified

Dudley’s car as a gold Buick and gave the license plate number. Mary texted

Charlene about Dudley’s attempt to pick the lock to Mary’s front door and

requested Charlene to come sit with her until law enforcement arrived. Charlene

passed Dudley on the stairs. She declined Dudley’s request to converse with him

and continued to Mary’s apartment. As Mary opened the door to let Charlene
                                          3


enter, Dudley raced down the hallway toward Mary’s apartment. Charlene and

Mary managed to shut and lock the door just prior to Dudley reaching the doorway.

Dudley struck the door several times, knocking it down. After entering, Dudley

said, “Bitch, I got you” and fired a gun six times at Mary, killing her.1 Charlene fled

to her apartment. Dudley exited the apartment complex and drove to Ames to

meet his nephew and pastor, Orlando McClain, with whom he had been texting in

the hours prior to the murder and in the minutes afterward. Prior to the murder,

the following texts were exchanged:

               Dudley:     There is a spirit on me and in the air and I see
       it. I need some prayer bad!!!
               McClain:    Alright I will pray for you.
               Dudley:     Thanks
               McClain:    No problem
               Dudley:     Make it a strong PRAYER! !!!
               McClain:    I’ll lay hands on you when you come.
               Dudley:     Thank you! !!#
               Dudley:     Im on my way out to your place if its not a
       problem cause Im really going through!!! If not i will take care of this.
       Now!!!#
               McClain:    I’m at the church

Following the murder, Dudley resumed texting McClain:

              Dudley:       i merki killed her
              McClain:      I hope you have did anything crazy[2]
              Dudley:       She dead
              McClain:      What!!!!!!
              Dudley:       Yea
              Dudley:       Heading your way
              McClain:      If that is true, you need to turn yourself into the
       police now!!!!!!
              Dudley:       Vits done
              McClain:      Where you at?

1 While there were various references at trial to Dudley discharging five shots, the
medical examiner testified concerning six bullet wounds. Six shell casings were
recovered.
2 At trial, McClain testified that he intended to type “haven’t” but mistakenly typed

“have” instead.
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       This exchange of text messages prompted McClain to call 911. Police

Officer Ryan Hauge of the Ames Police Department was dispatched to House of

Refuge, where McClain pastors and where he was located when he called 911.

Upon arrival, McClain showed Officer Hauge the text-message exchange. Officer

Hauge called for backup. Minutes later, Dudley arrived in the parking lot in a gold

Buick Lucerne and was taken into custody. Following a jury trial, Dudley was

convicted of murder in the first degree and burglary in the first degree.

II. Standard of Review

       We review ineffective-assistance-of-counsel claims de novo.             State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006).             We examine claims of error in

sentencing procedures and restitution orders for correction of errors at law. Iowa

R. App. P. 6.907; State v. Albright, 925 N.W.2d 144, 158 (Iowa 2019).

III. Discussion

       On appeal, Dudley argues he received ineffective assistance of counsel

because trial counsel failed to object to the statements he made to McClain. He

also assigns error to the trial court’s failure to orally state on the record the reasons

for running his sentences consecutively instead of concurrently. Lastly, he argues

the order assessing court costs was in error because the court failed to address

his reasonable ability to pay.

       A. Ineffective Assistance of Counsel

       First, Dudley argues he received ineffective assistance of counsel because

his trial counsel failed to object to the introduction of his messages with McClain
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and McClain’s testimony regarding the message exchange.3 Although McClain is

Dudley’s nephew, Dudley asserts the text messages are protected by the clergy

privilege because McClain is also his pastor.

      If we find ineffective assistance, a defendant’s failure to preserve
      error in the trial court may be excused. State v. Lucas, 323 N.W.2d
      228, 232 (Iowa 1982). In order to establish ineffective assistance,
      the defendant must show that [his] trial counsel failed to perform an
      essential duty, and this failure prejudiced [him]. Strickland v.
      Washington, 466 U.S. 668, 687 (1984). Both elements must be
      shown by a preponderance of the evidence. Ledezma v. State, 626
      N.W.2d 134, 142 (Iowa 2001).
              To meet the first element of the Strickland test, counsel’s
      performance is measured against the standard of a reasonably
      competent practitioner with the presumption that the attorney
      performed his duties in a competent manner. Strickland, 466 U.S. at
      689. In order to satisfy the prejudice element, the defendant must
      show “there is a reasonable probability that, but for counsel’s
      unprofessional errors, the results of the proceeding would have been
      different.” Id. at 694.

State v. Begey, 672 N.W.2d 747, 749 (Iowa 2003).

      “We normally preserve         ineffective-assistance-of-counsel claims for

postconviction relief” proceedings, but “we will address such claims on direct

appeal when the record is sufficient to permit a ruling.” State v. Wills, 696 N.W.2d

20, 22 (Iowa 2005).     Reserving such claims for postconviction proceedings

“allow[s] full development of the facts surrounding counsel’s conduct.” State v.

Atley, 564 N.W.2d 817, 833 (Iowa 1997). “Only in rare cases will the trial record


3 We recognize Iowa Code section 814.7 was recently amended to provide in
pertinent part: “An ineffective assistance of counsel claim in a criminal case shall
be determined by filing an application for postconviction relief” and “shall not be
decided on direct appeal from the criminal proceedings.” See 2019 Iowa Acts ch.
140, § 31. In State v. Macke, however, our supreme court held the amendment
“appl[ies] only prospectively and do[es] not apply to cases pending on July 1,
2019.” 933 N.W.2d 226, 235 (Iowa 2019). We are bound by our supreme court’s
holding. We conclude, therefore, the amendment “do[es] not apply” to this case,
which was pending on July 1, 2019. Id.
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alone be sufficient to resolve the claim.” Id. We are particularly likely to preserve

ineffective-assistance-of-counsel claims “where the challenged actions of counsel

implicate trial tactics or strategy which might be explained in a record fully

developed to address those issues.” State v. Rubino, 602 N.W.2d 558, 563 (Iowa

1999). We also preserve ineffective-assistance claims if “the present record does

not allow us to decide if such tactic or strategy was reasonable, under prevailing

professional norms.” State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012).

       Here, we find the record sufficient to address Dudley’s claim of ineffective

assistance because the record contains overwhelming evidence of the elements

of first-degree murder and first-degree burglary. We conclude that Dudley is

unable to prove prejudice.

       Because the defendant’s trial strategy with respect to the murder count was

to seek to lower the conviction from first-degree murder to second-degree murder,

if there was a reasonable probability of a verdict of second-degree murder had the

text messages been excluded, Dudley could succeed in proving the prejudice

prong of a claim of ineffective assistance of counsel. See Begey, 672 N.W.2d at

749. Dudley was charged with premeditated first-degree murder under Iowa Code

section 707.2(1)(a) (2017).     This species of first-degree murder differs from

second-degree murder by requiring proof that the killing was perpetrated “willfully,

deliberately, and with premeditation.” Iowa Code § 707.2(1)(a). Additionally, a

conviction for first-degree murder requires proof of specific intent to kill. State v.

Serrato, 787 N.W.2d 462, 469 (Iowa 2010).

       These elements of first-degree murder are supported by overwhelming

evidence. Lange observed the defendant’s car in the apartment complex parking
                                         7


lot around midnight before the morning of the murder. The defendant attempted

to pick the lock on the victim’s door within hours of the murder. The defendant

attempted to stop Lange and speak with her in a stairwell just down the hall from

Mary’s apartment. Footage from the apartment complex’s surveillance camera

shows the defendant waiting just beyond the hallway leading to Mary’s apartment.

When Mary opened the door to let Lange in, the defendant revealed himself and

raced toward the open door. Though Mary and Lange managed to close and lock

the door, the defendant knocked the door in to gain entry. The defendant shot

Mary multiple times.    The sum of these facts precludes us from finding any

reasonable probability of a different result had the text messages been excluded.

Since we hold there is no reasonable probability that the exclusion of the text

messages would have led to a conviction for second-degree murder, the defendant

cannot succeed on the prejudice prong of a claim of ineffective assistance of

counsel with respect to the murder charge.

       Dudley also contends that the contested text messages “affected . . . the

first-degree burglary conviction (requiring the jury to find that Dudley intended to

commit a felony or assault when he broke into Mary’s apartment).” We find the

text messages to be substantially less relevant to the burglary charge than they

are to the elements of first-degree murder. However, assuming arguendo the text

messages are relevant to the burglary charge, the record evidence supporting the

elements of first-degree burglary is so overwhelming that we conclude the

defendant cannot show a reasonable probability of a different result with respect

to the burglary charge had the text messages been excluded. We therefore reject
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Dudley’s ineffective-assistance-of-counsel claim to the extent it references the

burglary charge.

         Defense counsel points out that the State heavily relied on the text

messages in seeking to prove the premeditation and intent elements of first-degree

murder, particularly during closing arguments. We agree with this characterization

of the State’s closing argument, but we nonetheless find the significant evidence

of specific intent to kill, premeditation, willfulness, and deliberation to be

determinative.

         B. Restitution Calculation

         Dudley argues the district court erred in assessing court costs against him

in the written sentencing order without making a determination of his reasonable

ability to pay. We agree that a remand is necessary for a partial recalculation of

Dudley’s restitution obligations.

         The court stated at the sentencing hearing: “[Defense counsel], would you

agree that your client’s ability to pay any attorney’s fees back is zero?” Defense

counsel agreed, and the court said, “I will enter that.” The court did not inquire as

to Dudley’s reasonable ability to pay court costs.          However, in the written

sentencing order filed on October 26, 2018, the court ordered Dudley to pay court

costs.

         In the time since the court entered the sentencing order, the Iowa Supreme

Court decided State v. Albright, 925 N.W.2d 144 (Iowa 2019), which requires we

vacate and remand for a partial recalculation of restitution.

         In Albright, the Iowa Supreme Court identified two categories of restitution,

the first of which includes restitution to victims and to the clerk of court for fines,
                                         9


penalties, and surcharges. 925 N.W.2d at 159. The second category includes

restitution

       for crime victim assistance reimbursement, restitution to public
       agencies pursuant to section 321J.2, subsection 13, paragraph “b”,
       court costs including correctional fees approved pursuant to section
       356.7, court-appointed attorney fees ordered pursuant to section
       815.9, including the expense of a public defender, when applicable,
       contribution to a local anticrime organization, or restitution to the
       medical assistance program pursuant to chapter 249A.

Id. (quoting Iowa Code § 910.2(1)). The court can only order restitution for items

in this second category to the extent the offender has the reasonable ability to pay.

Id. The court costs imposed by the written sentencing order are a portion of the

second category of restitution, which require a reasonable-ability-to-pay

determination. Such determination is lacking in the record. Therefore, pursuant

to Albright, we vacate the portion of the Dudley’s sentence having to do with

category II restitution and remand for a calculation of this category of restitution

under Albright.

       C. Sentencing Rationale

       Dudley argues the sentencing court failed to give reasons on the record for

imposing consecutive sentences. We disagree.

       Iowa Rule of Criminal Procedure 2.23(3)(d) requires district courts to “state

on the record its reason for selecting the particular sentence.” This rule “applies

to the district court’s decision to impose consecutive sentences.” State v. Hill, 878

N.W.2d 269, 273–74 (Iowa 2016) (citing State v. Jacobs, 607 N.W.2d 679, 690

(Iowa 2000)). Although a court may rely on the same reasons for imposing a

sentence of incarceration as it does in determining whether sentences should run
                                            10


concurrently or consecutively, the district court must “explicitly state the reasons

for imposing a consecutive sentence.” Id.

         A “terse and succinct” statement may be sufficient to satisfy rule 2.23(3)(d)

“so long as the brevity of the court’s statement does not prevent review of the

exercise of the trial court’s sentencing discretion.” State v. Thacker, 862 N.W.2d

402, 408 (Iowa 2015) (quoting State v. Johnson, 445 N.W.2d 337, 343 (Iowa

1989)). The Iowa Supreme Court has “rejected a boilerplate-language approach

that does not show why a particular sentence was imposed in a particular case.”

Id. However, a “terse and succinct” statement will suffice if “the statement in the

context of the record demonstrates what motivated the district court to enter a

particular sentence.” Id. at 410. A district court can satisfy the requirements of

rule 2.23(3)(d) “by orally stating the reasons on the record or placing the reasons

in the written sentencing order.” State v. Thompson, 856 N.W.2d 915, 919 (Iowa

2014).

         Here, we find the sentencing court properly stated the reasons for imposing

concurrent sentences.       First, we consider the court’s oral pronouncement at

sentencing. The court listed the reasons for imposing sentence, saying,

         The punishment for the crime is mandatory by state law, and the
         court has no discretion in that regard. In any event, if the court did
         have discretion, the court would give the exact same sentence as
         required by law. This whole act was basically, in the court’s mind,
         an execution. The victim kneeling down, her hands on top of her
         head hoping, perhaps, it would stop the bullets or awaiting the
         inevitable end. In any event, five shots did enter her body, and her
         life ended cruelly. The court finds that the defendant is hereby
         adjudged guilty of Count I, murder in the first degree, in violation of
         the Code of Iowa, and sentenced to a term of incarceration or
         imprisonment for the rest of his life. Count II, found guilty of burglary
         in the first degree, sentenced to a term of 25 years in prison. The
         sentences shall run consecutive to each other. The court, of course,
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       has no discretion other than to give a life sentence, and this court
       has already stated, even if it could, it would still impose a life
       sentence. The court has considered all the sentencing
       considerations under [section] 907.5 of the Code of Iowa.

       After the sentencing hearing, the court issued a written sentencing order, in

which the court checked a box indicating the sentences would run consecutively

based on “the separate and serious nature of the offenses.”          This statement

sufficiently explained the court’s reasons for imposing concurrent sentences for

the purposes of rule 2.23(3)(d). Id. at 919; see also State v. Carberry, 501 N.W.2d

473, 478 (Iowa 1993) (finding an “extremely terse” explanation sufficient where it

was “reasonably clear from what was said that the judge imposed consecutive

sentences based on his perception of the aggregate culpability of two separate

and distinct heinous offenses”).

IV. Conclusion

       We find the sentencing court sufficiently stated reasons on the record for

the imposition of consecutive sentences, and we affirm. We reject the defendant’s

ineffective-assistance-of-counsel claim. We vacate the portion of the sentencing

order related to category II restitution and remand for a recalculation of restitution

in accordance with Albright.

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR

RESENTENCING.
