                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1204
                              Filed August 2, 2017


TERRY T. COBBINS JR.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Marion County, Martha L. Mertz,

Judge.



      Terry Cobbins Jr. appeals from the district court’s denial of his application

for postconviction relief. AFFIRMED.




      Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.

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

Attorney General, for appellee State.




      Considered by Mullins, P.J., and Bower and McDonald, JJ.
                                        2


MULLINS, Presiding Judge.

      Terry Cobbins Jr. appeals from the district court’s denial of his application

for postconviction relief (PCR), following his conviction for first-degree murder.

He argues his trial counsel rendered ineffective assistance in failing to

(1) conduct a proper pretrial investigation and (2) object to the admission

Cobbins’s prior theft convictions. We affirm.

      I.     Background Facts and Proceedings

      The following undisputed facts were set forth in our opinion on direct

appeal:

              Terry Cobbins worked at Marzetti’s Frozen Pasta in Clive.
      His boss was Mike Miller, the production supervisor. Miller lived in
      Knoxville with his wife, Teresa.
              Miller also supervised Neida Pinon. Miller told Pinon he was
      unmarried and the two began having an affair about three months
      after Pinon started at Marzetti’s in October 2009. Miller would often
      go to Pinon’s home . . . in the mornings between 5:30 and 6:00.
      Miller bought her many gifts including a diamond and pearl ring.
      But when Pinon found out Miller was married, she ended the
      relationship. The affair rekindled when Miller showed Pinon some
      divorce papers, but faltered again when Pinon saw Miller with his
      wife, Teresa. Pinon told Miller he would have to choose between
      her and Teresa. Pinon left to spend Christmas vacation of 2010 in
      Mexico, and told Miller to take that time to think it over. When
      Pinon returned ten days later, Miller picked her up in Kansas City
      and drove her home . . . . Pinon told him if he left that night, their
      relationship was over. Miller left.
              According to Cobbins, it was about that same time, around
      Christmas of 2010, when Miller started dropping by his house
      unexpectedly. Miller knew where Cobbins lived because Miller
      sometimes gave him a ride home from work. Cobbins described
      Miller as “on edge” and recalled that Miller asked him to find a gun.
      Cobbins also said Miller requested that Cobbins “take care for
      some business for him.”
              Cobbins told his neighbor, Tyree Lewis, that he and his boss
      were “pretty cool” or “tight.” Cobbins also told Lewis the boss
      wanted his wife killed. Cobbins asked if Lewis would be willing to
      drive Cobbins to do the job and Cobbins would “do everything
      else.” Cobbins asked Lewis if he could get a gun. He told Lewis
                                 3


the job would be lucrative: they would split $30,000 or Lewis would
get $30,000. Cobbins broached the subject with Lewis several
times, most recently during December of 2010.
        Cobbins also talked about his boss with Amber Lyons, his
wife’s cousin. In the fall of 2010, Cobbins told her he was being
paid $50,000 to “do a hit on some female” in Knoxville. Cobbins
told Lyons he was going to wear a trash bag over his clothes so he
could “get away with it.” One time when Lyons was babysitting for
[Cobbins and his wife], she saw Miller stop by and duck into
[Cobbins’s wife]’s car. When Lyons told Cobbins, he said: “Don’t
worry about it, it’s my boss, he’s putting something in the car for
me.” Cobbins later told investigators Miller left him coveralls and
gloves in a bag.
        Cobbins twice discussed killing his boss’s wife with his
friend, Mario McPherson. On the first occasion in the fall of 2010,
Cobbins told McPherson he had a way to make some quick money
and all McPherson had to do was drive. A few weeks later, he told
McPherson he needed to hurt his boss’s wife in Knoxville and he
would pay McPherson $1000 or $2000 to drive him to Knoxville and
back. McPherson also overheard Cobbins on the phone asking
where he could get a gun.
        On the morning of January 7, 2011, Miller picked up Bernard
Bussey, a former employee at Marzetti’s, and drove to Pinon’s
home. Pinon was not expecting Miller. Miller told Bussey to take
his car, ostensibly so Bussey could look for a temporary job. Miller
knocked on Pinon’s door around 6:30 a.m. to ask for a ride to work.
Pinon agreed to give him a ride, but they were delayed in leaving
because Miller locked Pinon’s keys in her car and had to wait for a
locksmith to open it.
        When Miller and Bussey met later at Marzetti’s, Miller told
Bussey to use his car to pick up Cobbins from Iowa Lutheran
Hospital, where he was recovering from an asthma attack. Cobbins
suffered the attack the day before and was admitted to the hospital
overnight. Cobbins checked himself out of the hospital when
Bussey arrived. The two left the hospital at 8:49 a.m.
        Bussey testified he drove Cobbins to a “big old house” in
Knoxville, following the directions given by Cobbins. According to
Bussey, Cobbins went to the door of the house and was let in.
Cobbins stayed inside for five to ten minutes and then returned to
the car. Bussey then drove them back to Marzetti’s—estimating
their arrival at between 11 a.m. and noon.
        Meanwhile, Teresa’s adult daughter, Shawna Mendenhall,
tried to reach her mother the morning of January 7, 2011, and
found it unusual she did not answer the telephone. Teresa had
severe vision problems and did not have a driver’s license.
Worried, Mendenhall went to the Millers’ Knoxville home just after
                                 4


10:30 a.m. and found the door uncharacteristically unlocked. Her
mother was dead on the kitchen floor, shot once in the head.
        An analysis of cell phone records confirmed Cobbins and
Bussey arrived in the Knoxville area at the approximate time of
Teresa’s death.      Signals from various cell towers indicated
Cobbins’s phone was moving from Des Moines to Knoxville
between 9:01 a.m. and 10:37 a.m. Then after 10:41 a.m., the cell
phone moved back through Pleasantville and toward Des Moines.
The cell records revealed a number of calls between Cobbins’s cell
phone and Miller’s cell phone or the phone at Marzetti’s.
        When Bussey and Cobbins returned from Knoxville, Miller
accompanied them to the airport and paid for a rental car for
Cobbins. The manager at the Enterprise Rent-A-Car thought Miller
and Cobbins seemed “quite antsy and nervous throughout the
transaction,” which was completed just after noon. Cobbins drove
the rented Chevy Suburban to Milwaukee, Wisconsin.
        On January 8, 2011, the morning after the murder, Miller
went to Pinon’s house to express his love for her. Pinon told Miller
about her son finding bullets in the parking spot where her car had
been parked when Miller locked the keys inside the day before.
Pinon had placed the bullets into a tequila glass on a kitchen shelf.
Although Miller denied the bullets belonged to him, he put them in a
bag and left with them.
        On January 10, 2011, Cobbins started his trip back from
Milwaukee, but after receiving a call from his son’s mother that
there was a warrant out for his arrest in Iowa, he turned around.
He was taken into custody by the Wisconsin Division of Criminal
Investigation as a material witness.        The Wisconsin agents
interviewed Cobbins on January 10 and 11. The Wisconsin agents
knew Iowa law enforcement searched Cobbins’s house and found a
MapQuest printout with directions from Marzetti’s in Clive to the
Millers’ house in Knoxville. The map had been printed out on
December 8, 2010.
        In the interviews Cobbins repeatedly denied going to
Knoxville. Cobbins initially said he wasn’t sure if Miller was
married, but acknowledged “there may be somebody on the side.”
Cobbins eventually described a situation where Miller “wanted
someone handled” in exchange for money. Cobbins said Miller
asked him to do it or to find him a gun. Cobbins also admitted
Miller brought coveralls to his house to be used in the murder.
Cobbins said he carried his cell phone with him on January 7.
        The Wisconsin agents, who made audio-recordings of the
interviews, explained that at a couple of points, Cobbins became
visibly shaken. Cobbins began sweating profusely when asked
about turning around and heading back to Milwaukee after learning
Iowa authorities issued a warrant for his arrest. He also uttered
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         “no, no, no” in a low voice with his head in his hands when asked a
         question about Mike, coveralls, and large amounts of money.
                Following the investigation, on March 25, 2011, the Marion
         County Attorney charged Cobbins with first-degree murder in the
         death of Teresa Miller. The case went to trial on February 21,
         2012, and the jury returned a guilty verdict on March 1, 2012. The
         court sentenced Cobbins to life in prison.

State v. Cobbins, No. 12-0857, 2013 WL 6405461, at *1–3 (Iowa Ct. App. Dec. 5,

2013).

         Cobbins appealed, claiming there was insufficient evidence to support his

conviction and his trial counsel had provided ineffective assistance by failing to

(1) “allege the lack of corroboration for the accomplice testimony when moving

for judgment of acquittal”; (2) “request a jury instruction requiring corroboration of

accomplice testimony”; and (3) “object to the impeachment of Cobbins by his

prior theft convictions.” Id. at *5–6. Our court affirmed Cobbins’s conviction,

finding the jury’s verdict was supported by “[a] wealth of circumstantial evidence

link[ing] Cobbins to the murder plot.” Id. at *5. Our court further found there was

“abundant evidence in the record to corroborate [the alleged accomplice]’s

testimony,” and thus, trial counsel was not ineffective in failing to move for

judgment of acquittal or request a jury instruction on that basis. Id. at *7. We

preserved for postconviction proceedings the issue of whether Cobbins’s trial

counsel should have objected to the admission of Cobbins’s prior theft

convictions, stating “[o]ur record does not show what kind of theft Cobbins

committed” but “reasonable defense attorneys would have considered the issue

‘worth raising’ for some prior theft convictions.”    Id. at *8.   Finally, our court

determined that although Cobbins’s prior absence-from-custody conviction was

not admissible under Iowa Rule of Evidence 5.609(a)(2) because it did not
                                          6


involve a crime of dishonesty, the district court’s admission of the prior conviction

was harmless given the overwhelming evidence of Cobbins’s guilt. Id. at *9.

       Cobbins filed a pro se application for PCR. PCR counsel for Cobbins

subsequently amended the application, alleging numerous claims of ineffective

assistance of trial and appellate counsel, which the district court denied. Cobbins

appeals.

       II.     Scope and Standard of Review

       We generally review PCR proceedings for correction of errors at law.

Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016).                 However, when an

applicant raises constitutional claims, such as claims of ineffective assistance of

counsel, we apply a de novo review. See id.; Bonilla v. State, 791 N.W.2d 697,

699 (Iowa 2010).

       III.    Analysis

       “Ineffective-assistance-of-counsel     claims   are   an   exception   to   the

traditional error-preservation rules.”   State v. Fountain, 786 N.W.2d 260, 263

(Iowa 2010).     To succeed on a claim of ineffective assistance of counsel,

Cobbins must show “by a preponderance of the evidence: ‘(1) his trial counsel

failed to perform an essential duty, and (2) this failure resulted in prejudice.’”

State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015) (quoting State v. Adams,

810 N.W.2d 365, 372 (Iowa 2012)); accord Strickland v. Washington, 466 U.S.

668, 687 (1984). Failure to prove either prong is fatal to the claim. See Everett

v. State, 789 N.W.2d 151, 159 (Iowa 2010). In examining Cobbins’s claims, we

presume trial counsel performed their duties competently. See Thorndike, 860

N.W.2d at 320.
                                          7

              A.      Trial Counsels’ Pretrial Investigation

       On appeal, Cobbins argues his trial counsel rendered ineffective

assistance in failing to conduct a proper pretrial investigation. He complains

there is no record of what the public defender’s office investigator did in this case

to prepare for trial. He baldly asserts trial counsel should have more thoroughly

investigated the State’s witnesses Lewis, Lyons, and McPherson, which would

have revealed that the witnesses were known liars and could have been

impeached or could have served as the basis for suppressing the evidence

obtained pursuant to the search warrant that ultimately would have led to a

different result at trial.   He further asserts trial counsel failed to investigate

whether Bussey had received any money in payment for the murder, which may

have proved Bussey had committed the crime instead of Cobbins.               Cobbins

claims the cumulative effect of all of these alleged failures resulted in prejudice to

him.

       “When complaining about the adequacy of an attorney’s representation, it

is not enough to simply claim that counsel should have done a better job.”

Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (citation omitted). Cobbins

does not suggest who would have provided any of this information to trial counsel

or otherwise state how counsel could have discovered this information outside of

Cobbins’s bare accusations. Further, Cobbins has not shown how use of such

evidence at trial would have resulted in a different outcome.         See id. (“The

applicant must state the specific ways in which counsel’s performance was

inadequate and identify how competent representation probably would have

changed the outcome.”); see also Strickland, 466 U.S. at 694 (“The defendant
                                         8


must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”).

       Moreover, we find the record contains overwhelming evidence of

Cobbins’s guilt. See Boose v. State, No. 13-1130, 2014 WL 7343218, at *3

(Iowa Ct. App. Dec. 24, 2014) (applying the “overwhelming evidence” standard

cited in State v. Maxwell, 743 N.W.2d 185, 197 (Iowa 2008), to the applicant’s

ineffective-assistance-of-trial-counsel claim in a PCR action).         The State

presented evidence Cobbins and Miller knew each other well.           Cobbins told

several people about his and Miller’s plan to kill Miller’s wife, Teresa. He offered

money to people if they agreed to drive him to the victim’s home or help him

obtain a gun. While searching Cobbins’s house, police found directions to the

victim’s home that had been printed less than a month before the murder. Cell

phone records showed Cobbins was at the victim’s home at the time of the

murder, and Cobbins admitted he had his phone with him that day and that he

rode with Bussey to the victim’s home. Cell phone records also showed Cobbins

was in contact with Miller during that time. After Bussey and Cobbins returned

from the victim’s home, Miller drove Cobbins to a rental car service and paid for

the rental car that Cobbins drove out of state. Cobbins was returning to Iowa

when he learned there was a warrant out for his arrest and turned around.

Additionally,    Cobbins   made   numerous     inconsistent   statements    to   law

enforcement about his involvement with Miller and the murder plot.

       Based on the record before us, we find Cobbins has not shown he was

prejudiced by trial counsels’ alleged failure to conduct a proper pretrial

investigation.   Therefore, we conclude trial counsel did not render ineffective
                                         9

assistance with regard to this claim. See State v. Shanahan, 712 N.W.2d 121,

142 (Iowa 2006).

              B.     Prior Theft Convictions

       Cobbins next asserts his trial counsel provided ineffective assistance in

failing to object to the admission of his prior theft convictions. On direct appeal,

we preserved the issue for PCR proceedings to discover the underlying facts of

the prior theft convictions and determine whether counsel had breached an

essential duty by not objecting.

       At the PCR hearing, Cobbins presented evidence of the underlying facts

of his prior theft convictions. He testified he was convicted of fourth-degree theft

in 2006 for loading several bottles of liquor into a cart, covering the bottles with

bags, and attempting to push the cart out of the store. He testified he was

convicted of fifth-degree theft in 2010 for taking a cab ride and then getting out of

the car and running away when he got to his destination because he did not have

enough money to pay the fare.

       The Iowa Supreme Court raised the question of whether all crimes of theft

and burglary per se involve dishonesty and are thus admissible under rule

5.609(a)(2) in a footnote in State v. Harrington, 800 N.W.2d 46, 51 n.4 (Iowa

2011). We have addressed this issue many times in the intervening six years.

See Cobbins, 2013 WL 6405461, at *8; see also State v. Reed, 2017 WL

104939, at *4 (Iowa Ct. App. Jan. 11, 2017) (noting that “the footnote . . . the

Harrington court attached to its ‘settled law’ statement . . . motivate[d the

defendant]’s ineffective-assistance claim”); State v. Denney, No. 15-0318, 2016

WL 3269556, at *4 (Iowa Ct. App. June 15, 2016) (recognizing the question left
                                          10

unanswered in Harrington but ultimately concluding the defendant suffered no

prejudice as a result of the admission of the prior theft convictions); State v.

O’Neal, No. 11-0915, 2012 WL 4513809, at *5 (Iowa Ct. App. Oct. 3, 2012)

(noting that the issue raised in the Harrington footnote had been properly argued,

but “we d[id] not believe that we, as an intermediate appellate court, [we]re at

liberty to overturn longstanding precedent from the Iowa Supreme Court

consistently recognizing theft as a crime that per se involves dishonesty”). At the

time of Cobbins’s trial in 2012, and presently, our case law held that all

convictions for theft and burglary are crimes of dishonesty admissible under rule

5.609(a)(2) for impeachment purposes. See, e.g., Harrington, 800 N.W.2d at 51.

“We are not at liberty to overturn Iowa Supreme Court precedent.”         State v.

Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990); see State v. Eichler, 83

N.W.2d 576, 578 (Iowa 1957) (“If our previous holdings are to be overruled, we

should ordinarily prefer to do it ourselves.”).

       Nevertheless, even if we assumed Cobbins’s trial counsel breached an

essential duty in not raising the issue, Cobbins has not shown he was prejudiced

by any such alleged failure. The district court held Cobbins had failed to show

objections to his prior theft convictions by trial counsel would have changed the

outcome of this case because the convictions were for misdemeanor offenses

and dissimilar to the first-degree-murder charge Cobbins was facing here. We

agree with the district court’s conclusion. See State v. Parker, 747 N.W.2d 196,

210 (Iowa 2008) (finding that the risk of prejudicial impact of impeachment by

prior convictions is greater “when the prior convictions are for crimes that are

similar to the crime for which the defendant is on trial”). Furthermore, as noted
                                        11


above, we find the record contains clear overwhelming evidence of Cobbins’s

guilt. See Boose, 2014 WL 7343218, at *3. Therefore, we conclude Cobbins

has failed to prove a reasonable probability that, without any alleged errors by

trial counsel, “the result of the proceeding would have been different.” Strickland,

466 U.S. at 694. And he cannot show he was prejudiced by any alleged failure

of his trial counsel. See id.; see also Shanahan, 712 N.W.2d at 142.

       Accordingly, we affirm the district court’s denial of Cobbins’s PCR

application.

       AFFIRMED.
