                    IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0243
                               Filed January 11, 2017


HUBERT TODD, JR.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,

Judge.



      A defendant appeals the denial of his application for postconviction relief.

AFFIRMED.




      Joel A. Walker of Law Office of Joel Walker, Davenport, for appellant.

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

General, for appellee State.




      Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.

I. Background Facts and Proceedings.

       On March 5, 2010, the State charged Hubert Todd with simple domestic

assault, in violation of Iowa Code section 708.2A.2 (2009), and fifth-degree

criminal mischief, in violation of Iowa Code section 716.6. At the initial court

appearance on March 5, the court appointed the public defender’s office to

represent Todd; however, due to a conflict of interest, the public defender’s office

declined the appointment and a new attorney was appointed.

       At the initial appearance, the court informed Todd that if he wished to

invoke his right to a jury trial, he needed to do so within ten days of that date,

which made the deadline March 15. Todd and his appointed counsel had their

first consultation on March 17.

       No jury demand was ever made, and Todd was convicted on both counts

at a bench trial before a magistrate on October 29, 2010.1 The court sentenced

him to seven days in jail with all but two days suspended and ordered Todd to

attend a batterer’s education program.

       Todd was granted discretionary review from the simple misdemeanor

convictions and asserted an ineffective-assistance-of-counsel claim, alleging his

counsel failed to advise him of his right to a jury trial and also alleging his

attorney failed to file a jury demand despite Todd’s claimed request for one. Our


1
   The record before us indicates Todd was convicted of fifth-degree criminal mischief;
however, the opinion rendered in his appeal by discretionary review indicates the
conviction was for third-degree criminal mischief, but also states the crime was a simple
misdemeanor. See State v. Todd, No. 11-1958, 2014 WL 465822, at *1 (Iowa Ct. App.
Feb. 5, 2014); compare Iowa Code § 716.5(2) (“Criminal mischief in the third degree is
an aggravated misdeameanor.”), with Iowa Code § 716.6(2) (“Criminal mischief in the
fifth degree is a simple misdemeanor.”).
                                          3


court affirmed his conviction, finding sufficient evidence, and preserved his

ineffective-assistance claim concerning the jury-trial demand for a possible

postconviction relief (PCR) proceeding.

       Todd then filed an application for PCR on August 7, 2015. He argued his

trial counsel rendered ineffective assistance by failing to file a jury-trial demand

prior to the deadline, thus depriving him of his right to trial by jury. Although he

initially claimed he told his attorney he wanted a jury trial, at the PCR proceeding,

he changed his position and indicated that he told someone at the public

defender’s office over the phone. The court found this testimony to be a “recent

fabrication” and found Todd “never stated to anyone that he wanted a jury trial

until after his conviction was on appeal and neither his trial attorney nor the

public defender’s office were ineffective for failing to demand one.” Todd also

conceded at the postconviction hearing that the magistrate advised him at his

initial appearance of his right to a jury trial and the need to make a written

demand.

       Following the denial of his application, Todd appeals.

II. Standard of Review.

       “Postconviction proceedings are law actions ordinarily reviewed for errors

at law.” Bagley v. State, 596 N.W.2d 893, 895 (Iowa 1999).

       We review claims of ineffective assistance of counsel de novo.           See

Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). To prevail on a claim of

ineffective assistance of counsel, Todd must prove by a preponderance of the

evidence (1) his attorney failed to perform an essential duty and (2) prejudice

resulted from the failure. See State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa
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2011). Todd’s claim will fail if either element is lacking. See State v. Ambrose,

861 N.W.2d 550, 556 (Iowa 2015). Todd must show “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” See Strickland v. Washington, 466 U.S. 668, 694 (1984).

“A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id.

III. Discussion.

       In order to maintain a claim of ineffective assistance of counsel for

postconviction review, an applicant must make a minimal showing by which this

court can assess the viability of the claim. See State v. Wagner, 410 N.W.2d

207, 215 (Iowa 1987). Todd has not made any such showing here. He has not

shown how a jury trial would have changed the resulting guilty verdict. See id.

       Without proof he was prejudiced, Todd’s claim cannot stand.             See

Ambrose, 861 N.W.2d at 556. Therefore, we need not consider the remaining

element.   See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015) (“If we

conclude a claimant has failed to establish either of these elements, we need not

address the remaining element.”).

       Based on the foregoing, we affirm the district court’s denial of Todd’s

application for PCR.

       AFFIRMED.
