                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2101
                             Filed October 12, 2016


WENDELL K. HARRINGTON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



      Wendell Harrington appeals from the denial of his application for

postconviction relief. AFFIRMED.




      Christine E. Branstad of Branstad Law, P.L.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
                                            2


DANILSON, Chief Judge.

          Wendell Harrington appeals from the denial of his application for

postconviction relief (PCR). Harrington asserts his original trial counsel (trial

counsel) and his counsel in the plea proceedings on remand (remand counsel)

rendered ineffective assistance.        Harrington also asserts PCR counsel was

ineffective in this second PCR application in failing to enter necessary evidence

into the record and failing to raise potential claims.          Because we find no

ineffective assistance by trial counsel, remand counsel, or PCR counsel, we

affirm.

I. Background Facts and Proceedings.

          This matter arose when Harrington was charged on February 21, 2003,

with five counts1 resulting from burglaries and vehicle thefts occurring in a

residential area of Des Moines.         In their efforts to obtain evidence against

Harrington for these crimes, officers executed a search warrant on a home they

believed to be Harrington’s primary residence.

          After a jury trial held May 5 and 6, 2003, Harrington was found guilty on all

counts charged and sentenced to a total indeterminate term of thirty years.

However, those convictions were challenged on appeal, and the case was

reversed and remanded for new trial. Prior to the retrial, which was scheduled

for August 8, 2005, Harrington filed a pro se motion to suppress evidence


1
  Harrington was charged with ongoing criminal conduct, in violation of Iowa Code
sections 706A.2(1)(d) and 902.8 (2003); second-degree theft, in violation of Iowa Code
sections 714.1(4) and 714.2(2); two counts of third-degree burglary, in violation of Iowa
Code sections 713.1 and 713.6A; and second-degree burglary, in violation of Iowa Code
sections 713.1 and 713.5(2). Harrington was charged as a habitual offender with
respect to the ongoing-criminal-conduct charge and one of the third-degree burglary
charges.
                                          3


obtained as a result of a search warrant, claiming the search warrant contained

misleading statements. At an August 4, 2005 pretrial conference, Harrington’s

remand counsel expressed his intent to argue the motion. Remand counsel also

explained he would not be prepared for trial on August 8 and noted the court

would need to make a determination as to good cause for waiving speedy trial. 2

       The court found good cause existed to waive speedy trial and continue the

trial date due to remand counsel’s need to prepare, Harrington’s failed plea

negotiations, and Harrington’s desire to have his pro se pretrial motions

addressed. On August 8, 2005, Harrington filed a pro se motion to dismiss due

to the speedy-trial violation.

       On September 2, 2005, before the pretrial motions were heard, Harrington

pled guilty to one count of second-degree theft and one count of third-degree

burglary. The State agreed to dismiss the remaining charges. As part of the

plea agreement, Harrington was sentenced to consecutive sentences for a total

indeterminate sentence of ten years, with the sentences suspended, and

Harrington was placed on probation for two years. Shortly after the sentence

was imposed, however, Harrington violated the terms of his probation and his

probation was revoked.

       Harrington filed his first PCR application on June 8, 2006, contending

remand counsel was ineffective for failing to request dismissal of the case due to

the speedy-trial violation. The PCR court found Harrington had not preserved

error by failing to file a motion in arrest of judgment and had waived the speedy-


2
 Remand counsel failed to assert at the time of the August 4 pretrial conference there
was already a speedy-trial violation.
                                              4


trial claim by pleading guilty. Harrington’s appeal from the dismissal of his PCR

application was dismissed as frivolous by our supreme court.

       Harrington filed this PCR action on June 11, 2012,3 asserting the first PCR

counsel was ineffective in failing to assert a claim based on remand counsel’s

failure to argue for suppression of evidence obtained utilizing a search warrant

that contained misrepresentations.                The second PCR court dismissed

Harrington’s application in a July 24, 2014 order. Harrington filed a motion to

enlarge on August 8, 2014, which was denied.

       Harrington now appeals claiming trial counsel4 and remand counsel were

ineffective based on the failure to seek a Franks5 hearing to suppress evidence

obtained from the search warrant.6           Harrington also asserts on appeal PCR

counsel was ineffective in failing to obtain testimony from remand counsel to

support the Franks-challenge ineffectiveness claim and in failing to bring a claim

based on remand counsel’s failure to request dismissal of the case due to the

speedy-trial violation. Harrington contends remand counsel and PCR counsel’s

3
  Harrington relies on State v. Carroll, 767 N.W.2d 638 (Iowa 2009), to circumvent the
three-year statute of limitations as provided in Iowa Code section 822.3. Harrington
argues Carroll constitutes a new ground of law allowing him to raise the claims asserted
in this PCR action within three years of the Carroll decision. Carroll allows a defendant
to challenge a guilty plea on the basis the plea was not voluntary or intelligent due to
incompetent advice received from counsel, despite the general rule that a defendant’s
guilty plea waives all defenses and objections not intrinsic to the plea.
Carroll, 767 N.W.2d at 641-42.
4
  Because remand counsel had the opportunity to argue the claims raised by Harrington,
Harrington cannot establish prejudice as to trial counsel, and consequently, trial counsel
cannot be found to have rendered ineffective assistance. See State v. Stephen, No. 10-
0286, 2011 WL 5393453, at * 9 (Iowa Ct. App. Nov. 9, 2011) (“Because [original trial
counsel] was granted permission to withdraw, and any and all of these matters could
have been conducted by subsequently appointed counsel, [the defendant] cannot
establish prejudice with regard to his [ineffective-assistance] claims against [original trial
counsel.”).
5
  See Franks v. Delaware, 438 U.S. 154 (1978).
6
  This appeal was delayed by extensions requested by both parties.
                                             5


ineffective assistance rose to the level of structural error. Harrington argues the

PCR court erred in determining trial counsel and remand counsel were not

ineffective and requests limited remand to the PCR court to rectify PCR counsel’s

ineffective assistance.7

       The State contends that pursuant to Iowa Code sections 822.3 and 822.8,

Harrington has waived any allegations as to a speedy-trial violation because that

issue was not raised in the second PCR application. Regardless of any waiver

determination, we can resolve Harrington’s claims on the merits.8

II. Standard of Review.

       Generally, we review postconviction relief proceedings for correction of

errors at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). “However,

when the applicant asserts claims of a constitutional nature, our review is de

novo. Thus, we review claims of ineffective assistance of counsel de novo.” Id.

(citation omitted).




7
  We note Harrington has filed a pro se reply brief on appeal. However, “[a]n issue
cannot be asserted for the first time in a reply brief.” Polk Cty. v. Davis, 525 N.W.2d
434, 435 (Iowa 1994); see also State v. Olsen, 794 N.W.2d 285, 287 n.1 (Iowa 2011)
(“Because [the appellant] failed to raise this issue in his original brief, the issue is not
preserved for our review.”). Thus, we will not consider issues asserted in the reply brief
that were not raised first in the brief on appeal.
8
  Harrington also contends on appeal both trial counsel and remand counsel were
ineffective in failing to file a motion to suppress because the search warrant in question
was not supported by probable cause. This issue was not raised in Harrington’s PCR
application or in the motions to enlarge, and it was never ruled on by the PCR court. We
therefore will not consider the probable cause argument on appeal. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate
review that issues must ordinarily be both raised and decided by the district court before
we will decide them on appeal.”).
                                             6


III. Analysis.

          “To prevail on a claim of ineffective assistance of counsel, a claimant

must satisfy the Strickland[9] test by showing ‘(1) counsel failed to perform an

essential duty; and (2) prejudice resulted.’” State v. Clay, 824 N.W.2d 488, 495

(Iowa 2012) (internal citation omitted). Harrington must show both elements to

establish ineffective-assistance, and we may reject the claim if Harrington has

failed to prove either prong. See id.

         A. Ineffective Assistance.     As already stated, in order to successfully

establish an       ineffective-assistance    claim, Harrington   must show   by a

preponderance of the evidence “counsel failed to perform an essential duty.” Id.

In other words, Harrington must show counsel made “such serious errors that he

or she was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Id. (citations omitted).

         Harrington’s ineffective-assistance claims all revolve around the two

issues raised concerning his motion to suppress evidence from the search

warrant premised upon a Franks challenge and motion to dismiss for speedy-trial

violation. Because both of these arguments are meritless, Harrington cannot

show any counsel in these proceedings were ineffective in failing to pursue them.

                 1. Motion to Suppress. First, Harrington has not shown the Franks

challenge would have been successful.

         We use the Franks standard when a defendant challenges the
         veracity of a search warrant application. See Franks v. Delaware,
         438 U.S. 154 (1978). In a Franks hearing, the court determines
         “whether the affiant was purposefully untruthful with regard to a
         material fact in his application for the warrant, or acted with

9
    Strickland v. Washington, 466 U.S. 668, 687 (1984).
                                          7

         reckless disregard for the truth.” State v. Niehaus, 452 N.W.2d
         184, 186 (Iowa 1990).         If the affiant consciously falsified
         information, or recklessly disregarded the truth in the application,
         the offending material must be excised when considering whether
         probable cause existed to obtain he warrant. Id. at 186-87.

State v. Pate, No. 11-0971, 2012 WL 3860450, at *6 (Iowa Ct. App. Sep. 6,

2012).

         Harrington contends the statements in the search warrant application—

asserting the residence subject to the request was “the primary residence of

Wendell Harrington,” and that Harrington was “observed leaving [the] residence

. . . by Officer Schinkel and Little”—were purposefully untruthful.      Harrington

essentially claims the officers did not have sufficient knowledge the residence

was his primary residence and included the statements in the search warrant

application nonetheless.

         In deposition, the detective who applied for the search warrant explained

he believed the residence was Harrington’s primary residence because the

stolen vehicle—which Harrington was later caught driving a short distance from

the residence—was observed parked outside the home.             The detective also

stated he had intelligence information from other officers or informants to support

the finding that Harrington resided in the home. We agree with the PCR court

that the statements contained in the search warrant were “not a violation of the

Franks standard because [they were] not deliberately false or a reckless

disregard for the truth.” Thus, remand counsel was not ineffective in failing to

more thoroughly investigate or pursue the motion to suppress based on a Franks
                                           8


challenge, and PCR counsel was not ineffective in failing to present additional

evidence related to this claim.10

              2. Motion to Dismiss.      Harrington also contends his speedy-trial

rights were violated and, thus, his plea was neither voluntarily nor intelligently

entered.   He asserts his counsel in the instant PCR action was ineffective

because counsel did not address this issue by presenting evidence or argument

and did not obtain a ruling on the issue by the PCR court. Harrington seeks a

limited remand to present evidence and to obtain a ruling because otherwise

such a claim will be time-barred.

       We acknowledge our supreme court’s decision in Carroll, 767 N.W.2d at

643-44, wherein the court concluded claims of ineffective assistance of counsel

arising from a failure to investigate or failure to file a meritorious pretrial motion

survive the entry of a guilty plea. Carroll explains that if counsel does not provide

competent advice leading up to the entry of the guilty plea, the guilty plea is

involuntary and unintelligent.

       Our supreme court has also stated that counsel must “ensure that the

State abides by the time restrictions established by Iowa Rule of Criminal

Procedure 2.33.” State v. Utter, 803 N.W.2d 647, 653 (Iowa 2011).11 “Counsel’s

failure to do so amounts to a failure to perform an essential duty.” Id.


10
   We also note even if the Franks challenge was successful and evidence obtained from
the search warrant was suppressed, the remaining evidence may still have supported
Harrington’s convictions for second-degree theft and third-degree burglary. Harrington
was stopped driving a stolen vehicle and stated at the sentencing hearing he obtained
the keys to the stolen vehicle from inside the residence he admitted to entering without
permission.
11
   Iowa Rule of Criminal Procedure 2.33(2)(b) provides,
        If a defendant indicted for a public offense has not waived the defendant’s
        right to a speedy trial the defendant must be brought to trial within 90
                                            9

       Unlike in Carroll, here a pretrial motion to dismiss for violation of

Harrington’s speedy trial rights was filed prior to the entry of the guilty plea, albeit

by the defendant. The record also reflects that remand counsel filed a motion, on

June 30, 2005, with Harrington’s motion to suppress attached, requesting a

hearing on Harrington’s motions.            Remand counsel also expressed his

willingness to argue Harrington’s motions on his behalf in a pretrial hearing. We

acknowledge the motion to dismiss was subsequently filed but clearly remand

counsel was willing to argue any of Harrington’s motions.

       We also note at the outset of the guilty plea proceeding, remand counsel

specifically brought to Harrington’s attention his pretrial motions including his

motion to dismiss due to a speedy-trial violation and the effect of Harrington’s

guilty plea on his pretrial motions:

               And, Wendell, you know that in order to go forward with this
       in any guilty plea you have to give up certain rights. This morning
       you are going to give up the right to a speedy trial and many other
       rights. But what’s important to note right now is that you may have
       some merit, most particularly, I think to the speedy trial violation,
       but you are willing to give up the right to litigate that speedy trial
       violation in order to take the benefit of this plea bargain which the
       government has offered and which you have accepted; is that
       correct?

To this question, Harrington answered, “That would be correct.”                  Remand

counsel then asked Harrington, “Moreover, you are willing to give up the

opportunity to litigate any and all motions which you have filed [in] reference [to]

this case which have yet to be ruled upon; is that correct?”                  Harrington

answered, “That’s also correct.”



       days after the indictment is found or the court must order the indictment to
       be dismissed unless good cause to the contrary be shown.
                                            10


          The court then revisited the issue during the plea colloquy:

                 And your attorney, I think, covered in good detail the fact that
          any of the pending motions that you have filed will never be ruled
          upon if your pleas are accepted. Any possible defenses that you
          might have had will never be presented if these pleas are accepted.
          Do you understand?

Harrington responded, “Yes, sir, Your Honor, yes, sir.”

          These facts are quite different than the facts in Carroll. In Carroll, the

defendant entered a guilty plea not knowing a successful motion to suppress

could have been filed. Carroll, 767 N.W.2d at 640. Here, Harrington knew of his

right to a speedy trial and even filed his own motion to dismiss. He knew his

remand attorney would argue his motions. He was also informed before his plea

colloquy of his attorney’s opinion that the motion to dismiss “may have some

merit.” Notwithstanding this knowledge, Harrington chose to enter his pleas of

guilty.

          When the efforts to accept Harrington’s pleas failed at the August 4, 2005

hearing, remand counsel indicated that he would not be prepared to proceed to

trial on the August 8, 2005 trial date.          Remand counsel asked the court to

determine if there was good cause to set a later trial date as Harrington

demanded his right to speedy trial. The district court granted the continuance of

the trial, finding good cause because the parties had been attempting to

negotiate a plea agreement rather than prepare for trial, but the negotiations had

failed; there remained outstanding motions the defendant wanted the court to

consider; the factual and legal issues presented were complex; and both counsel

had scheduled vacations and would be unavailable for the scheduled trial date.

In fact, due to Harrington’s decision not to proceed with an expected plea
                                         11


pursuant to an agreement on August 4, 2005, his attorney noted he would need

ninety days to prepare for trial.

       The principles related to a defendant’s right to speedy trial and the good

cause exception were recently recited in State v. Taylor, 881 N.W.2d 72, 76-78

(Iowa 2016), and need not be recited here. Suffice it to say, the State has the

burden to show good cause, and there is a one-factor test: “the reason for the

delay.” Id. at 77.

       “Negotiations between the prosecution, defense counsel and defendant

toward obtaining a guilty plea may constitute good cause for delaying trial of

defendants.” State v. LaMar, 224 N.W.2d 252, 254 (Iowa 1974); see also State

v. Miller, 637 N.W.2d 201, 204-05 (Iowa 2001) (noting resolution of a late-filed

pending motion to suppress has been held to justify continuing a trial to a date

outside the ninety-day deadline). Although the ninety days after the entry of the

procedendo expired on July 27, 2005, clearly remand counsel would not have

been prepared for trial for any date earlier than August 8 because he wasn’t

prepared for the August 8 trial date.      Moreover, the plea negotiations were

ongoing since at least mid-July, and did ultimately lead to Harrington’s pleas

being accepted.

       The record does not support the contention Harrington’s guilty plea was

involuntarily or unintelligently entered due to counsel’s failure to raise the Franks

or speedy-trial-violation issues. Harrington was aware of his rights by filing his

own pretrial motions and knew his attorney would argue the motions.              His

attorney informed him before tendering the pleas that, in his opinion, the motion

to dismiss may have some merit. Notwithstanding this knowledge, Harrington
                                             12


voluntarily chose to tender two pleas of guilty. “In order to show waiver, there

must be a showing of ‘an intentional relinquishment or abandonment of a known

right or privilege.’” Taylor, 881 N.W.2d at 78 (quoting Johnson v. Zerbst, 304

U.S. 458, 464 (1938)). Clearly, Harrington intentionally waived his right to be

heard on his motion to dismiss, a known right despite his attorney’s opinion that it

may have merit.12 Counsel did not breach any duty.

       Even if we could find a breach of duty, Harrington suffered no prejudice

because there was good cause to extend the trial date past the speedy-trial

deadline. The parties had been in the midst of plea bargaining since the middle

of July, and remand counsel had yet to prepare for trial as of August 4, 2005.

Accordingly, trial counsel, remand counsel, and PCR counsel did not render

ineffective assistance because they had no obligation to pursue meritless claims.

See State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003) (“[C]ounsel is not

incompetent for failing to pursue a meritless issue.”).

       B. Structural Error. Harrington also contends remand counsel and PCR

counsel’s ineffective assistance amounted to structural error. Structural error

occurs when “(1) counsel is completely denied, actually or constructively, at a

crucial stage of the proceeding; (2) where counsel does not place the

prosecution’s case against meaningful adversarial testing; or (3) where

surrounding circumstances justify a presumption of ineffectiveness.”               Lado v.




12
    Although the terms of the plea agreement did not prohibit the State from filing other
charges, Harrington may have believed the entry of the pleas would have foreclosed the
filing of additional charges as the affidavit to the application of the search warrant states
that Harrington admitted to committing over seventy residential burglaries.
                                         13

State, 804 N.W.2d 248, 252 (Iowa 2011). In Dockery v. State, this court found

structural error by PCR counsel had occurred where:

       [the PCR applicant’s] case languished in the district court while the
       only ground for relief pursued by counsel—the motion to reconsider
       his sentence—was unrelated to the PCR proceeding. [The PCR
       applicant] was left to file his PCR application pro se, and counsel
       failed to amend or supplement the application in the face of the
       State’s pursuit of dismissal on the grounds the applicant set forth
       insufficient facts.

No. 13-2067, 2016 WL 351251, at *4 (Iowa Ct. App. Jan. 27, 2016). Upon

these facts, this court held the PCR applicant was denied meaningful

representation in the PCR action. Id.

       In this case, remand counsel was not obligated to file amended

motions or argue the meritless issues raised in the pro se pretrial motions.

Still, remand counsel stated his intent to argue the motions. Before the

pretrial motions were heard, remand counsel negotiated a good plea

agreement that counsel found to be acceptable and with which Harrington

agreed. Remand counsel provided competent representation and did not

exhibit the type of conduct categorized as structural error.

       PCR counsel filed an amended PCR application, represented

Harrington at the PCR trial, presented evidence in addition to Harrington’s

testimony in support of the PCR application, and argued all viable claims.

PCR counsel’s representation in this matter clearly also did not constitute

structural error.

       IV. Conclusion.

       Because we find trial counsel, remand counsel, and PCR counsel were

not ineffective in their representation of Harrington, we affirm the PCR court’s
                                14


dismissal of this second PCR action and determine limited remand is

unwarranted in this matter.

      AFFIRMED.
