                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0723
                               Filed April 4, 2018


MICHAEL LYNN HEARD SR.,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Greene County, Steven J. Oeth,

Judge.



      A postconviction applicant appeals the denial of relief from his convictions

and sentences for cocaine delivery, theft, and criminal mischief. AFFIRMED.




      Joseph C. Glazebrook of Glazebrook & Hurd, LLP, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Zachary L. Miller, Assistant

Attorney General, for appellee State.




      Considered by Doyle, P.J., and Tabor and McDonald, JJ.
                                          2


TABOR, Judge.

       Michael Heard Sr. appeals the dismissal of his postconviction relief (PCR)

application. He raises several issues related to his sentencing. But because he

has discharged his sentence, those issues are now moot. So Heard is left with a

single viable claim—had trial counsel fully investigated Heard’s mental health and

better informed Heard about a diminished capacity defense, Heard would have

insisted on going to trial. Deferring to the district court’s credibility findings, we

reject Heard’s allegation of ineffective assistance of counsel.

       In October 2010, Heard pleaded guilty to delivery of cocaine, a class “C”

felony, in violation of Iowa Code section 124.401(1)(c)(2)(b) (2010). The district

court sentenced Heard to an indeterminate ten-year suspended sentence and

placed him on probation for five years. After Heard violated his probation in 2012,

the district court imposed the original ten-year sentence. But after reconsideration,

the court again released Heard on a five-year probation term.

       Then in 2014, Heard violated probation and was charged with second-

degree criminal mischief, domestic abuse assault, and fifth-degree theft. To avoid

the impact of a domestic-abuse-assault conviction, Heard agreed to plead guilty to

fifth-degree theft, in violation of Iowa Code section 714.2(5) and third-degree

criminal mischief, in violation of Iowa Code section 716.1, in return for the State’s

dismissal of the assault charge. At the combined sentencing and probation-

revocation hearing, the district court imposed a thirty-day term for theft and a two-

year term for criminal mischief concurrent to his indeterminate ten-year sentence

for drug delivery.
                                         3


      Heard sought postconviction relief (PCR) alleging his trial attorney was

ineffective in three ways: (1) failing to investigate a diminished-capacity defense

based on Heard’s diagnoses for mood disorder and major panic disorder, (2) failing

to request an updated presentence investigation (PSI) report, and (3) failing to

present evidence of Heard’s impairments as mitigating sentencing factors. During

the PCR hearing Heard also complained counsel permitted him to plead guilty

even though Heard did not understand the charges or their consequences. Heard

alleged that had counsel performed adequately, he would have refused the plea

agreement and demanded a trial. Heard’s counsel, Joey Hoover, testified. Heard

also took the stand, as did his wife and son.

      The PCR court decided attorney Hoover performed competently and

dismissed Heard’s PCR application. On appeal, Heard renews his claims that

Hoover failed to adequately investigate a possible diminished-capacity defense,

failed to present evidence of Heard’s mental health at sentencing, failed to request

an updated PSI, and the cumulative effect of these failures resulted in prejudice.

Heard also alleges he received constitutionally deficient representation from his

PCR trial counsel because that attorney failed to challenge the district court’s

sentencing calculation.

      While we generally review PCR proceedings for legal error, we review

ineffective-assistance claims de novo due to their constitutional nature.      See

Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). Because the district court

had the chance to see the witnesses in person, we give weight to its conclusions

regarding their credibility. See id. To show he received ineffective assistance,

Heard must prove by a preponderance of the evidence that his attorneys failed to
                                              4

perform an essential duty and prejudice resulted. See State v. Straw, 708 N.W.2d

128, 133 (Iowa 2006).

       The bulk of Heard’s appellate claims relate to sentencing. But, as Heard

concedes, he discharged his sentence on February 8, 2017.1 The State argues

the sentencing claims are moot. An issue is moot “if it no longer presents a

justiciable controversy because the issues involved are academic or nonexistent.”

Homan v. Branstad, 864 N.W.2d 321, 328 (Iowa 2015) (quoting Iowa Bankers

Ass’n v. Iowa Credit Union Dep’t, 335 N.W.2d 439, 442 (Iowa 1983)). When

determining if an issue is moot, we question if “an opinion would be of force and

effect with regard to the underlying controversy.” Id. (quoting Women Aware v.

Reagan, 331 N.W.2d 88, 92 (Iowa 1983)). Because Heard already discharged his

sentences, an opinion would be of no force and effect.2 Accordingly, we dismiss

those claims as moot. See State v. Wilson, 234 N.W.2d 140, 141 (Iowa 1975)

(determining challenge to sentencing condition was moot because the sentence

was already discharged).

       Heard’s only surviving claim alleges attorney Hoover failed to adequately

investigate Heard’s mental-health issues as possible support for a diminished-

capacity defense. Heard claims had Hoover more fully developed the diminished-



1
  “Matters that are technically outside the record may be submitted in order to establish or
counter a claim of mootness. We consider matters that have transpired during the appeal
for this limited purpose.” In re L.H., 480 N.W.2d 43, 45 (Iowa 1992).
2
   Heard’s sentencing challenges do not present issues warranting review in spite of
mootness. See State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002) (noting
moot claims can be considered after considering the “(1) the private or public nature of the
issue; (2) the desirability of an authoritative adjudication to guide public officials in their
future conduct; (3) the likelihood of the recurrence of the issue; and (4) the likelihood the
issue will recur yet evade appellate review” (citation omitted)). Heard did not file a reply
brief to address the mootness issue.
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capacity defense and explained it to him, he would have refused the plea

agreement and insisted on going to trial. To prevail, Heard must show Hoover

failed to meet the standard of a reasonably competent attorney. See Ledezma,

626 N.W.2d at 142. We begin with an assumption Hoover performed competently

and require Heard to show otherwise. See id.

       Heard did not prove Hoover’s representation fell below reasonable

competency. Hoover testified he reviewed a psychological evaluation of Heard in

preparation for a diminished-capacity defense, which would have negated the

specific intent elements of the offenses charged. Hoover also testified he advised

his client about the pros and cons of accepting the proposed plea agreement

versus raising a diminished-capacity defense at trial. Specifically Hoover warned

Heard that juries “tend to not like that defense.” Hoover used a recent high-profile

Iowa case to illustrate his point.       But Hoover did not suggest a jury would

necessarily reject the defense in Heard’s case. Hoover testified had Heard opted

for a trial, he would have presented the diminished-capacity defense. In support

of the defense, Hoover intended to call, and in fact had subpoenaed, the

psychologist who drafted Heard’s evaluation. Hoover testified he was “confident”

Heard understood the consequences of the plea agreement or the attorney “would

not have allowed the plea to go forward.” In his testimony, Heard disagreed with

his attorney’s recollection of events.

       The PCR court gave credence to attorney Hoover’s testimony, and we defer

to that credibility finding.   See Ledezma, 626 N.W.2d at 141.        The attorney

adequately investigated a diminished-capacity defense and provided Heard an

honest assessment of its chances of success. Heard made an informed decision
                                         6


to “enter pleas and probation violation admissions.” On this record, Heard cannot

to show Hoover failed to perform an essential duty.3 See id. at 142.

       AFFIRMED.




3
 Heard also argues he received ineffective assistance due to the cumulative impact of
counsel’s omissions. But because only one issue is not moot, there are not claims to
consider in aggregate.
