                   IN THE COURT OF APPEALS OF IOWA

                             No. 3-1236 / 12-1986
                            Filed February 19, 2014

DENNIS RAY BROWN JR.,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      Dennis Ray Brown Jr. appeals from a district court judgment denying and

dismissing his application for postconviction relief. AFFIRMED.



      Susan Stockdale, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney

General, John P. Sarcone, County Attorney, and Stephanie Cox, Assistant

County Attorney, for appellee.



      Considered by Potterfield, P.J., Bower, J., and Miller, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
                                            2



MILLER, S.J.

           Dennis Ray Brown Jr. appeals from the district court judgment denying

and dismissing his application for postconviction relief. We affirm.

I.         BACKGROUND FACTS AND PROCEEDINGS

           As acknowledged in his brief on appeal, the relevant facts regarding

Brown’s criminal case are set forth in the district court’s postconviction ruling as

follows:

                   Brown was originally charged with two drug felonies.
           Eventually, the charges were amended to one charge of
           possession with intent to deliver more than five grams of
           methamphetamine, a class “B” felony, carrying a mandatory twenty-
           five year term of imprisonment. On the day of his trial, during jury
           selection, Brown accepted a plea offer from the State and entered a
           guilty plea to the lesser included “C” felony of possession with
           intent to deliver methamphetamine. That charge ordinarily carries a
           maximum potential sentence of ten years imprisonment. But
           because Brown has prior felony convictions he was subject to
           sentencing as a habitual offender and, on November 4, 2010, he
           was sentenced to an indeterminate term of incarceration not to
           exceed fifteen years.
                   Brown appealed his conviction to the Iowa Supreme Court
           but the appeal was dismissed because it was frivolous.

           On appeal Brown asserts:

                THE POSTCONVICTION COURT ERRED WHEN IT
            CONCLUDED MR. BROWN’S TRIAL ATTORNEY DID NOT
            NEED TO HAVE MR. BROWN’S MENTAL HEALTH EVALUATED
            PRIOR TO THE GUILTY PLEA.

     II.   SCOPE AND STANDARDS OF REVIEW

           Generally, we review an appeal from a denial of postconviction relief for

     the correction of errors at law. Lado v. State, 804 N.W.2d 248, 250 (Iowa

     2011); Goosman v. State, 764 N.W.2d 539, 541 (Iowa 2009). “Thus, we will

     affirm if the trial court’s findings of fact are supported by substantial evidence
                                         3



and the law was correctly applied.” Harrington v. State, 649 N.W.2d 509, 520

(Iowa 2003). However, when the applicant raises a constitutional claim as the

basis for postconviction relief, we review the claim de novo. Ennenga v. State,

812 N.W.2d 696, 701 (Iowa 2012). Our de novo review is thus made “‘In light of

the totality of the circumstances and the record upon which the postconviction

court’s rulings w[ere] made.’” Goosman, 764 N.W.2d at 541 (quoting Giles v.

State, 511 N.W.2d 622, 627 (Iowa 1994)).          In our de novo review we give

weight to the credibility findings made by the postconviction court. Cox v. State,

554 N.W.2d 712, 714 (Iowa Ct. App. 1996).

III.   MERITS

       As relevant to this appeal, in its postconviction ruling the district court

stated Brown “claims his guilty plea was involuntary because he was suffering

from a mental illness, or from the effects of medication, when he entered his

plea,” and “that his appointed counsel was ineffective for not having him

evaluated for mental illness before he entered his plea.”         Brown’s claim of

postconviction trial court error is thus that the court erred in failing to find that

his attorney in the underlying criminal case should have had him evaluated for

mental illness to determine whether he was competent to enter his guilty plea.

To determine whether the postconviction court erred we must analyze the

merits of Brown’s ineffective-assistance-of-counsel claim.

       To prove ineffective assistance, an applicant must show that (1) counsel

failed to perform an essential duty, and (2) prejudice resulted. Ennenga, 812

N.W.2d at 701; State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). Both
                                        4



elements must be proved by a preponderance of the evidence. Ledezma v.

State, 626 N.W.2d 134, 142 (Iowa 2001). We may affirm the postconviction

court’s rejection of an ineffective assistance claim if either element is lacking.

Anfinson v. State, 758 N.W.2d 496, 499 (Iowa 2008).

     To satisfy the first prong, failure to perform an essential duty, an applicant

must show that counsel’s representation “fell below an objective standard of

reasonableness,” Strickland v. Washington, 466 U.S. 668, 688. 104 S. Ct. 2052,

2064, 80 L. Ed. 2d 674, 693 (1984), and that counsel’s performance fell outside

the normal range of competency, State v. Dudley, 766 N.W.2d 606, 620 (Iowa

2009).   We begin with a presumption that counsel performed competently.

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. “‘Trial

counsel’s performance is measured objectively by determining whether

counsel’s assistance was reasonable, under prevailing professional norms,

considering all the circumstances.’” State v. Vance, 790 N.W.2d 775, 785 (Iowa

2010) (quoting State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010)).

     Brown alleges that at the time he entered his guilty plea he had a lengthy

history of schizophrenia and does not remember parts of the criminal

proceeding, and that his guilty plea was thus not knowingly, voluntarily, and

intelligently made. In his brief he asserts that “there must have been evidence

available to Mr. Brown’s attorney during his interactions with Mr. Brown that

should have led that attorney to question Mr. Brown’s competence to . . . plead

guilty.” He concludes that by not requesting a competency hearing his attorney

thus rendered ineffective assistance.
                                           5



         “A criminal defendant may not plead guilty unless he does so competently

    and intelligently.” Godinez v. Moran, 509 U.S. 389, 396, 113 S. Ct. 2680, 2685,

    125 L. Ed. 2d 321, 330 (1993). However, “[a] defendant is initially presumed to

    be competent, and the burden to establish the contrary should be on him; if the

    evidence is in equipoise the presumption should prevail.” State v. Pedersen,

    309 N.W.2d 490, 496 (Iowa 1981). Further, “when an applicant’s assertions

    concerning the knowing and intelligent nature of a guilty plea are directly

    contradicted by the record, the applicant bears a special burden to establish

    that the record is inaccurate.” Arnold v. State, 540 N.W.2d 243, 246 (Iowa

    1995).

         Brown testified at the postconviction hearing that he does not remember

    several events during his incarceration following his arrest and prior to and

    during his plea of guilty. These include whether he had a preliminary hearing,

    the date scheduled for his trial, pleading guilty to a reduced charge, and

    whether he received Haldol injections or any medical treatment while in jail.1

         Brown acknowledges, however, remembering his arrest, the original

    charge, having an attorney appointed, the attorney’s name, depositions being

    taken, that he had been continuously in custody since his arrest, that he had


1
   Although Brown asserts in his brief that “he was not treated for [his schizophrenia]
while incarcerated,” he in fact testified he could not remember whether he received such
treatment while in jail. The relevant questions and answers were as follow:
               Q. Were you getting Haldol injections in the Polk County jail? A.
        There was a lot of misunderstanding about my medication when I was in
        the Polk County jail. I don’t remember.
               ....
               Q. Okay. You don’t remember any kind of medical treatment
        while you were in the Polk County jail? A. Huh-uh.
               Q. Pardon me? A. No.
                                       6



never been hospitalized while in the custody of the Polk County jail, and that

one or more motions in arrest of judgment had been filed after his guilty plea.

     In ruling on Brown’s application the district court noted that the only

evidence that at the time of his guilty plea Brown was suffering from any mental

illness, the effects of any mental illness, or the effects of any medication, was

Brown’s own testimony.      The court noted that Brown had testified at the

postconviction hearing, as he had testified previously at a hearing on a motion

in arrest of judgment, that he did not remember the guilty plea proceeding. The

court stated it did not believe Brown’s testimony to that effect, but even if the

testimony were accepted as true such a lack of memory did not establish he

was suffering from mental illness, its effects, or medication at the time of his

guilty plea. The court found there was no basis upon which to conclude his

guilty plea was not knowing, voluntary, and intelligent, and there was thus no

merit to his claim his attorney rendered ineffective assistance by not having his

competency evaluated.

     Upon our de novo review we agree with the analysis and conclusions of

the district court’s well-reasoned decision.     Brown’s obviously self-serving

testimony is wholly unsupported by any other evidence.         He presented no

testimony or records from a health care provider, no testimony from or records

of the Polk County jail, and no testimony from any other person who might have

some knowledge of his alleged mental illness or medication he might or might

not have been given while at the Polk County jail. Although Brown asserts

there must have been evidence available to his defense attorney that should
                                        7



have led the attorney to have him evaluated, he did not present testimony from

that attorney at the postconviction hearing and does not indicate what the

claimed evidence might have been.

     “Relevant factors in determining whether due process requires an inquiry

as to competency include (1) defendant’s irrational behavior, (2) demeanor at

trial, and (3) any prior medical opinion on competency to stand trial.” State v.

Aswegan, 331 N.W.2d 93, 96 (Iowa 1983). There is no evidence of irrational

behavior by Brown. The record of the guilty plea proceeding demonstrates that

the district court engaged in a lengthy, detailed, and thorough colloquy with

Brown; shows that Brown was attentive and responded politely and

appropriately to the court’s inquiries and explanations; and gives no indication

of any inappropriate demeanor or lack of understanding on Brown’s part. There

is no evidence, other than Brown’s unsupported testimony, of any prior medical

opinion, or even of any non-medical opinion, that Brown lacked competence to

understand the proceeding and enter a valid guilty plea. Nothing in the briefs or

appendix presented on appeal indicates that Brown ever told his defense

attorney that he had, or had a history of, mental illness.

     We find no basis for concluding that Brown’s defense attorney breached

an essential duty by not requesting a competency evaluation. We need not

address the second prong of an ineffective-assistance claim. Anfinson, 758

N.W.2d at 499.
                                   8



IV.   CONCLUSION

      We affirm the district court’s dismissal of Brown’s application for

postconviction relief.

      AFFIRMED.
