                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1988
                             Filed February 6, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANDRE LESURE JOHNSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Rustin T. Davenport,

Judge.



      Andre    Johnson     appeals   his   conviction   for   first-degree   burglary.

AFFIRMED.



      Denise M. Gonyea of McKelvie Law Office, Grinnell, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Heard by Doyle, P.J., and Mullins and McDonald, JJ.
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McDONALD, Judge.

       Andre Johnson was convicted of burglary in the first degree, in violation of

Iowa Code sections 713.1 and 713.3 (2017). The district court sentenced Johnson

to an indeterminate term of incarceration not to exceed twenty-five years. In this

direct appeal, Johnson asserts several clams of error: (1) his counsel provided

constitutionally deficient representation in several respects; (2) the district court

erred in denying his motion for new trial; (3) the district court abused its discretion

in imposing sentence; and (4) his sentence is unconstitutional.

                                          I.

       This case arises out of a residential burglary in Charles City. Johnson and

the State have very different accounts of what happened on the night in question.

       According to Johnson, he and his girlfriend were visiting some friends in

Charles City, including his friend Michael Jackson. While Johnson was with

Jackson, they met up with Deangelo Hawkins. The three men wanted to purchase

marijuana. Hawkins volunteered he knew a dealer—his childhood friend, Jamison

Zirbel. Johnson, Jackson, and Hawkins went to Zirbel’s house. In addition to

wanting to purchase marijuana, Hawkins believed someone at Zirbel’s house had

his cell phone. When the three men arrived at Zirbel’s house, Hawkins went up to

the door while Johnson and Jackson hung back. Eventually they joined Hawkins

in the house.

       According to Johnson, another man, Garrett Tegtmeier, was present when

Johnson entered the home. Hawkins asked about his phone, and Tegtmeier

grabbed for his waistband to pull out a gun. Johnson shoved Tegtmeier into a

refrigerator, and Jackson locked the entry door and grabbed the gun from
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Tegtmeier. Then Johnson and Jackson ran upstairs and went out a window and

onto the roof. Jackson was still in possession of the gun, and he dropped it off the

roof. While on the roof, Johnson heard a scuffle inside. Johnson and Jackson

climbed back into the house. Once inside, Johnson encountered Enrique Bor, a

resident of the house. Bor exited the home with Johnson, Hawkins, and Jackson.

       As will be discussed in more detail below, Johnson’s version of events is

not credible. According to the State’s evidence, on the day in question, Bor, Zirbel,

and Tegtmeier were hanging out at Zirbel and Bor’s house. As the evening wound

down, Zirbel set out with Tegtmeier to walk Tegtmeier to his home. Zirbel did not

lock the entry door because he planned on returning home soon. Bor remained at

the house and relaxed in his room upstairs.

       Shortly after Zirbel and Tegtmeier left, Bor heard loud knocking at the door.

He did not answer. Then he heard people enter the house. Startled, Bor hid in

the back of his closet and called Zirbel to see if anyone was supposed to come

over. When Zirbel confirmed no one was supposed to come over, Bor called 911.

By this time, the intruders were searching around the house. Bor whispered his

address to the dispatcher and told the dispatcher there were people in the house.

Bor could hear the intruders talking about Bor’s PlayStation and other things in

Bor’s room. While Bor was still on the phone with the dispatcher, someone opened

the closet door. Bor hid himself and was not discovered. Bor remained on an

open line with the 911 dispatcher.

       After receiving Bor’s call, Zirbel and Tegtmeier went back to the house.

Upon arrival, they found the entry door was deadbolted. The two kicked in the

door and ran upstairs. When they reached the second floor, they discovered
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Hawkins, Johnson, and Jackson. Zirbel was either pushed or fell down the stairs.

After falling down the stairs, he sought refuge in the garage. Hawkins, Johnson,

and Jackson questioned Tegtmeier while they beat him with a tire iron and

searched his pockets. Bor was still in the closet and connected to 911. On the

recording of the phone call, multiple voices can be heard in addition to Tegtmeier’s

voice. On the recording, Tegtmeier can be heard begging his assailants to stop.

After beating Tegtmeier, the men threw him down the stairs.

       Police quickly responded to the home. When they arrived, Tegtmeier and

Zirbel ran to the police. Unsure if the men were the perpetrators or the victims, the

police ordered them to lie the ground. Officers then saw Johnson and Jackson exit

onto the roof of the house. They ordered Johnson and Jackson to surrender. The

men went back inside the home and could be observed going up and down the

stairs. They did not come out for several minutes. While still in the house, Johnson

opened Bor’s closet again. This time Johnson found Bor and instructed him to

leave the house with them and tell the officers it was all a misunderstanding and

the men were just looking for a phone. Bor did as instructed. However, he tried

to stand away from the perpetrators so he could tell the officers the truth. An

officer’s body camera recorded the events at the scene.

       Following the conflict, Tegtmeier was taken to the hospital and received

fourteen staples to close open wounds on his head. Police searched the home

and found a surveillance system smashed and a PlayStation bagged up. They

also observed signs of marijuana dealing. Johnson, Jackson, and Hawkins were

charged with first-degree burglary for their involvment. Both Jackson and Hawkins

pleaded guilty to second-degree burglary. Johnson chose to proceed to trial.
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      At trial, Bor, Tegtmeier, and Zirbel testified. The jury heard the 911 call, and

the jury observed the body-camera footage. The body camera footage showed

Tegtmeier and Zirbel were already outside the home and on the ground when

Johnson was on the roof and allegedly heard someone else beating Tegtmeier

inside. When Johnson and Jackson testified, the prosecutor impeached them with

prior convictions, including convictions older than ten years. The prosecutor also

attempted to impeach Johnson with jailhouse phone calls. When Johnson denied

making certain statements, the prosecutor requested the recordings be played

outside the presence of the jury to refresh Johnson’s recollection. As the first

recording played, Johnson’s counsel objected, noting he had not received a copy

of the recording despite an order to produce the same. As a result, the court

stopped the recordings and barred the State from making any further reference to

the recordings.

      The jury returned a verdict of guilty, and the district court imposed the

mandatory sentence. Johnson timely filed this appeal.

                                         II.

      Johnson asserts several claims of ineffective assistance of counsel. He

contends his counsel was ineffective in the following respects: (1) counsel failed

to object to the prosecutor’s use of prior convictions more than ten years old for

impeachment purposes where the prosecutor did not provide notice; (2) counsel

failed to object/seek new trial on the ground of prosecutorial misconduct after the

prosecutor failed to produce recorded jailhouse phone calls; (3) counsel failed to

object/seek new trial on the ground of prosecutorial misconduct after the

prosecutor questioned Johnson regarding the phone calls; (4) counsel failed to
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move for a mistrial after the prosecutor referenced the jailhouse phone calls; and

(5) counsel failed to interpose an objection to an incomplete jury instruction

regarding aiding and abetting.

        This court reviews claims of ineffective assistance of counsel de novo. See

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). It is the defendant’s burden to

show “(1) his trial counsel failed to perform an essential duty, and (2) this failure

resulted in prejudice.” Id. (citing Strickland v. Washington, 466 U.S. 688, 687-89

(1984)). Failure to prove either element is fatal to the claim. See Strickland, 466

U.S. at 700 (“Failure to make the required showing of either deficient performance

or sufficient prejudice defeats the ineffectiveness claim.”); State v. Graves, 668

N.W.2d 860, 869 (Iowa 2003) (“A defendant’s inability to prove either element is

fatal.”). Thus, “[i]f we conclude a [defendant] has failed to establish either of these

elements, we need not address the remaining element.” Dempsey v. State, 860

N.W.2d 860, 868 (Iowa 2015).

        To establish a breach of duty, the defendant is required to show “that

counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.

“[C]ounsel’s performance is measured against the standard of a reasonably

competent practitioner . . . .” State v. Begey, 672 N.W.2d 747, 749 (Iowa 2003).

There is a strong presumption of counsel’s competence. See Strickland, 466 U.S.

at   689    (“Judicial   scrutiny   of   counsel’s   performance   must    be   highly

deferential . . . .”).

        Yet, “[a]n error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had no
                                           7

effect on the judgment.” Id. at 691. Under the second element, the defendant is

required to show “that counsel’s errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Id. at 687. “It is not enough for the

defendant to show that the errors had [only] some . . . effect on the outcome of the

proceeding.” See id. at 693. Rather, “[t]he defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.

       On de novo review, we conclude the record is sufficient to resolve these

claims on direct appeal. See State v. Tompkins, 859 N.W.2d 631, 637 (Iowa 2015)

(noting ineffective-assistance claims are generally preserved for postconviction-

relief proceedings but may be addressed on direct appeal when the record is

sufficiently developed). We elect to bypass the question of whether counsel

breached a duty in any of the particulars raised and instead focus on the question

of whether the defendant has established constitutional prejudice.

       We conclude Johnson failed to establish constitutional prejudice, whether

the claims are considered in isolation or cumulatively. See State v. Clay, 824

N.W.2d 488, 501-02 (Iowa 2012) (instructing that a court should consider

cumulative prejudice only when “the court analyzes the prejudice prong of

Strickland without considering trial counsel’s failure to perform an essential duty”).

Here, there was overwhelming evidence of Johnson’s guilt. Bor called 911 after

Johnson, Jackson, and Hawkins entered the residence. The call was an open-line

call. The events can be heard in the background, including Johnson, Jackson, and

Hawkins breaking property and then beating Tegtmeier. The police arrived while
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the men were still in the residence. When the police arrived, their encounter with

Johnson, Jackson, and Hawkins was captured by body-camera.                 The audio

recording of the 911 call and the body-camera footage are contemporaneous

documentation of the burglary. Both recordings definitively disprove Johnson’s

version of events. In particular, Johnson’s testimony that he was on the roof while

someone else beat Tegtmeier and Zirbel was definitively disproved by the body-

camera footage showing Tegtmeier and Zirbel had already exited the home prior

to Johnson emerging onto the roof. The audio and video footage was in accord

with the testimony of Bor, Tegtmeier, and Zirbel. Tegtmeier was able to specifically

identify Johnson as one of his assailants due to Johnson’s distinctive hairstyle. All

of this was also supported by the physical evidence, including Tegtmeier’s injuries.

       In light of the overwhelming evidence of Johnson’s guilt, there is not a

reasonable probability the result of the proceeding would have been different but

for the alleged breaches. Johnson has failed to establish his claims of ineffective

assistance of counsel. See State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990)

(determining prejudice did not result given overwhelming evidence of guilt); Whitsel

v. State, 439 N.W.2d 871, 875 (Iowa 1989) (“Regardless of the appellant’s many

claims as to ineffective assistance of counsel, we find no prejudice to the appellant

because the evidence presented at his trial was overwhelming concerning his

guilt.”); see also State v. Carey, 709 N.W.2d 547, 559 (Iowa 2006) (“The most

important factor under the test for prejudice is the strength of the State’s case.”).

                                         III.

       In his next claim of error, Johnson contends the verdict is against the weight

of the evidence and the district court incorrectly denied Johnson’s motion for new
                                          9


trial. The denial of a motion for new trial is reviewed for an abuse of discretion.

See State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006). When assessing whether

the weight of the evidence supports conviction, the district court considers the

credibility of the presented evidence, not just the sufficiency of the evidence. See

id.

       The district court applied the correct legal standard in ruling on the motion.

See State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998) (setting forth the legal

standard). The district court acknowledged its duty to consider the weight of the

evidence, both inculpatory and exculpatory, to determine if a miscarriage of justice

occurred. It then stated it considered the arguments set forth in the motion for new

trial, determined the weight of the evidence supported the verdict, and declined to

order a new trial.

       Johnson seems to acknowledge the district court applied the correct legal

standard in ruling on the motion. He does contend, however, that the district court

should have granted the motion because Johnson’s version of events is more

credible. We disagree. Johnson’s version is simply not credible. Regardless, that

is not the question presented on appeal. The limited question before this court is

whether the district court abused its discretion in denying the motion. See State v.

Reeves, 670 N.W.2d 199, 203 (Iowa 2003). We conclude it did not.

       This claim of error is without mert.

                                         IV.

       Johnson asserts two challenges to his sentence. First, Johnson requests

that he be resentenced because the district court failed to provide reasons for

imposing sentence; failed to reference Iowa Code section 713.3; and failed to
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advise Johnson his sentence had no mandatory minimum term of incarceration.

Sentencing determinations are reviewed for an abuse of discretion. See State v.

Barnes, 791 N.W.2d 817, 827 (Iowa 2010). “A sentence will not be upset on

appellate review unless the defendant demonstrates an abuse of trial court

discretion or a defect in the sentencing procedure . . . .” State v. Witham, 583

N.W.2d 677, 678 (Iowa 1998) (citation omitted).

       There was no abuse of discretion here. The district court had no discretion

to impose any other sentence because the offense was a forcible felony. See Iowa

Code § 907.3; cf. State v. Millsap, 704 N.W.2d 426, 433 (Iowa 2005) (noting the

court must only exercise discretion when a sentence is not mandatory).              In

addition, the district court had no obligation to identify the code provision at issue

or advise the defendant of the lack of a minimum sentence. In short, the district

court’s decision to not recite a reason for imposing a mandatory sentence does not

require resentencing. See State v. Sandstrom, No.17-1582, 2018 WL 3654858,

at *3 (Iowa Ct. App. Aug. 1, 2018) (“Where a court has no discretion in selecting a

sentence, failure to state the reasons for a sentence will not result in remand.”).

       Second, Johnson argues his sentence amounts to cruel and unusual

punishment under the federal constitution. A defendant may challenge the legality

of his or her sentence at any time. See State v. Bruegger, 773 N.W.2d 862, 869

(Iowa 2009). Constitutional challenges are reviewed de novo. Id. To establish his

sentence is cruel and unusual, Johnson must satisfy a three-part test. First, he

must establish his sentence is grossly disproportionate to the underlying offense;

this is a threshold test. See id. at 873. If that preliminary showing can be made,

then the court must engage in an intrajurisdictional analysis followed by an
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interjurisdictional review to determine if the sentence is so grossly disproportionate

that it amounts to cruel and unusual punishment. See id.

       Johnson fails to establish a constitutional violation. He argues he received

a harsher sentence than Hawkins and Jackson even though they participated in

the same burglary. However, Hawkins and Jackson pleaded guilty to different

offenses. Johnson does not pass the threshold test of showing his sentence is

grossly disproportionate to his underlying convicted offense. See id. The claim is

without merit.

                                         V.

       For the above-stated reasons, we affirm the defendant’s conviction and

sentence.

       AFFIRMED.
