                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0983
                               Filed March 4, 2020


ALBERT JOHNSON III,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark R. Lawson,

Judge.



      Johnson appeals from the denial of his amended application for

postconviction relief. AFFIRMED.



      Thomas J. O’Flaherty of O’Flaherty Law Firm, Bettendorf (until withdrawal),

and Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

      Albert Johnson III, Clarinda, self-represented appellant.

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

General, for appellee State.



      Considered by Bower, C.J., Mullins, J., and Vogel, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
                                          2


MULLINS, Judge.

       Albert Johnson III, appeals the denial of his application for postconviction

relief (PCR).   Johnson raises claims through counsel and pro se.1           Through

counsel, Johnson argues (1) trial counsel was ineffective in failing to object to (a)

police testimony outside the scope of the minutes of evidence, (b) the joint-

criminal-conduct jury instruction, and (c) the prosecutor’s use of undisclosed police

testimony and vouching for witness credibility in closing arguments; (2) appellate

counsel was ineffective in failing to (a) adequately raise and argue the

voluntariness of the speedy-trial waiver, and (b) raise the issue of prosecutorial

misconduct regarding use of undisclosed police reports and the joint-criminal-

conduct jury instruction; and (3) PCR counsel was ineffective in (a) failing to

actively pursue the case after filing a pro forma amended PCR application,

(b) engaging in conduct resulting in a reprimand from the Iowa Attorney

Disciplinary Board (Board), and (c) failing to depose several witnesses in the

underlying criminal matter and in PCR proceedings. Johnson argues pro se that

(1) trial counsel was ineffective in failing to object to police testimony outside the



1 While recently enacted legislation forecloses our ability to consider pro se
documents, see 2019 Iowa Acts ch. 140, § 30(1) (codified at Iowa Code
§ 814.6A(1) (2019)), we have concluded the legislation does not apply to pro se
materials filed before its effective date, July 1, 2019. See, e.g., State v. Banks,
No. 18-1337, 2020 WL 110297, at *2 n.2 (Iowa Ct. App. Jan. 9, 2020); Campbell
v. State, No. 18-1052, 2020 WL 105086, at *1 n.1 (Iowa Ct. App. Jan. 9, 2020);
State v. Banks, No. 18-0721, 2020 WL 105078, at *1 n.1 (Iowa Ct. App. Jan. 9,
2020); State v. O’Connor, No. 18-0376, 2020 WL 109509, at *3 n.1 (Iowa Ct. App.
Jan. 9, 2020); State v. Syperda, No. 18-1471, 2019 WL 6893791, at *12 (Iowa Ct.
App. Dec. 18, 2019); Daniels v. State, 18-0672, 2019 WL 6894225, at *1 n.2. (Iowa
Ct. App. Dec. 18, 2019); State v. Kehoe, No. 18-0222, 2019 WL 6893771, at *1
n.1 (Iowa Ct. App. Dec. 18, 2019); State v. Purk, No. 18-0208, 2019 WL 5790875,
at *7 n.8 (Iowa Ct. App. Nov. 6, 2019). We will consider Johnson’s pro se briefs.
                                           3


scope of the minutes of evidence and (2) both trial and appellate counsel were

ineffective in (a) failing to investigate an alleged speedy-trial violation,

(b) neglecting Johnson, (c) failing to argue on appeal that Johnson’s speedy-trial

waiver was not voluntary, and (d) failing to file for rehearing with this court or for

further review with the Iowa Supreme Court.2

I.     Background Facts and Proceedings

       In 2012, Johnson, formerly known as Albert Butler III, was convicted of

burglary in the first degree, robbery in the first degree, conspiracy to commit a

forcible felony, willful injury causing serious injury, and assault while participating

in a felony resulting in a serious injury. This court affirmed the convictions on direct

appeal. State v. Butler, No. 12-0858, 2013 WL 2145741, at *1 (Iowa Ct. App. May

15, 2013). Johnson began PCR proceedings following the appeal. Johnson

alleges his numerous attorneys throughout the underlying criminal and PCR

proceedings were ineffective.

       The incident giving rise to Johnson’s criminal charges occurred on January

17, 2011. A home invasion was perpetrated by three people, one armed with a

shotgun. One occupant was shot in the leg. Johnson was the alleged shooter.

When charged in August 2011, Johnson was incarcerated in Illinois and was

appointed counsel from the Iowa Public Defender’s Office. The public defender

withdrew due to a conflict of interest, beginning a revolving door of counsel

throughout Johnson’s criminal and PCR proceedings. The particulars of each




2Johnson’s pro se claims largely duplicate claims raised through counsel. To the
extent the claims overlap, we choose to address them only once.
                                           4


counsel’s representation will be discussed in relation to the claims presented

below.

II.      Standard of Review

         Appellate courts review PCR proceedings for errors at law. Ledezma v.

State, 626 N.W.2d 134, 141 (Iowa 2001).             However, claims of ineffective

assistance of counsel, even when raised through PCR proceedings, are reviewed

de novo. Id. When exercising a de novo review, “we give weight to the lower

court’s findings concerning witness credibility.” Id.

III.     Discussion

         A.    Ineffective Assistance of Counsel

         Johnson claims all counsel that represented him through the process of trial,

direct appeal, and PCR were ineffective, except the public defender and counsel

for this appeal. In order to prove ineffective assistance of counsel, “a claimant

must satisfy the Strickland 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) (quoting State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008)). The

first prong, failure to perform an essential duty, is satisfied by showing by a

preponderance of the evidence that counsel’s error was so serious that counsel

“was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. (quoting State v. Palmer, 791 N.W.2d 840, 850 (Iowa 2010)).

The second prong requires the claimant to prove “a reasonable probability that,

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

been different.” Id. at 496 (quoting Maxwell, 743 N.W.2d at 196).
                                          5

              1.     Trial Counsel

       Johnson alleges trial counsel was ineffective in failing to object to (1) police

testimony outside the scope of the minutes of evidence, (2) a joint-criminal-conduct

jury instruction, and (3) multiple improprieties allegedly committed by the State

during closing arguments.

       Our supreme court has found “there is no requirement that the minutes of

[evidence] provide a complete catalogue of witness testimony at trial, but only that

the defense be placed on fair notice and not subject to surprise testimony.” State

v. Shorter, 893 N.W.2d 65, 81 (Iowa 2017). Johnson alleges testimony regarding

a traffic stop that took place nine days after the robbery was used as improper

identification evidence because it was not contained or referenced at all in the

minutes of evidence.3 The PCR court stated:

       [The traffic stop] was nine days after the crime. This testimony—
       concerning an incident several days after the event and involving the
       applicant and a co-defendant—did not provide the defendant with a
       meaningful opportunity to counter that testimony. If trial counsel
       would have objected, it is likely this testimony would have been
       excluded. The court cannot deduce a strategic reason not to object,
       and will assume that trial counsel breached an essential duty in
       failing to object to this testimony.

However, the PCR court found Johnson failed to prove prejudice.

       The minutes of evidence indicate that Officer Butt observed a vehicle and

its occupants while en route to the scene of the robbery on the night of the robbery.

The testimony at issue is about a traffic stop that took place more than a week later

and produced evidence related to a co-defendant. We agree with the PCR court


3Johnson also criticizes trial counsel’s failure to take depositions. Because this
argument was not ruled on by the PCR court we cannot consider it on appeal. See
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
                                         6


there was no strategic advantage in allowing this testimony to be admitted. Trial

counsel breached an essential duty in failing to object to Officer Butt’s testimony

related to the traffic stop, so we next consider whether Johnson was prejudiced by

the breach. See Clay, 824 N.W.2d at 495–96.

       Is there is a reasonable probability Johnson would have avoided conviction

if counsel had objected to Butt’s traffic-stop testimony? See id. at 496. The jury

heard evidence including jailhouse informants testifying to Johnson’s admissions

of guilt and the statements of Johnson’s former paramour regarding admissions

and behavior the night of the crime. The jury also heard evidence placing Johnson

with a co-defendant at the time of the crime. Even if counsel had objected to

testimony on the January 26 traffic stop, we see no reasonable probability the trial

would have resulted any other way. See id.

       Johnson argues his counsel was ineffective in failing to object to the joint-

criminal-conduct jury instruction. Jury instruction number ten stated:

       When two or more persons act together and knowingly commit a
       crime, each is responsible for the other’s acts during the commission
       of the crime or escape from the scene. A defendant’s guilt is the
       same as the other person’s unless the acts could not reasonably be
       expected to be done in furtherance of the commission of the crime.

The State then referenced joint criminal conduct during closing arguments, stating

“this is really something that’s more apropos as it relates to [the co-defendants].”

Johnson does not argue the instruction is an incorrect statement of the law, merely

that it should not have been given based on the facts of this case, and when

coupled with the references in closing statements, was used to “pile onto [the

State’s] theory.”
                                          7


         In order to convict pursuant to a joint-criminal-conduct theory, there must

be two separate acts. State v. Tyler, 873 N.W.2d 741, 752 (Iowa 2016). The first

is “the crime the joint actor has knowingly participated in, and a second or resulting

crime that is unplanned but could reasonably be expected to occur in furtherance

of the first one.” Id. (quoting State v. Rodriguez, 804 N.W.2d 844, 852 (Iowa

2011)). In Tyler, the defendant struck another person in the face, knocking that

person to the ground. Id. at 744–45. Shortly thereafter, the rest of the group with

Tyler continued the violent attack. Id. at 745. The two crimes in Tyler, the initial

strike and following group attack, could arguably be separated. Id. at 752. But,

conviction pursuant to a joint-criminal-conduct theory would have required that the

jury “found Tyler acted in concert when he committed the first crime . . . . A jury

would have to find there was a plan in place among Tyler and the others . . . at the

time Tyler struck the first blow.” Id. The fact that Tyler was surrounded by a group

of people was insufficient to support that theory. Id. at 753. The court ultimately

found the joint-criminal-conduct instruction was improper and reversed his

conviction. Id.

         In the case at bar, the first crimes were the robbery and burglary. The

second crime was the willful injury causing serious injury, which could reasonably

be expected to occur in furtherance of an armed robbery or burglary. It would

appear the requirements described in Tyler have been met. See id. at 752.

However, instruction ten instructed the jury Johnson should be held accountable

for “the other’s acts.” (Emphasis added.) The act of firing the shotgun was not the

act of another, it was Johnson’s act. Thus, it was improper for the instruction to be

given.
                                         8


       Our supreme court has also held:

       [T]he giving of a joint criminal conduct instruction in instances in
       which the alleged multiple participants are either principals or aiders
       and abettors in the same crime does not require reversal if there is
       no opportunity for the defendant to have been found guilty based on
       anything other than his own conduct as a principal or an aider and
       abettor of the crime with which he is charged.

State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998) (citations omitted). In this

case, there was no opportunity for Johnson to have been convicted of the willful

injury causing serious injury for the acts of anyone else as he was the principal,

the shooter. Thus, the error in giving instruction ten to the jury is not fatal. See

Shorter, 893 N.W.2d at 75–76; Jackson, 587 N.W.2d at 766.

       Johnson finally argues trial counsel was ineffective in failing to object to

misconduct committed by the prosecutor during closing arguments.            Johnson

targets the previously discussed evidence obtained pursuant to Officer Butt’s traffic

stop, personal opinions allegedly offered by the prosecutor, and vouching for

witness credibility. Based on our prior analysis of the Officer Butt traffic stop, we

maintain our finding the failure to object to the evidence, and the following failure

to object to the discussion in closing arguments, was not prejudicial. As to the

other alleged instances of prosecutorial misconduct, we consider them below

under a separate heading.

              2.     Appellate Counsel

       Johnson, through counsel, generally argues that prior appellate counsel

was ineffective on direct appeal. In this appeal, however, the briefs make only

general allegations and provide no references to specific instances of
                                         9


ineffectiveness in the record, nor are there sufficient legal citations.4      Briefs

submitted on appeal must include citations to legal authority and relevant sections

of the record, failure to do so may result in waiver of the issue. Iowa R. App. P.

6.903(2)(g)(3). Because of the failure to identify specific alleged errors, we deem

the arguments waived.

       Johnson argues pro se that both trial and prior appellate counsel were

ineffective in failing to argue his speedy-trial waiver was involuntary. The State

argues the waiver was voluntary and counsel, specifically appellate counsel, was

not ineffective for failing to raise a meritless argument.5 Because the PCR court

addressed this claim in relation to only appellate counsel, we will do the same.

See Meier, 641 N.W.2d at 537.

       At the time charges were filed, Johnson was incarcerated in a federal facility

in Illinois. He was appointed counsel and attempted, pro se, to seek extradition to

Iowa. Johnson was transferred to the Scott County jail approximately two months

later and was immediately appointed new counsel.6 Newly-appointed counsel

appeared with Johnson for arraignment on October 20, 2011, and demanded


4 Counsel made one reference to legal authority following citations to cases
describing the test for ineffective assistance. Merely reminding the court of the
responsibility placed on appellate attorneys to assess error is insufficient to alert
the court of the errors to be addressed on appeal. See Iowa R. App.
P. 6.903(2)(g)(3).
5 Johnson also argues trial and appellate counsel were ineffective in neglecting

him and appellate counsel was ineffective in failing to file for rehearing with this
court or further review with our supreme court. Neither issue was ruled on by the
PCR court. Thus, we deem them waived. See Meier, 641 N.W.2d at 537.
6 Prior counsel, appointed following withdrawal of the public defender, alleged she

was never notified of the appointment. The PCR court credited Johnson’s
testimony that he attempted to contact prior counsel while in Illinois but also found
a “reasonable assumption” counsel did not reply based on her testimony she was
never notified of the appointment.
                                         10


speedy trial, which would expire on November 7. Trial was set for that date.

Johnson expressed frustration with the newly-appointed counsel early in their

relationship.   Johnson filed, pro se, a motion to dismiss on October 26, alleging

he had less than a month to prepare for trial. The motion was scheduled for

hearing on November 28. Counsel informed Johnson he was prepared for trial on

November 7 and would argue the motion to dismiss as a pretrial motion, but

Johnson could waive his right to speedy trial to have more time to prepare and

secure new counsel. Johnson waived speedy trial and sought new counsel,

successfully asking for a specific attorney.

       The PCR court found Johnson voluntarily waived speedy trial, noting his

tactical purpose.    Johnson wanted new counsel to appear with him at trial.

Testimony at the PCR trial indicates counsel advised Johnson of the rights

implicated in waiving speedy trial, discussed the disadvantage of having little time

to prepare for trial, but also that counsel was in fact prepared for trial. The PCR

court found counsel was prepared for trial within the speedy-trial deadline. Based

on these facts, we cannot say counsel breached an essential duty in failing to

argue the speedy-trial waiver was involuntary on appeal. See Clay, 824 N.W.2d

at 495. Thus, appellate counsel was not ineffective in this respect. See id.

                3.   PCR Counsel

       Johnson argues his first and second PCR counsel were ineffective in failing

to adequately develop a record. Johnson also claims second PCR counsel was

ineffective based on a finding of the Board that counsel “should be admonished.”

Johnson argues third PCR counsel was ineffective in failing to take depositions.
                                         11


       Claims that counsel did not adequately create a record are broad and fail to

identify any specific error. Our supreme court has found “appeal of an equity case

does not entitle an appellant to a trial de novo, only review of identified error de

novo.” Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996). We find the same

principle is applicable here. Because specific factual and legal conclusions have

not been identified for our review, we cannot address the claim that first and

second PCR counsel failed to create an adequate record.

       Johnson appears to claim he is automatically entitled to relief based on the

Board’s finding second PCR counsel violated duties owed to clients. Johnson’s

claim is based on a letter from the Board following a complaint he filed. However,

the two-pronged test used by Iowa courts to examine claims of ineffective

assistance provides otherwise. See Clay, 824 N.W.2d at 495. Even if the Board’s

findings are dispositive of breach, Johnson must still prove prejudice. See id.

       The Board’s letter states second PCR counsel engaged in conduct which

violated rules regarding diligence, communication, safekeeping property,

disregarding a court order, and conduct prejudicial to the administration of justice.

From the record, we can see second PCR counsel violated a court order directing

counsel to file an appearance and schedule Johnson’s trial, failed to maintain

communication with Johnson, and failed to appear for a hearing as directed by the

court. It is apparent second PCR counsel breached duties owed to Johnson.

However, second PCR counsel was removed before trial took place. Although

second PCR counsel’s behavior was inappropriate, it does not give this court any

reason to question the outcome of the PCR trial. See id. at 496.
                                           12


         Johnson also alleges third PCR counsel was ineffective in failing to take

depositions prior to trial. Johnson argues this resulted in counsel asking “basic

background questions” at trial, leaving gaps in testimony that should have been

further developed. The record shows third PCR counsel moved to continue trial in

order to take depositions in August 2016, successfully applied for state funds to

take depositions in March 2017, and unsuccessfully moved for permission to

withdraw in February 2018. Trial was set for April.7 In the order denying the

motion, the court said counsel had a “good grasp” of the issues and noted

counsel’s acknowledgement that depositions still needed to be taken. Depositions

never were, in fact, completed. But, the statement of issues filed prior to trial and

PCR trial transcript confirm that counsel understood the issues, developed

arguments, and thoroughly examined witnesses. On this record, we cannot say

the failure to do so has resulted in a breach of duty. See id. at 495. Because we

find third PCR counsel did not breach a duty, we do not find counsel ineffective.

See id.

         B.     Prosecutorial Misconduct

         Johnson alleges the prosecutor improperly suppressed police documents,

submitted jury instruction ten on joint criminal conduct, and vouched for the

credibility of witnesses. We will also address the personal-opinion argument raised

above. The State argues error has not been preserved on any prosecutorial-

misconduct claim, insisting they are barred by statute. As to the personal-opinion

argument, the State insists no misconduct occurred.



7   Trial was continued to May due to a court conflict.
                                        13


      In general, to preserve an issue for appeal it must be raised before and

decided by the district court. Meier, 641 N.W.2d at 537. A similar procedure

extends to PCR proceedings.

      All grounds for relief available to an applicant . . . must be raised in
      the applicant’s original, supplemental or amended application Any
      ground finally adjudicated or not raised, or knowingly, voluntarily, and
      intelligently waived in the proceeding that resulted in the conviction
      or sentence, or in any other proceeding the applicant has taken to
      secure relief, may not be the basis for a subsequent application,
      unless the court finds a ground for relief asserted which for sufficient
      reason was not asserted or was inadequately raised in the original,
      supplemental, or amended application.

Iowa Code § 822.8 (2013). Our supreme court has “long held [PCR] is not a means

for relitigating claims that were or should have been properly presented on direct

appeal.” Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998) (citations omitted).

In order to raise prosecutorial-misconduct claims as a part of PCR proceedings

that were not raised on direct appeal a claimant must show “sufficient reason” or

“cause” for not doing so. Id. A claimant must also show actual prejudice resulted.

Gordon v. State, 480 N.W.2d 265, 267 (Iowa Ct. App. 1991).

      In this case, no argument for sufficient cause was presented. Johnson’s

brief addresses only the merits of the claims. The PCR court addressed evidence

outside the minutes of evidence solely through ineffective-assistance claims.8 The

PCR court addressed the vouching claim, albeit briefly, finding no misconduct

occurred. Because no sufficient cause or prejudice has been shown, we cannot

reach the merits. See Osborn, 573 N.W.2d at 921; Gordon, 480 N.W.2d at 267.


8 The district court did not address the admission of Officer Butt’s traffic-stop
evidence or submission of jury instruction ten through a prosecutorial-misconduct
theory. Because those arguments were not raised and ruled on, we deem them
waived. Meier, 641 N.W.2d at 537.
                                         14


       We now turn to Johnson’s claim his trial counsel was ineffective in failing to

object to prosecutorial misconduct. Johnson’s claim rests on alleged misconduct

through admission of undisclosed police testimony and the prosecutor’s personal-

opinion statements during closing arguments. In its brief discussion, the PCR court

stated the prosecutor “did not interject her personal beliefs. While she certainly

made statements that the applicant and his attorney disagreed with, this framed

the issues for the jury to decide.” No misconduct was found.

       The PCR court’s ruling addressed Johnson’s allegations of prosecutorial

misconduct but did not address any ineffective-assistance claim for failure to object

to prosecutorial misconduct. In order for this court to review those claims, they

must have been raised before and ruled upon by the lower court. Meier, 641

N.W.2d at 537. It does not appear that happened, and we deem the claims

unpreserved. See id.

IV.    Conclusion

       We find all of Johnson’s claims of ineffective assistance of counsel, raised

through counsel and pro se, must fail. Because Johnson failed to present an

argument showing sufficient cause for failing to raise his prosecutorial-misconduct

claims on direct appeal, we deem them waived and unpreserved.

       AFFIRMED.
