                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1166
                                Filed October 1, 2014


JAMES A. EVANS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



       James Evans appeals from the denial of his application for postconviction

relief. AFFIRMED.




       Kate Strickler, Des Moines, for appellant.

       Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

General, John Sarcone, County Attorney, and Frank Severino, Assistant County

Attorney, for appellee State.




       Considered by Danilson, C.J., and Vogel and Bower, JJ.
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DANILSON, C.J.

       James Evans appeals the district court’s denial of his application for

postconviction relief. We affirm.

       On June 26, 2007, a robbery occurred, which was captured on

surveillance video, and Evans and others were charged.                     Evans made

incriminating statements following a waiver of his Miranda rights—that interview

was videotaped. Following a jury trial at which Evans’ videotaped confession

was admitted, Evans was convicted of assault with intent to inflict serious injury

(a lesser-included offense of the attempted-murder charge), first-degree robbery,

intimidation with a dangerous weapon with intent, and eluding while participating

in a felony. See State v. Evans, No. 08-0532, 2010 WL 2540794, at *1 (Iowa

2010). He appealed only his conviction of assault with intent to inflict serious

injury, which conviction was affirmed. See id. at *1-2.

       Evans thereafter filed an application for postconviction relief, contending

his trial counsel had been ineffective in failing to make an opening statement, in

failing to pursue an “intoxication defense,”1 and in failing to move to suppress his

confession due to impairment at the time of the confession. Trial counsel and

Evans testified. The district court denied the application concluding, first, Evans

could not establish he was prejudiced by counsel’s failure to make an opening

argument in light of the overwhelming evidence of guilt. Next, the postconviction
1
  “It has long been the general rule in Iowa that, although voluntary intoxication cannot
constitute a defense to a crime, it may negate criminal intent if such intent is an element
of the crime charged.” State v. Caldwell, 385 N.W.2d 553, 557 (Iowa 1986); Iowa Code
§ 701.5 (2007) (“The fact that a person is under the influence of intoxicants or drugs
neither excuses the person’s act nor aggravates the person’s guilt, but may be shown
where it is relevant in proving the person’s specific intent or recklessness at the time of
the person’s alleged criminal act or in proving any element of the public offense with
which the person is charged.”).
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court ruled there was no evidence to support Evans’ present claim he was under

the influence of drugs at the time of the offense and counsel had no duty to

pursue a defense not supported by the evidence. Finally, the court found “there

is no indication whatsoever in the videotaped statement . . . that Evans was in

any way impaired”; he was informed of his constitutional rights, Evans stated he

understood them, and he signed a written waiver; “Evans responded to the

questions asked of him in a lucid, unimpaired manner”; the interview was not

confrontational; and nothing in the interview gave “any indication that Evans was

unduly influenced or his will overborne by the officers.” The court concluded a

motion to suppress would have been unsuccessful. Evans appeals.

       “‘[A]ll postconviction relief applicants who seek relief as a consequence of

ineffective assistance of counsel must establish counsel breached a duty and

prejudice resulted.’”   Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012)

(citation omitted). If the applicant fails on either prong, the claim can be decided

on that ground alone. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).

       Upon our de novo review of the ineffectiveness claims, see Lamasters,

821 N.W.2d at 862, we agree that Evans failed to prove counsel was ineffective.

Evans claims “[h]ad there been an opening argument, the jury would have had

reasonable doubt regarding Evans’ guilt.” We first note that defense counsel did

not waive the opening statement but instead deferred giving an opening

statement until the conclusion of the State’s evidence. Evans does not identify

what type of argument would counter the overwhelming evidence of his guilt or

how deferring the opening statement caused any prejudice. Consequently, he

has not established the requisite prejudice to support an ineffectiveness claim.
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See State v. Parker, 747 N.W.2d 196, 211 (Iowa 2008). Moreover, there was no

evidence—other than his present contention—to support Evans’ claim he was

intoxicated at the time of the offense or that his admissions were made under the

influence or were otherwise involuntarily made.        See State v. Dudley, 766

N.W.2d 606, 620 (Iowa 2009) (noting counsel has no duty to raise a meritless

issue).    Further discussion would be of little value, and we therefore affirm

without further opinion. See Iowa Ct. R. 21.26(1)(a), (d), and (e).

          AFFIRMED.
