                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0960
                               Filed May 15, 2019


SPENCER A. PIERCE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.



      Spencer Pierce appeals the denial of his application for postconviction

relief. AFFIRMED.



      Heidi Young of Parrish Kruidenier Dunn Boles Gentry Brown & Bergmann

L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant

Attorney General, for appellee State.



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

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                         2


CARR, Senior Judge.

       Spencer A. Pierce appeals the denial of his application for postconviction

relief (PCR). He argues his trial counsel was ineffective for failing to take several

actions: (1) file a motion to suppress evidence from the search of an apartment;

(2) properly argue the motion to suppress evidence from the search of a vehicle;

(3) investigate a confidential informant; and (4) prepare for trial. We find Pierce

has not shown prejudice by proving, but for counsel’s claimed errors, he would

have refused the plea bargain and proceeded to trial. Furthermore, he has not

proven: (1) the warrant to search the residence was impermissibly tainted by

evidence from an illegal search and seizure or from inaccuracies in the application;

(2) the warrant to search the vehicle was improperly rejected or the vehicle would

not run properly with the evidence in place; (3) evidence from the confidential

informant was beneficial to him; or (4) a lack of preparation for trial by counsel

caused him to plead guilty. Therefore, we affirm.

       I.     Background Facts and Proceedings

       On June 7, 2013, Des Moines police observed Pierce driving a Dodge

Durango. Officers were searching for a similar Durango, Deanna Hood, and a man

matching Pierce’s appearance named “Spence” or “Spencer” in connection with a

murder the previous day. Officers had also recently seen the Durango while

investigating drug activity. An officer approached Pierce as he exited the Durango

at an apartment complex. Pierce told the officer his name was “Spencer” and he

lived in apartment twenty-three in the complex. The officer then detained him.

       Detective Brad Youngblut, who had been investigating the murder, soon

arrived at the complex.       He spoke to Pierce, who “was not completely
                                         3


uncooperative, but he wasn’t exactly forthcoming.”        From their conversation,

Detective Youngblut determined Hood was likely in apartment twenty-three.

Without Pierce’s consent, officers took Pierce to the apartment in search of Hood.

No one answered when the officers knocked on the apartment door, so they used

Pierce’s keys to unlock the door. As officers used the correct key, Pierce yelled,

“Flush the weed. They’re coming in.” Officers then transported Pierce and Hood

to the police station for further questioning. Both at the apartment complex and

the police station, Pierce said he wanted counsel. He was later held in jail on a

parole violation.

       That same day, officers applied for—and received—a search warrant for

Pierce’s apartment and the Durango. Inside the apartment, officers found drugs

and related paraphernalia, including baggies containing marijuana and

methamphetamine. Officers also impounded the Durango that day.

       On July 9, Pierce was charged in FECR267109 with five counts of

controlled-substance violations resulting from the search of his apartment and the

previous drug investigation. He was later charged in FECR268032 with murder

and robbery.

       On August 15, Detective Youngblut interviewed a confidential informant,

who was imprisoned in Iowa. The informant said he met Pierce while they were in

jail together. According to the informant, Pierce said drugs were still hidden in the

“blower” of the Durango. Detective Youngblut requested a drug-sniffing dog to

search the Durango, which remained in the impound facility. The dog detected an

odor in the air filter in the open engine compartment. Officers opened the air filter

and found baggies that appeared to contain methamphetamine. They returned the
                                         4


Durango to its prior state and later collected the drugs under a search warrant for

the vehicle. The search resulted in Pierce being charged with three additional

counts of controlled-substance violations in FECR269461.

       Pierce first proceeded to trial on the murder and robbery charges in

FECR268032, and the jury returned a guilty verdict on both counts on November

6. On December 17, the court sentenced him to life in prison for murder in the first

degree and twenty-five years in prison for robbery in the first degree, run

concurrently.

       Meanwhile, Pierce pled not guilty to the eight total controlled-substance

charges in FECR267109 and FECR269461.              His counsel filed a motion to

suppress evidence from the search of the Durango, and he filed a pro se motion

to suppress evidence from the search of the apartment. The court denied both

motions. On December 9, Pierce changed his plea to guilty on one count of

conspiracy to deliver a controlled substance, in violation of Iowa Code section

124.401(1)(b)(7) (2013), from FECR267109. As part of a plea agreement, the

remaining charges in FECR267109 and FECR269461 were dismissed. The court

sentenced him to twenty-five years in prison for the conspiracy, run concurrent to

his sentences for murder and robbery. This court later found insufficient evidence

to support the murder and robbery convictions, resulting in dismissal of those

charges. See State v. Pierce, No. 13-2004, 2015 WL 3613329, at *5 (Iowa Ct.

App. June 10, 2015); see also State v. Hood, No. 13-1998, 2015 WL 3613243, at

*11 (Iowa Ct. App. June 10, 2015) (affirming the murder and robbery convictions

and sentence of Hood).
                                          5


       On January 3, 2014, Pierce filed his application for postconviction relief from

the conspiracy to deliver conviction. After amending his application twice, the

matter proceeded to a hearing on October 17 and November 18, 2016. On June

6, 2017, the district court issued its ruling denying his application. He now appeals.

       II.    Standard of Review

       We review ineffective-assistance-of-counsel claims de novo.           State v.

Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). “In order to succeed on a claim of

ineffective assistance of counsel, a defendant must prove: (1) counsel failed to

perform an essential duty; and (2) prejudice resulted.” Id. (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)). The defendant must prove both prongs

by a preponderance of the evidence. Id. at 196. “In addition, we give weight to

the lower court’s findings concerning witness credibility.” Ledezma v. State, 626

N.W.2d 134, 141 (Iowa 2001). In the context of a claim of ineffective assistance

rendered in advance of a plea of guilty, the applicant “must show that there is a

reasonable probability that, but for counsel’s errors, he or she would not have

pleaded guilty and would have insisted on going to trial.” State v. Straw, 709

N.W.2d 128, 138 (Iowa 2006) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

       III.   Prejudice

       We need not always determine counsel’s performance was deficient before

examining the alleged prejudice suffered as a result of the deficiencies:

       The object of an ineffectiveness claim is not to grade counsel’s
       performance. If it is easier to dispose of an ineffectiveness claim on
       the ground of lack of sufficient prejudice, which we expect will often
       be so, that course should be followed. Courts should strive to ensure
       that ineffectiveness claims not become so burdensome to defense
       counsel that the entire criminal justice system suffers as a result.
                                          6

Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984) (quoting Strickland, 466 U.S. at

697).

        We note the deficiencies Pierce now claims to us were all known and the

subject of discussion between him and his counsel before the plea. His counsel

considered the validity of the search warrant for the apartment but ultimately chose

not to file a motion to suppress, leaving Pierce to file his motion pro se. In

particular, Pierce and counsel knew of the circumstances of his detention, the

method of entry into the apartment, and discrepancies in the warrant application.

The court heard and denied the motion to suppress the fruits of the warranted

Durango search three days before the plea proceeding, as noted in the plea

colloquy. Pierce’s request for production of reports about the jail informant were

outstanding and had not been honored, nor had his request for investigation of

whether the Durango engine would operate with drugs concealed in the blower.

        We also note that, at the time he entered his guilty plea on the drug charges

here, he had been convicted of and was awaiting entry of a life sentence for murder

and robbery. Should his convictions and sentence for murder and robbery stand

on appeal, his drug charges would have little practical impact on the sentence

actually served. However, should his appeal of the murder and robbery charges

succeed, the plea bargain on offer provided him benefit. Sentences for the eight

drug counts lodged against him—all felonies—in the absence of merger of

conspiracy counts into their corresponding substantive offenses, potentially totaled

well over one hundred years of incarceration if run consecutively. Should defense

of these prove unsuccessful, a successful appeal of his murder conviction and

pending life sentence would provide no benefit.
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       By agreeing to the plea bargain with the single controlled-substance charge,

the State agreed to recommend a sentence with a one-third reduction in the

minimum term of incarceration, a suspended minimum fine, and a term of

incarceration run concurrently with his then-pending sentence for murder and

robbery.     The State also agreed to dismiss his remaining seven controlled-

substance charges. This plea bargain conveyed a significant benefit to him, and

he showed no hesitation to accept the bargain during his plea hearing. While he

testified at his PCR hearing that he felt forced to accept the plea bargain, he must

offer more than his own self-serving testimony to prove ineffective assistance. See

Dempsey v. State, 860 N.W.2d 860, 869 (Iowa 2015).

       Pierce has not carried his burden to prove, but for counsel’s claimed errors,

he would have refused the plea bargain and proceeded to trial. That said, there is

logic in his point that if both searches were bad and, but for counsel’s failure to file

one motion to suppress and failure to properly present the other, all the evidence

against him were suppressed, he would not have pled guilty to charges for which

no admissible evidence existed. Such an evaluation squares with Hill, 474 U.S. at

59 (“In many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the

inquiry engaged in by courts reviewing ineffective-assistance challenges to

convictions obtained through a trial.”). We therefore proceed to consider whether

he has proven his counsel breached an essential duty.

       IV.     Warrant to Search the Apartment

               A. Warrantless search and seizure

       “Warrantless searches and seizures are per se unreasonable unless a

recognized exception applies.” State v. McCoy, 692 N.W.2d 6, 14–15 (Iowa 2005).
                                        8


When officers detained Pierce at the apartment complex, the State had evidence

Hood and the Durango were involved in a murder the previous day. This evidence

created reasonable suspicion to legally detain Pierce as part of the investigation.

See id. at 19.    However, the reasonable suspicion ended when the State

determined Hood was not with Pierce. See id. (“The detectives could certainly ask

enough questions to dispel any notion that [the suspect] was in the vehicle. Once

having learned the identity of the occupants, however, the reasonable scope of the

intrusion ended.”). Lacking probable cause for arrest, the detention then became

an illegal seizure. See id. While the State does not explicitly concede this point,

the State never offers an argument to support the lawfulness of his continued

detention.

      The State may have also violated Pierce’s constitutional rights by failing to

give Miranda warnings at the apartment complex and by continuing to question

him after he invoked his right to counsel. See State v. Peterson, 663 N.W.2d 417,

423–27 (Iowa 2003) (citing Miranda v. Arizona, 384 U.S. 436, 473–79 (1966)). The

record contains no indication Pierce voluntarily cooperated with the police, and

Detective Youngblut acknowledged Pierce did not consent when they took him to

the apartment. The State argues Pierce’s statements at the apartment door to

“flush the weed” were spontaneous and not affected by the lack of Miranda

warnings. See State v. Little, 421 N.W.2d 172, 174 (Iowa 1988). However, the

State does not explain how these statements are not a result of the earlier illegal

seizure.

      Any evidence obtained in an illegal search and seizure “may not form the

basis of probable cause to issue a search warrant.” State v. Naujoks, 637 N.W.2d
                                          9


101, 111 (Iowa 2001). The warrant application includes a four-page single-spaced

affidavit describing the evidence in support of the application. Even if we assume

all evidence obtained after the initial, lawful detention is tainted and must be

excised from the application, probable cause still exists to support the warrant.

See id. A witness said the victim was arranging a drug deal shortly before the

murder. The victim’s phone shows it exchanged several calls and texts with a

number associated with Hood, and these communications ended at the time of the

murder. Surveillance video shows a vehicle matching the Durango around the

time and location of the murder. Multiple witnesses said Hood and the victim were

associates. Police had seen the Durango while surveilling drug activity, and Hood

and “Spencer” were previously seen in the Durango. Officers could not find Hood

at her last known addresses. The apartment complex owner confirmed Pierce is

the tenant in apartment twenty-three.         Because probable cause supports the

warrant even without any potentially tainted evidence from the detention, Pierce’s

trial counsel did not breach an essential duty by failing to file a motion to suppress

the warrant.

       In reaching this conclusion, we do not minimize or condone the police

conduct evident in this record. The apparent violations of Pierce’s constitutional

rights preceding the search of his apartment are particularly troubling.          Our

reservations notwithstanding, we conclude that, even if we exclude evidence so

obtained, probable cause still exists to support the issuance of the search warrant.

               B. Inaccuracies in the warrant application

       In Franks v. Delaware, 438 U.S. 154, 171–72 (1978), the Supreme Court

announced “a means to examine truthfulness of an affiant in presenting evidence
                                        10

to a magistrate supporting issuance of a search warrant.” State v. Niehaus, 452

N.W.2d 184, 186 (Iowa 1990).

      The inquiry adopted by Franks is limited to a determination of
      whether the affiant was purposely untruthful with regard to a material
      fact in his or her application for the warrant, or acted with reckless
      disregard for the truth. If the court finds that the affiant consciously
      falsified the challenged information, or acted with reckless disregard
      for the truth in his or her application for the warrant, the offensive
      material must be deleted and the remainder of the warrant reviewed
      to determine whether probable cause existed.

Id. at 186–87.

      Pierce points to three inaccuracies in the warrant application. First, the

application states a detective found a handwritten letter from Hood in the victim’s

home. No such letter is in the record, and the detective named in the application

testified he did not recall finding such a letter. Second, the application states

officers had seen Hood and “Spencer” in the Durango and had conducted

controlled drug buys with Hood, “proving her to be a drug supplier.” The officer

investigating the drug activity testified officers had never seen Hood or Pierce in

the Durango nor had they done a controlled buy with Hood or Pierce. Third, the

application states Pierce told officers Hood was inside apartment twenty-three.

Detective Youngblut testified no one explicitly told him Hood was inside the

apartment.

      Pierce has presented no evidence the affiant was “purposely untruthful,”

and he has not proven the affiant acted with “reckless disregard for the truth.” See

id. The affiant testified she gathered information for the application from several

officers who worked the investigation and she was not directly involved with many

of the investigatory steps. Nevertheless, everything in the affidavit is “true and
                                         11


correct, as far as [she] know[s].” While the challenged statements inaccurately

describe how officers learned the information, other evidence in the record shows

officers learned the substance of these statements from other sources.          The

affidavit refers to a neighbor who saw a handwritten letter from Hood to the victim.

The narcotics investigator testified he had seen the Durango during surveillance

and a confidential informant told him Pierce and Hood were driving the Durango

and supplying drugs. Detective Youngblut testified that, by talking to Pierce, he

“determined that [Pierce] knew [Hood] was up in the apartment. He wouldn’t fully

admit it, but he wouldn’t also deny it.” Furthermore, even if we were to excise

these statements from the affidavit, probable cause still supports the warrant as

described above.       Finally, trial counsel acknowledged discussing these

inaccuracies with Pierce but decided it would be “a mistake to . . . point out every

little discrepancy.” “Miscalculated trial strategies and mere mistakes in judgment

normally do not rise to the level of ineffective assistance of counsel.” Ledezma,

626 N.W.2d at 143. Therefore, Pierce’s trial counsel did not breach an essential

duty by failing to challenge the inaccuracies in the warrant application.

       V.     Warrant to Search the Durango

              A. Standing to challenge the search of the Durango

       In challenging the warrant to search the Durango, Pierce claims the police

conducted an illegal search when it used the drug-sniffing dog. Without the

evidence from this illegal search, he argues, the warrant lacks probable cause.

See Naujoks, 637 N.W.2d at 111. The district court rejected his motion to suppress

evidence from the search of the Durango because (1) he had no standing to

challenge the search; (2) he had no expectation of privacy in the Durango after it
                                         12


was previously searched pursuant to a warrant; and (3) even without the

challenged information, probable cause supports the warrant. In arguments to us,

Pierce only claims his trial counsel was ineffective for failing to prove he had

standing to challenge the search. Regardless of whether he had standing to

challenge the search of the Durango, he does not address the two other grounds

the district court found when rejecting his motion to suppress. Therefore, even

assuming he had standing to challenge the search, Pierce has not shown his

counsel breached an essential duty by failing to do so.

              B. Investigation into drugs found in the Durango

       Pierce also argues his counsel was ineffective for failing to fully investigate

the drugs found in the Durango, including whether the Durango would operate with

the baggies of drugs found in the air filter. Apparently, he believes such an

investigation would show the drugs could not have been in the air filter when police

impounded the Durango.

       Pierce bears the burden of proving ineffective assistance. See Maxwell,

743 N.W.2d at 196. Pierce testified he did not believe the Durango was drivable

with baggies of drugs in the air filter and the bags looked clean like they had

recently been placed in the filter. He also presented two witnesses with auto

mechanic experience who testified they did not believe the Durango would run with

baggies of drugs in the air filter. However, one of his witnesses acknowledged the

Durango could run relatively well if the baggies remained in place, and the

photographs he reviewed provided no indication the baggies had been sucked into

the air filter. The record also contains evidence of the security at the impound

facility and the confidential informant’s statements that Pierce knew the drugs were
                                          13


hidden in the “blower” of the Durango. Furthermore, Pierce’s trial counsel testified

he considered this evidence and decided not to investigate whether the Durango

would run with drugs in the air filter, and such strategic decisions are typically not

ineffective assistance.    See Ledezma, 626 N.W.2d at 143.            Considering all

evidence in the record, Pierce has not carried his burden to prove his counsel

breached an essential duty by failing to investigate the drugs in the Durango.

       VI.    Evidence Related to the Confidential Informant

       On January 8, 2017, after the PCR hearing, Pierce filed additional evidence

with the trial court, including a transcript of Detective Youngblut’s conversation with

the confidential informant and Detective Youngblut’s reports of the conversation

and ensuing investigation. Pierce also filed an affidavit from himself, claiming the

State had only recently provided this evidence and he would not have pled guilty

if he had had this evidence.1

       Pierce argues the lateness of this evidence resulted from ineffective

assistance. However, he does not point to any exculpatory information in this

evidence. Therefore, he has not carried his burden to prove his counsel breached

an essential duty by failing to obtain information about the confidential informant.

       Pierce also refers to the lateness of this evidence as a Brady violation,

which is a due process violation resulting from the suppression of evidence. See

DeSimone v. State, 803 N.W.2d 97, 103 (Iowa 2011) (citing Brady v. Maryland,

373 U.S. 83, 87 (1963)). To establish a due process violation, Pierce “must prove

by a preponderance of the evidence ‘(1) the prosecution suppressed evidence; (2)


1
 In its brief, the State acknowledges it provided this evidence to Pierce after the PCR
hearing.
                                         14


the evidence was favorable to the defendant; and (3) the evidence was material to

the issue of guilt.’” Id. (quoting Harrington v. State, 659 N.W.2d 509, 516 (Iowa

2003)). Even if we assume the State suppressed the evidence, Pierce has not

pointed to any information in the evidence that is favorable to him or material to

the issue of guilt. See id. Therefore, Pierce has not carried his burden to prove

the State violated his right to due process by suppressing evidence related to the

confidential informant.

       VII.    Preparation for Trial

       Finally, Pierce argues the substitution of his counsel a week prior to his

scheduled trial resulted in ineffective assistance because his new counsel was not

prepared for trial. He does not point to any specific actions his new counsel did or

did not take that constitute ineffective assistance. Rather, he generally claims the

substitution resulted in him “believing his only option was to enter a guilty plea.” A

guilty plea must be intelligently and voluntarily made, and counsel’s failure to

challenge an insufficient plea is a breach of an essential duty. Straw, 709 N.W.2d

at 133. The only evidence Pierce’s plea was not intelligent and voluntary is his

testimony at the PCR hearing. Prior to accepting Pierce’s plea, the court engaged

him in a full colloquy—which included an affirmation that he was satisfied with his

new counsel—to verify his plea was intelligent and voluntary. Therefore, he has

not shown his counsel breached an essential duty in failing to prepare for trial.

       VIII.   Conclusion

       Pierce has not shown either prejudice or breach of an essential duty

because his trial counsel failed to file a motion to suppress evidence from the

search of the apartment, properly argue the motion to suppress evidence from the
                                           15


search of the Durango, obtain evidence related to the confidential informant, or

prepare for trial. Therefore, we affirm.

       AFFIRMED.
